### TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03

- 19

- 00509

- CV

Texas Health a nd Human Services Commission, Appellant

v.
Ethan Vestal, Appellee

FROM THE 345TH DISTRICT COURT OF TRAVIS COUNTY NO. D

- 1

- GN

- 18

- 001435, THE HONORABLE SCOTT H. JENKIN S, JUDGE PRESIDING

M E M O R A N D U M O P I N I O N

After Ethan Vestal was terminated from his employment at Terrell State H ospital

(the Hospital )
, he sued the Texas Health and Human Services Comm ission (the C ommission )

under the Texas Whist l ebl o w e r Act. Se e Tex

. Gov ’ t Code § § 554.00 1

- .010

. I n this in terlocutory

appeal, t he Commission asser ts that the trial court erred in denying its jurisdictional ch a ll enge to

Vestal ’ s suit. See Tex. Civ. Prac. & Rem. Code § 51.014(a)( 8)

. Specifically
, the C o m mission

a rgues that Vestal ’ s suit is barred by im munity because th e allegations and the evid ence fail to

show that Vestal was terminated because he reported illegal conduct and no t for other legi timate

reasons

. B ecause we conclude th at the evidence is s u f ficient to cre ate a fact issue on this

question , we affi rm the trial court ’ s order.2 IMMUNITY AND THE WHISTLEBLOWER ACT

The doctrine of sovereign immunity ge nerally bars suit s against the State or its

subdi visions, a bsent a legislative waiver

. U n ive r s i ty of Tex . at Aust in v. Hayes
, 327 S.W.3d 113,

11 5 (Te x. 2010) ; Stat e v. L ue ck , 290 S .W.3d 8 7 6 , 88 0 (Tex. 2009). Sovereign immunity

implicates a court ’ s subject

- m atter jurisdiction to hear a case

. Engleman Irrig ation Dist . v.

Shields Bros., I

n c. , 514 S

. W .3d 746, 755 (Tex. 2017 )

. When a government defendant challenges

jur isdiction based on immunity, the p la i ntiff ’ s burden to a ffirmatively demons tra t e jur isdiction

i ncludes the burden of establishing a waiver of immunity

. Town of Sha dy Shores v. Swanson
,

5 90 S .W.3d 544 , 55 0 (Tex. 2 019)

. To determine if the plaintiff has met that burden, the court

consider s the facts alleged by the plaintiff and, to the extent relevant to the j uris dictional issue,

the evidence submitted by the parties. D allas Are a Rapid T ransit v. Whitley , 104 S.W. 3d 540,

542 (T ex. 2003).

The Whi stleb lower Act waives a g overnmental entity ’ s i mmunity from suit t o the

ex t ent the ent i ty is liable under th e Act. See Tex. Gov ’ t Code § 554.0035

. Consequently, the

element s of a claim under t h e Act are a lso juri s di c t i on al facts

. Lu e ck , 290 S.W.3d at 881

- 82

.
When the trial co urt ’ s jurisdic tion is premis ed on a violation of the W hist le blowe r Act
, the

plaintiff meets his burden of affirmatively demonstrating jurisdiction by alle g ing fact s or

pr o du cing evidence of fac ts s u fficient to establi s h (1) that he w as a pub li c e mploy ee ( 2) with a

good

- fa ith belief that he was rep orting a viola tion of the law as defined by Section 554.001,

(3) that the report was made in good fa ith to an appropriate law

- e n fo r cement authority
, and

(4 ) h e was su b

je ct to an adverse pe r son n el act io n, such as sus pension or te r mination

. See Tex.

