McDill also argued he was a victim of ag e discrimination, but he does not a ppeal that issue. 1 

### TEXA S C OU R T OF A PPEAL S, THIR D DIST R ICT , AT AU STIN

NO. 03-03-00705- CV

Thom as P . M c Di ll, Jr ., App e lla nt

v. Texas Depart m ent of Transp ortat ion, App ellee

F ROM THE DISTRICT CO URT OF TRAVIS COUNTY , 98TH JUDICIAL DISTRICT NO. 99-1 3049 , HO NORAB LE MARGARET A. COO P ER, JUDGE PRESIDI NG

M E M O R

A N D U M O P I N I O N Appellant Thomas P. Mc Dill, Jr. sue d appellee Texas Depar tment of Tra

nsportation fo r un lawf

ul t e rm inatio n, a lle g ingvio la tio ns of the Whis tle blo we r A c t. See Tex. Gov’t Code Ann. 1 §§ 55 4. 01 -. 01 0 (We st 200 4)
. F oll ow ing a te n d ay tr ia l, t he jur y fo un d in fa vo r o f t he De pa rtme nt. Mc Di ll a pp e a ls, arguin g tha

t th e tr ia l c ourt

e rr e d in re fu sin g to i nc lud e jur

y ins tr uc tio ns re la te d to
c on str uc tiv e dis c ha

rg e and “ a dv e rs e pe rs on ne l a c tio ns .” We a ff ir m th e tr ia l c ourt ’s jud g me nt.
Bac kgr ound McDill was employ ed by the Depa rtment as a contra ct claims eng ineer , wh i ch require d him to analy

ze c onstruction claims submitted by private c ontrac tors. He r eviewe d projec t2

p l an s , i n t e r

v i e w e d i n v o l v e d p art i e s , an d

m a d e r e c o m m e n d a t i o n s a s t o t h e r e s o l u t i o no f c l a i m s . In
a bo ut A pr il 199 9, iss ue s ar os e in two se pa ra te c la ims , the de ta ils of wh ic h ar e un imp or tant. I n s ho rt , McDill alleg es that he r eporte d irregularities in one cla ims report while the D ep artment c ontends that McDill err ed in his review and re port of t h e cl ai m, and in the other instanc e, McD ill rece ived a verba l reprimand f

or his involvement with a claim to which he was not assig ned; McDill testified that h e wa s asked by

a super visor to talk to the claimant and make a re port. Reg ardle ss of which version of these events is true , McDill was not f ired, nor did he quit or file a c omplaint. McDill was te rm inate d in

Au g us t 19 99 , a ft e r h e too k a lmo st s ix we e ks of va c a tio n le a ve wi tho ut a

pp ro va l. Depa rtment policy

require s employ ees to obta in their supervisors’ pre- approva l for
vacation leave. At lea st once in the pa st, McDill submi tted a wr itten reque st for vac ation to a
su pe rv iso r, and

in Janu ary 19 99 , McD ill and oth e r De pa rtme nt em plo y e e s we re a sk e d to inf

or m th e ir supervisors throug h email about vac ations and other o u t -o f- o ff ice da y s. I n the summer of 1999, McDill planned to drive to Wy oming to attend a family reunion and help his f ather with his ranch. Ac co rding to McDill, he beg an to discuss his plans with Rolando Besa , one of his super visors, as
ear ly as May 1999. McDill remembe rs talking to Be sa in late May about his proposed va cation, who tol d h im, “ Ok ay . L e t me g e t bac k with y ou on thi s” ; Mc Di ll w a s n ot s ur e if B e sa wa s r e fe rr ingto the vac ation plans or to a pr oject on which Mc Dill was working . McDill also posted his proposed
va c a tio n o n a

n o ff ic e pla nn ing bo ard in May or June 19 99 , indi c a tin g he wo uld be g on e fr om Jul y 19 un til Au g us t 23. Mc Di ll tes tif ie d tha t he spo ke to B e sa a g a in i n th e mid dle of June , a nd tha t B e sa