Gov ’ t C ode § 554.002 (a)

. A lthough t he Whistleb lower A c t does not exp ressly incl ude the

element of “ causation
, ” the Texas Sup re m e Court has recognized th a t the plaintiff mus t also3

demonst rat e a “ but

- for ” causal c onnection between his report and the a dve r se per sonnel actio n

. Office of the Att ’

y Gen. v. Rodriguez , 605 S.W.3d 183, 192 (Tex. 2020); Te xas Dep ’ t of Human

Servs . v. Hin d

s , 904 S. W.2d 629, 636 (Te x

. 1995)

.
When , as in this case, a jurisdic tional challeng e to a Whistl e blower Act claim

challenges the existence of one o r more e lement s of the c laim
, the challenge must be denied

if the eviden ce , viewed in the ligh t most fa v o ra ble to t he nonmovant, c re ates a genuine issue

o f material fact as to each of the challenged elements . See T own of Shad

y Shores , 590 S.W.3 d

at 55 2 ( explaining that “when a challenge to jurisdiction that implicates the merits is properly

made and supporte d, . . . t he plaintiff w i ll be required to p r esent suffic ient evide nc e on the me rits

of h er claim s to c reate a genuine issue of material fact ” )

. We review the tr ial court ’ s rul ing on

the challenge under a de n ovo standar d of revi ew. Id.

BACKGROUND

Ve stal was e m ployed b y the Hospital , whic h is oper ated by t he Co mmission, as

a ps ychiat ri c nursing assi stant beginning in July 2017

. According to the undisputed allegations

in Ves tal ’ s pleadings and the jurisdictional evidence presented by the parties
, view ed in the

light mo s t fav orable to Vestal, d u ring his emp loyment, V esta l reported witnessing four separa te

inc idences of al leg ed a buse by other hospital e mplo y ees toward patients

.

According to his pleadings, Vestal made his first report after he witne ssed a
Hospita l em pl o yee , Br ian Alex ande r, choke and then “ s lam a patient to the ground

. ” Th at

incident allegedly occurred on September 1 1, 2017, and Ve stal rep orted the incident to the

Department o f F amily and Protective S ervices (DF PS) that same day and a f ew week s l ater t o the

Of fice of the Inspector G eneral (OIG )

. Later that same mo nth, Vestal made a second report after4

a p atie n t “ with multi ple brui ses co vering his body ” informed Vestal that “ a staff member had hit

him multiple times. ” According to Vesta l ’ s deposi tion t e stimony , su bmitted by the Com mission

in s uppor t of its plea and motion, Vestal made a third report in early October 2017. In this

report, Vestal notif

ied the DFPS and then the OIG that he had discovere d scratch ma rks and

choke marks on a juvenile p atient ’ s neck. A lthough Vestal did not witness the incident giving

rise to the m arks
, th e juvenile ’ s mother informed Vestal that the marks had been made by

Hospital sta ff while attempti ng to restrain the juv enile. Finally
, Vestal m ad e hi s fourt h report t o

the D FPS in late Oc tober 20 1 7, aft er h e allege dly witnessed an other employe e throw a juve ni le

to the ground and cause injury while the employ e e was engaged in what Vestal d escribed as

“ roughh ousing w ith the chi ldren. ”

On November 27, 2017
, Ve stal ’ s dir ecto r sup ervis or, N urse Man ager An thony

Brown
, initiated a termination of Ve stal ’ s employme nt

. O n December 29, 201 7, N urse

A dmin istrator Leslie Wi lson, Brown ’ s supervisor, no tified Vestal by letter that he was “ not

considered s uited to the p osi t ion a ssi gn ed ” a n d that h is em ploym ent was te rminated

. O n March

21, 20 18 , V e stal filed suit

. 1

In response t o Ve stal ’ s su it, and after discovery, the Comm iss ion filed a plea to

t he jurisdic tion combin ed wi th a no

- eviden ce an d tradit ional motion for summar y ju dgment

. Se e

id. ( ex plai ning tha t c hall enge to exist en ce of ju r isd ict ional facts that also implic a te merit s of

underlying clai m may b e made t hrough plea the jurisdi ctio n or by traditio nal or no

- e vidence

moti on for summa ry judgment). I n its ple a and in i ts tradi tiona l mo t ion for summa r y j udgmen t ,

1 In his original petiti on, V e s t a l n a m e d t h e H o s p i t a l a s a c o

- d e f e n d a n t

. T he Commis sion and H o spita l m oved to dismi ss the Hospital from the suit be cause , according to the Hospital, it is
not a leg al entity separate fr om the Co mmissio n and th us not a proper party

. Vestal s ubsequ entl y fi led a n otice of non

- suit as to his claim s a gainst th e Hospital

. Se e T e x. R

. Ci v. P. 162 (dismissal

or non

- suit)

.5

the Commis sion asserted
, in part, that Ves tal had f ai led to pl ead facts or prod uce evidence

showing that th e individuals who mad e the decision to termina te his emplo y ment had an y
knowledge of his alleged Whi st l eb lower re ports and
, mor eove r, th a t the e vi dence aff irma tive ly

shows that the se individuals did not lea rn of the alleged reports until Ve stal filed suit. In its

no

- evidence motion for sum ma ry judgm ent , the Co mmiss ion arg ued that Ve s t al could not

succeed i n his Whis t l ebl o wer Act claim b e cause he could not pro du ce more than a scintilla of

e vi dence on any of the e lements of the claim.

Foll owing a hearin g on the Commission ’ s plea and motion, the trial court signed

an o r der deny ing the Commiss ion ’ s plea t o th e ju risdi c tion

. In i t s ord er, the Co urt explained tha t

it was de nying th e ple a because Vestal had, “ a t a mini mum, raised a f act question on his good

faith b elief

” that he made h is reports to “ appropriate law enf or ce m ent

. ” I n the same orde r, t he

trial cou rt also d e nied t he Commi ssion ’ s no

- ev ide n ce moti on for summary judgment a nd

trad itional motion for summary jud gment , stat ing in part th at Ve stal had pr esented evidence

sufficient to rais e a fa ct issue on “ causatio n. ” Thi s interlocutory appeal followed.

In one iss ue o n appe al, the Commissio n arg ues that t rial c ourt erred i n failing to

d ismiss Ve stal ’ s suit because
, acc ording to the C ommission, Ve stal f ailed to present more t han a

scintilla of evidence to show that he was fired be cause of his repor t ing and because t he e v idence

in stead sho ws that h e was term inate d solely for a legi timate reason

.

ANALYSIS

To establish th e elem ent of causation in a Wh istl eblower Act case , an e mploye e

must d emonstrate that he “ suffer ed d iscriminatory conduc t by his or her e mployer th at w o u ld

not h ave occu rred whe n it did if t h e em plo y e e had not r eported the illegal c onduct. ” City of6

Fort Worth v

. Zi mlich , 29 S.W. 3d 62, 67 (Te x. 2000). The employ ee does no t , however, hav e to

prove that his reporting was the so le cause f or t he employe r ’ s a dverse pe r son n el action

. Hin ds
,
904 S. W.2 d at 63 4.

Cir cumst antial evidence may be sufficie nt to e stablish a causal conn ect ion

betw een an adverse employ ment action and the e mpl oyee ’ s good

- faith reporting

. Zimlich,

29 S.W .3d at 69

. Such evidence i nc lud e s : (1) kn owledge of the report of illega l c ondu c t,

(2 ) expressi on of a negative atti t ude to ward the employee ’ s re port of the conduct, (3) fai lur e

to adhere to established company policies regarding employment de cisions, ( 4) discriminato ry

tr eatment i n c omp a rison to similarly sit uated employees, and (5) ev ide nce that t he stated reason

for t he adv erse emp loyment action was false. Id

. A plaintiff n eed n ot present evidence

in volving all five categories to prove cau sation. T ex as Dep ’ t of Crim. Justice v

. Mc El y ea ,

23 9 S.W.3d 842, 856 (Tex. App.