“ se e me d to i nd ic a te that th a t w a s f ine ” and ke pt u sin g the wo rd

“ ok ay .” On

July 1, Mc Di ll s e nt B e sa
an e ma il s ta tin g , “ As pe r our con versati on la st w e e k, Iint e nd

to t ra ve l to [Wy omi ng ] & Sou th3

Dakota to he lp my Dad on the r anch. I have six weeks leave ac crue d and will do some repor t writing while there if y ou would like.” On July 8, Be sa informed McDill that he could only approve a onewee k vacation due to the Department’s workload. Be sa st ated, “During our di scussion today , y ou indicated your intentions of taking the vac ation leave
. . . whether approve d or not . . . . Ihave
e xp l a i n e d p o l i c y r e qu i r e m e n t s t o y o u an d a l s o d i s c u s s e d t h e d i f f e r e n c e s b e t w e e n a

p p r o v e d vs . unapprove d leave and re sulting possible outcomes for employ ee se lf made decisions for takingany amount of unappr oved lea ve.” Be sa also told Mc Dill that a “hig h profile” repor t had to be finished b ef o re v ac at i o nt i m e co u l d b e ta k en . M cD i l l t es t i fi ed t h at h e ha d n ev er h ea rdt h e c l ai m ca l l ed“h i gh profile” befor e; he did, howe ver, sa y it was a d i ff

i cult claim that might involve a settlement
rec ommendation as hig h as $100,000. McDill also testified that it would have been impossible for him to finish t he re port befor e his trip, althoug h he had told Besa the repor t was 98% f

inished, pending the re ceipt of ne cessa ry data. Mc Dill said that if he ha d re ce i v ed earlier notice of the restric tion on vacation time, he might have chang ed his arr ang ements, but due to the late notice, he felt he ha d no option but to t ake his va cation as pl an n ed
. M cD i l l testified that he c alled human
resour ces a

nd asked w hat the cons eq u en ce s would be if he took se vera l weeks of unapprove d
vacation. He was told that, without previous vacation-relate d disciplinary issues, he would not be fired a nd could only

be subjec t to a prog ressive disciplinar y action. McDill testified that on about J u l y 1 9 , he broke out in hives due to work-r elated stress. His doctor prescr ibed pain killers, told him to stay home for ten day s, and wrote a note to that eff ect, whic h McDill dropped of f at his offic e. On J uly 22, McDill went to the office to work on a dr a ft , b ut t

he fi le wa s mi ssi ng fr om his de sk and a c ow or ke r s a id B e sa

ha d ta ke n o ve r t

he pr oje c t.4

On the morning of Jul y

23, McDill s ent Besa a

n email saying that he had c ome in to work on the
re po rt , b ut c ou ld n ot f

ind it. He c on c lud e d, “ I no w [co ns ide r] that on e in your h and s and Ipr e su me Iwill defend w hateve r when I return. Hope to mee t with y ou and Human Re source s at that time.” McDill then left for h i s v ac at i o n. That af ternoon, B esa r eplied by

email, updating McDill on the situation and noting that he thought Mc Dill would be out for medica l leave until Jul y 26. Be sa stated in the email that McDill reque sted an ex tended vacation even t houg h he knew about upcoming due date s, du e date s B e sa

did no t kn owa

bo ut u nti l so me tim e a ft e r M c Di ll s ub mit te d his re qu e st, and sa id Mc Di ll’ s me dic a l le a ve mig ht re su lt in fu rt he r de lay s. B e sa