— Austi n 2 007 , pet . denied )

. How ever, the e vidence must, a t

a mi ni mum, “ show that the person who took the adverse employme nt ac tion knew of the

employ ee ’ s report of illegal conduct. ” Ki rkl and v. Cit y of A ustin , N o

. 03

- 10

- 00130

- C V,

2012 T ex . App. LEXIS 2769 , at *7 (Tex. App.

— Au stin Ap r. 5, 2012
, n o pet. ) (mem. op.)

( qu oting Harris Coun ty v. Vernaga llo , 181 S.W.3d 17, 25 (Tex. App

. — Hou ston [1 4th Dist.]

2 005, pet. denied) )

. “ This is because the de cision

- make r could n o t fire an empl oyee be caus e of

the employee ’ s report of alleg ed ille gal co nduct if t h e decision

- maker di d not eve n know the

employee made such a report. ” Id.

In resp onse to the Commission ’ s motion for summar y judgment
, and now on

appeal, Ve stal argues i n part that h e is en title d to the rebu tta ble presumption fou nd in S ect ion

554.004(a ) of the Act. Sect ion 55 4.004(a) p rovides that when the suspen s ion, termination , or
adverse per sonnel action occ ur s not later than the “ 9 0th day after the date on which the emplo y ee7

repor ted a violation of law, t he suspensio n , termi nat i on, or ad ve rse per s onnel acti on is p resumed,

s ubject to rebuttal, to be because t he employee made the rep ort. ” Tex. G ov ’ t Code § 554.0 04 (a)

. When applicable, th is s tatu tory presumpti on reli e v e s th e e mployee of his initial burden to prove

that he was term inated b eca use h e reported a vi olation of the la w. Texas A&M Univ. v. Chambe rs ,
31 S.W.3d 780, 784 (Tex. App.

— Aus tin 2000, pet. denied ). The presumption does not shift the

burden of proof , ho w ever , and stan ds only in th e absence of evidence to the cont ra ry

. C ity of

F or t Worth v. Jo hnson , 105 S.W.3d 154, 163 (Tex. App.

— Fort Wor th 2003, no pet. ) ( citing

T exas Nat

. R es

. Conservation Comm ’ n v. McDill , 914 S.W.2 d 718, 723 (Tex. App.

— Austi n

1996, n o wri t )). Th er efore, o nce an employer pro duces suffic ient evi den ce t o s upport a find ing

of the n on ex iste nc e of a caus al connect i on between the employee ’ s termination an d the rep or t,

the c ase then proceeds as if no presum ption ever existed. Chamb ers , 31 S

. W.3d at 784

.

Here, the undisputed eviden ce shows tha t Ve stal ma d e his last rep o rt in Octo ber

201 7 and that he was terminated i n Decem be r 201 7. Consequently, a pre sumptio n arises that

Ve stal was te rmi nate d due to his reporting , and i n the abse n ce of evi d ence to the co nt rary, th is

presumption is suf

ficient to c rea te a ge nuine issue o f fact on the ele m ent of causation

. See Tex.

Gov ’ t Co de § 554.004(a); J ohnson
, 105 S.W.3d at 163

. Therefore, to prevail o n i ts ju risdictional

challenge ba sed on its assertio n tha t Ve stal c annot produce legally sufficient evi dence to

s upp ort the eleme nt of c ausation
, the Commission w as require d to fi rst re but this stat utory
presumption by produc ing at least so me evidence to supp ort a find ing of the no n e xi stence of

th e causa l c onnec t ion.

O n appeal, the Commission argues tha t Ve st al c ann ot r ely on the A ct ’ s

pr esumption to defeat su mmary judg ment bec ause , in the C ommission ’ s vi ew, the record

conclusively shows tha t the in div iduals who mad e the final deci sion to term ina te Ve stal ’ s8

em p loyment

— V estal ’ s dire ct sup ervisor, Ant hony B r own , and B r ow n ’ s d irect sup er vi sor ,
Leslie Wilson