c on c lud e d b y

statin g tha

t he ha d le ft

a note on McDill’s desk requesting a meeting about leave time and said that he st ill wanted to have that meeting . McDill testified that he ne ver sa w B esa’ s email bec ause it was sent afte r McDill left for va cation. McDill testified that while out on vacation he called the office about once a we ek but
was n ev er t o l d t h at his supervisors nee ded to speak to him or that he nee ded to re turn to work. Mc Di ll t e sti fi e d th a t he wa s a sk e d if he “ wa nte d to sp e a k wi th Mr
. B e sa ,” bu t wa s n ot t old that B e sa wanted to spe ak to him, that there w as any rea son he should talk to Be sa, or that Be sa wa s thinking
a bo ut f ir inghim . M c Di ll a lso te sti fied th at hi s mo the r c a lle d o nc e to s ay that so me on e fr om h is office had ca lled looking f or him. M cD i l l called the office and aske d Melissa Danie ls, the administrative assistant McDill worke d with, if there was a problem; she said “she wasn’ t awar e of any problem or a

ny thing.” McDill never

spoke to or at t em p t ed to contact B esa, did not leave a ph on e nu mb er at whi ch h e c ou ld b e re a c he d, and tol d a c ow or ke r h e did

no t w ant t o s pe a k to his
su pe rv iso rs , e sp e c ia lly

B e sa , b ut h e de nie d th a t he re fu se d to sp e a k w ithB e sa . M c Di ll or ig ina llyShortly afte r the c onversation between B esa a nd McDill, Urrutia submitted a r equest for 2 a two-we ek vacation. B esa initially approve d the re quest, but later a sked Urr utia to cut his vacation to o ne we e k. Ur

rutia a g re e d, bu t th e n h a d to take tw o a dd iti on a l da y s f or me dic a l r e a so ns . 5 pla nn e d to re tur

n o n A ugus t 18 , bu t he de c ide d to sta y in Wyomi ngun til the e nd of Au g us t be c a

us e
se v e r a l f a m i l y m e mb e r s d i e d i n an a c c i d e n t a t t h e e n d o f h i s v a c a t i o n . M c D i l l c a l le d a ndtol d Da nie ls a bo ut t he tr a g e dy

and no tif ie d th e m th a t he wo uld be awa y fo r a no the r w e e k. Whe n M c Di ll returne d to work on September 1 or 2, he w as informe d that he had be en ter minated for abuse of
va c a tio n. Mc Di ll wa s “pr e tty a ma zed ” and

sa id, “ I t w a s ju st a sto un din g tha t th a t ha pp e ne d. ” Mc Di ll l a t e r p i c k e d u p t w o c e rt i f i e d l e t t e r s t h a th a d

b e e nm a i l e d

t o h i s h o m e a d dr e s s w h i l e h e w a s a w a y. I n th e fi rs t le tte r, the De pa rtme nt n oti fi e d M c Di ll that he ri sk e d lo sin g his job du e to a ba nd on me nt,
an d i nt h e s ec o n d , h e wa s i n fo rm ed t h at h e h ad b ee n fi re d
. M cD i l l fi l ed an ap p ea l an d we n tt h ro u gh th e D e p a r tm e nt’ s administrative proc edure , seekingreinstateme nt. McDill said other employ ees ha d
rec eived pr og ressive discipline f or similar abuses a

nd wer e not terminate d. J uan Ur rutia, one of

McDil l’s cowor

kers, testified that under a n ear lier super

visor, a lar g e planningboard near Daniels’s de sk was used to tra ck employ ees’ out-of-of fice day s, but that Be sa did not use the boar d to trac k leave
. Although e mploy ees still wrote their le ave on the board “as a planning tool,” they

had to obtain appr oval fo r their r equeste d vacations. I n May or June, Urrutia he ar d

M c D il l a n d B e s a d is c u s s in g v a c a ti o nti me . H e r e c a ll e d th a t B e s a

s a id it w o u ld be “fin e” for McDill to m ake his re quest by email or by

“sticky -note.” Urrutia te stified that he understood B esa to be acknow ledg ing Mc Dill’s vacation request, not to be appr oving it, but neither did he hea

r B esa e x press disappr oval of McD ill’s request. During McDill’s vacat i o n , he spoke 26

twice to Ur

rutia, and dur ing the second call, Urrutia told McDill that he had to talk to a super visor. McDill responde d “strong ly ” that he did not want to speak to a supervisor, c ursing in his response.

Melissa Danie ls testified that she was the “mother he n” for McDill’s g roup and that she used the pla

nning boa

rd to kee p t rac k of employ ees’ wher eabouts. Da niels testified that employ e e s c o u ld

n o t s im p ly w r it e th e ir

v a c a ti o n s o nth e b o ar d

an d a s s u me th e y

w e r e a p p r o ved; employ ees a lso had to g et their super visors’ appr oval. Danie ls did not know when McDill’s vac ation
wa s w ri tte n o n th e bo ard , b ut s a id i t w a s “ qu ite so me tim e ” be fo re the va c a tio n w a s to sta rt . D a nie ls hear d Be sa and Mc Dill discussing McDill’s vac ation reque st, a nd said she hea

rd B esa use the word “okay” and thoug ht it was in the context of, “Okay . L et’s discuss it.” Da niels did not reca ll being asked to c ontact McD ill or to tell hi m to speak to Be sa while he was on va cation.

Be sa te s ti f ie d h e w a s aw ar e o f

th e p la n n in g b o ar d , b u t s a id

h e d id n o t u s e it

for trac king be cause it was on a diff ere nt floor than his offic e. B esa sa id McDill asked about va cation in M ay or June 19 99 bu t di d n ot y e t ha ve sp e c if ic date s, so B e sa

“ a sk e d him if w e c ou ld j us t di sc us s it late r.” Be sa testified that McDill ag ain mentioned vacation sometime befor e the end of J une, but did not say

when or for how longhe intended to be go n e. McD ill did not “see m pressed” to ge t Be sa’s a pproval a nd did not discuss it ag ain until the l as t we ek of J une, whe n he aske d about proce dures f

or g etting le ave time a

pproved; a g ain, McDill did not tel l Be sa how many day s he pla nn e d to take . N ot u

nti l th e la st w e e k o f Jun e did Mc Di ll t e ll Bes a

that he ha d a lr e a dy

pu t hi s
vacation request on the planningboard. B esa looked at t he board, saw McD ill’s notation, and said,

“ Do n’ t f or g e t, I ne e d y ou to co or din a te y our va c a tio n re qu e st thr ou g h me. ” Mc Di ll a sk e d if he c ou ld write his re quest on a notepa d, and B esa sa id, “I ’ll take it in a ny form or fa shion that y ou want to g et7

with me on it, including ver bal, but j u s t p l ease g et with me, coor dinate with me on y our leave reque sts.” On J uly

1, McDill sent Be sa an email with the dates he pla nned to be g one on vac ation. Be sa testified that whe n he re ceive d that email, he set a meeting , which was fina lly held on J uly

8, and af ter whic h he sent McDill the email stating that he could only approve one we ek of va cation. After McDill left, B esa tried to contac t him, leavingmessag es on McDill’s answ eringmachine a nd calling his mother, who was Mc Dill’s emerg ency contac t. McDi l l did not call Be sa bac k, leave a messag e, or se nd a letter

or ema il. On one occ asion, Daniels told B esa that McDill did not leave a messag e, did not want to speak with any one, and “ doesn’t eve r wa nt to talk to [ Be sa] ag ain.”
Constructive Discharge I n his f irst issue, McDill argues that the trial court err ed in r efusing hi s reque sted instruction on constructive discha rg e. Constructive discharge oc curs whe n an employ er makes conditions so intol era

ble that the employ ee r easona bly fee ls compel led to resig n. Passons v. University of Tex. , 9 69 S.W. 2d 56 0, 56 2 ( Te x. Ap p. —A us tin 19 98 , n o pe t.) . In a

dis c ri min a tio n s uit , constructive disc harg e may satisfy the dischar g e ele ment of the c laim. Id . To argue construc tive discharg e, it follows that the employ ee must actually resig n his employ