— did n o t have any knowled ge of Vestal ’ s report s and t hat he w a s terminated for

a legi timate, non

- reta lia to ry rea son that is unrelated to his alleg ed report s

. I n s upport of these

asse rtions, the Commissi on rel ie s on decl ara tions b y B rown and Wi lson
, attach ed to it s motion

fo r summary judg ment

. See Tex. R. Ci v. P. 166(a)( f) (form of affi davit in sup port of o r in

opposition to summary judgmen t) ; see al so T ex. C iv. P rac. & R e m. Code § 32.001 ( prov i din g

th at unswo rn de cla ra tion may be used in l ie u of affidavit “ requi red by sta t ute or required b y a
rule, order, or requirement adopted as pr ovide d by law ” )

.

Acco rdin g to B rown ’ s declaration
, Vesta l was term ina te d d u e to his failure to

follow Comm ission pol icy reg ardin g the “ w an ding ” of patients (i.e. , the use of a hand

- h eld metal

d ete ctor )

. I n his a ff

id a vit, in relevant part, B rown states :

4. On November 2 7, 2017, I initiated probat ionary separat ion (ter mi n a ti on) b ecaus e of Mr. Ves ta l ’ s failure to fol low [Co mmi ssion] p olicy . My decision w as based on in for mation I rece ived that whil e Mr. Ve stal was at another facility ho spital with a pat ient, he observed the pa tien t conceal an item that appeared t o be metal f or k i n his b edding. . . . Mr. V estal return e d to [ the Ho spita l ] wi th the patient, who was known to be high risk du e to previou s vio lent conduct but failed to wand the pa tient with a handheld metal detector when they arrived. Mr. Ve stal also f ailed to i nf

or m a n y one a t [the Hospital] tha t the re was a p ossi ble fo rk o r othe r contra band in the patient ’ s pos s ession . A s hank fashioned out of a fork was later fou nd on [the Ho spital ’ s ] premise s . Ba s e d upon this incid en t alone, I found Mr. Vestal to b e un suitab le f or h i s pos i tion.

5. Mr. Vestal ’ s failur e t o wa nd the pa tient a nd/or to report t h is incident p lac ed the [Hospi tal] staff and all the other clients at ri sk for bo dily injury and even death. The failure to wan d a patient retur ning from off

- cam pus visits i s a

v i o la tio n of the [H osp ital ] Walk

- t hrou gh Meta l D etec tor P olic y. A true and co rrect copy of tha t policy is a ttached here a s Exh ibit 2. The policy req uires, among other things, that hand

- held d etectors, or “ wands, ” be used on a ll patients c oming back f ro m o u t si de facilities. The purpose of th is requ ire ment is to pr operly screen all patients retu r ni ng from outsi de facilities for i tems, including me tal o bjects such as for k s, that pose a threat to the safety a nd w el fare of [Hos pital] patients and staff an d acc o r di ngl y, are prohibi ted.9

. . .

10. O n No v emb er 2 6, I re c e ived an email fro m [a nurse at the Hospital] in f ormin g me of the i ncident with Ethan Vest al and the fork/shank d iscover ed at [the Ho spita l]. The following day, I forwar ded that e mail to [H u ma n R e s o urce s staff] and my s uperv isor, Les li e Wil son , in d icat ing that I wanted t o initiate proba tio nary separati on.

A s to the reports made by Ves tal , B rown st ates:

8

. On or about September 11, 2017, d uri ng my shi ft as nurse coordinator, I

r eceived a c al l fr o m [ a Hosp ital nu r se] who ind ic at e d th at Mr. Vestal wi tnessed [another employee] chok e a patient . Du ring our conve rsati on , [the Ho spital nurse ]

a ppeared to be ver y concerned and wanted to know what the y should do. I instructed [the Ho s pi tal nurse] to hav e Mr. Vestal immed iately re port t h e in ci d ent to DFPS, and that anyone e lse who might hav e wi tnessed t he incident ne ed ed to

r eport it imm ediatel y a s well.