ment. See W

inters v. Chubb & Son, Inc. , 132 S.W .3d 568, 575 (Tex. App.—Houston [14t h Dist.] 2004, no pet.) (“ When an employ ee submits a letter

of resig nation, he may still satisfy the adve rse e mploy

ment action ele ment by pr ov ingthat he wa s c on str uc tiv e ly dis c ha rg e d. ” ). Un le ss t

he e mpl oy e e ha s b e e n c omp e lle d to resig n, he has not be en construc tively discharg ed. Se e id .; Passons , 969 S.W .2d at 562. Th e pa rt ie s d i s a gr e e ov e r w he the r M c Di ll’ s r e qu e ste d in str uc tio n w a s in

su bs tanti a lly
corr ect f orm and ther efor e whe ther McD ill preserve d err or. See Te x. R. C iv. P. 2 78 (f a ilure to8

incl ude jury

instruction is not reversible e rror unless party

seekinginstruction submit ted it to trial court in writing and in substant i al l y co rre ct form) . McDill cites to a re cent c ase f rom the Waco Court of Appea ls, in which the court held that err or was prese rved under similar circ umstances. See Coley v. Bay lor Univ. , 147 S.W .3d 567, 569 (Tex. A pp.—Waco 2004, pet. g rante d). We need not ad dre s s t h i s i s s u e, h o we v er , b ec au s e as s u m i n g M cD i l l p ro p er l y p re s en t ed h i s co n s t ru ct i v e d i s ch ar ge ins tr uc tio n a nd thu s p re se rv e d a

ny e rr or , th e tr ia l c ourt

did no t e rr in r e fu sin g it. McDill argues that he was constructively discharg ed bec ause B esa r efuse d to allow him to take all the vac ation time he soug ht and bec ause B esa’ s decision to limit vacations to one
wee k was made with too littl e noti ce for McD ill to chang e his vac ation plans. McDill argues that he wa s fo rc e d to c ho os e be tw e e n takin g his va c a tio n and po ssi bly los ing his job and c anc e lli nghis
va c a tio n a lto g e the r. Ho we ve r, e ve n if we a ssume that be ingfo rc e d to c anc e l or sev erely c ur ta il a planned va cation mig ht amount to conditions so i ntolerable that an employ ee would rea sonably fee l
co m p el l ed to re sign, see Passons , 969 S.W .2d at 562, the evide nce doe s not support McDill’s argument. McDill testified t hat he did not believe he would be terminated if he took his vac ation without approval a

nd he re turned to work a fter ne arly six wee ks, only to lear

n to his surprise that he h ad b ee n fi re d
. M cD i l l t h en ap p ea l ed , s ee k i n g re i n s t at em en tan d b ac k -p ay . M cD i l l d i d

n o tre s i gn from his employ

ment and ther e is no evidenc e that he f elt compelled to take action s t h at he kne w would result in his termination. Wit hout any probative e vidence of construc tive discharg e, see id. , there was no re ason for the jury char g e to inc lude instructions r eg arding constructive discharg e. See U.S. Tire-Tech, I

nc. v. Boeran, B.V. , 110 S.W .3d 194, 202-03 (Te x . App.—Houston [1st Dist.] 2003,9

pet. denied) . The trial c ourt did not abuse its discretion in ref using to include McDill’s reque sted
c on str uc tiv e -d isc ha

rg e ins tr uc tio n. We o ve rr

ule Mc Di ll’ s f

ir st i ssu e on

a pp e a l.
Adv e r se P e r so nne l A c ti ons I n his second issue, Mc Dill contends that the trial cour t erre d in refusingto include in t he c ha rg e langua g e re la te d to “ a dv e rs e pe rs on ne l a c tio ns .” Mc Di ll a rgue s th a t he pr e se rv e d h is
c omp la int be c a us e he “ ma de the tr ia l c ourt awa re of his the or [y ]” that the De pa rtme nt t oo k a dv e rs e
a c tio ns that le d to his c on str uc tiv e dis c ha

rg e . H e no te s th a t du

ri ngtr ia l, h e dir e c te d th e c ourt to h is third amende d petition, which alleg ed that the D e p a r tm ent took adver se per sonnel ac tions, submi tted a pre -trial propose d char g e including lang uag e related to adve rse a ctions, and mentioned ha rassment and adve rse a ctions in opening argument an d at other points during the trial. These actions, he
asser ts, sufficiently

direc ted the trial court’s attention to his claim of adver se per sonnel ac tion and to his objection that the char g e did not include any such languag e. We disag ree . At the cha

rg e conf ere nce, Mc Dill stated: [T] he plaintiff objec ts to the ins t ruction t o Question No. 1 that starts off , “You’ re instructed that Thomas Mc Dill’s report r eg ardingthe cha ng e orde r, Price Const ruction C hang e Or der N o. 5, must be such that without this report the Texas Depa rtment of Tra

nsportation’s d e cision to terminate Thomas Mc Dill’s employ ment would not have oc curr ed whe n it did.”
The c ourt overr

uled the objec tion, and McDill said, “Your Honor, the pla intiff has a pr oposed ins tr uc tio n o n c on str

uc tiv e dis c ha

rg e , w hic h I ’m ha

nd ing to y ou a t thi s tim e , in wr iti ng , a nd re qu e sts that it be inserted a s part of the instructions under Que stion No. 1 in the charg e.” T h e trial court10

denied M cD i l l ’s reque sted instruction. McDill did not refer to adver se per sonnel ac tions at the char g e conf

ere nce. I t is not enough to have made the t rial court awa re at the beg inning of

and eve n during tr ia l of the the or y of a dv e rs e pe rs on ne l a c tio ns . M c Di ll w a s re qu ir e d to a sse rt that the or y a t the c los e of the c ase a s well, in the form of a written reque st in substantially corr ect f orm. See Tex. R. C iv. P. 278. W ithout a reque st for such languag e, the tria l court could re asonably have a ssumed that McDill had aba

ndoned that cla im. McDill did not even make a ve rbal re quest for the inclusion of any s u ch l an gu age, muc h less a wr itten reque st that complies with rule 278. McDill has not prese rved e rror with reg ard to any jury char g e er ror r elated to a dverse personne l actions. See T e x. R. Civ. P. 274 (par

ty must make distinct objec tion to char g e err or), 278 (fa ilure to include instruction g ener ally is not rever sible err or if submission is not reque sted in w riting and in substantially corr ect fo rm ); Texas Dep’ t of Human Servs. v. Hi nds , 9 04 S.W. 2d 62 9, 63 7- 38 (T e x. 19 95 ) ( e rr or is prese rved if pa

rty seekinginstruction makes written reque st that, even if not entire ly corr ect, make s tr ia l court awa

re of c omp la int

and ob ta ins ru lin g on

re qu e st) ; Castleberry v. Bransc um , 721 S.W .2d 270, 276 (Tex. 1986) (rule 274 allows trial cour ts to c orre ct char g e err ors; objection that does not clea rly desig nate a lleg ed er

ror a nd explain grounds f

or complaint does not pre serve err or on appe al); Reliable Cons ultants, Inc. v. Jaque z , 25 S.W .3d 336, 347 (Tex. App.—Austin 2000, pet. denied) (“a ppellant neve r requested an instruction on the applicable di scount rate ; theref ore, a ny complaint of the tri al co u rt ’s failure to submit the issue or instruction is waived” ). We overr ule McDill’s
se c on d is su e on

a pp e a l.11 Conclusion Ha vin g ov e rr

ule d b oth of Mc Di ll’ s is su e s, we a ff

ir m th e tr ia l c ourt ’s jud g me nt.

__________________________________________ David Pury ear , J ustice Be fore Chief J ustice L aw, Justi ces Patter son and Pury ear Affir med Filed: Jul y

21, 2005