9. Termi nation of Mr. Vesta l ’ s pro bationary em ployment was in no way related to any alleged r e p o rts o f viol ations of l aw that he m ade to DFP S and /or OIG. I was not even a ware that Mr. V es tal had made any reports ot her t han the report to DFPS reg arding the incident involving Brian Ale xander. In fa ct, because [Hos pital] employees are requ ired to r e p ort al l a bus e or neglect, it w ould be a vi ola tion of poli c y for Mr. Vestal not to r e port the i nci den t he observ ed . Fail ure to r epor t abuse, neglect or exp loi tation to DFPS is grounds for dis ciplinary action.

Similarly, in h is declaration , Lesl ie Wils on states :

3

. I n November 201 7, I re cei ved not ice that Mr. Vestal ’ s probationary sep ar ation (or te r mi nation) was i n itiated by An t hony B r own , [Hosp ital] Nurs e M anager, because of Mr. Vestal ’ s fail ure to follow [Ho spital] p o licy. I was informed that Mr. Ve st a l negle c t ed t o wa nd a patient u pon r e turn to [the H osp ita l] fro m an outside facility wher e he saw the p ati ent stash an item that coul d hav e be en a fork in his be ddi ng. Mr. Ve stal also failed to report th e incident to an yone at [the Hosp ital] bef

ore a s ha n k fashi o n ed o ut o f a fork was disc ov e red on [Hospit al] pr em ises

. The pa tient later admit te d to hiding th e fork, bringi ng it into [th e Hos pital] , and fashi oning a s hank out of it. Mr. Vestal ’ s failure to wand and report thi s incident enda ngered the saf et y of all p a tie nts and staff at [the Hos pit al]

. B ase d upon thi s neg ligent c ondu c t, I agreed with Mr. Brow n ’ s de terminat ion that Mr. V es tal was unsuit a ble for his position. No o the r factors formed the basis for

m y decision to approv e Mr . Vestal ’ s t ermina ti on

.10

6. T e r mina tion of Mr. V esta l ’ s pr oba tion ary em ployment w as in no way rela t ed to any alleged reports o f violations of law that he made to DFPS

a n d/or OIG. I can state wit h p ersonal knowledge and certainty that none of my decis ion s regarding Et han V es tal were m a d e wi th any intention of re t a li atin g
a gai nst him on any basis wh atso e ver. In fact, prior to h is filing this la wsuit, I was
not aware of a n y re ports M r. Vestal made r e ga rding any allege d violation s of law
at [the H osp ital]

.

We agree wi th th e Com mission ’ s ass ertion that th is evid en ce c o nst itutes more

t han a scin tilla of e vidence that Ve stal wa s terminated f or reasons unre l ated to his reporting

of alleged violation s o f law

. That is, the declarations are sufficient to s upport a finding th at

Ve stal was ter m i nate d not based on any repo rt of i lle gal activity but instead du e to his neglig ent

con duc t in failin g to foll ow the Commission ’ s “ wandin g ” pr o tocols and po l icies

. See Chambers
,
31 S.W.3d at 784 (ex plaining that o nce an employer pro duces su ff ic ien t evi de n c e “ t o s upport a

find ing of non

- retaliation, the c ase proceeds as if no presum ption [ under Section 554.004 (a)]

ever existed ” ) ; see also Tex. Go v ’ t Code § 554.004( b) ( “ I t is an affirmative d efens e that the

[ employer] w ould have tak en the a cti on agai nst the e mplo yee that for ms the basis of the suit

based so lely on information
, o bservati on , or evi dence that is not related to the fact t hat the

employee made a r eport pr otecte d under this chapter of a violation of law. ” ). Consequent ly, we

concl ude t hat a pplicat i o n of the statut ory presum ption , standing alone, is insufficient to support

the t rial cou rt ’ s jurisdic tion al ruling in this case.

We disagree , however, with the Commission ’ s assertion th at Wilson ’ s and

Brown ’ s de clarations conclusively e st ablish tha t th e i ndi vidua ls respo nsib l e for the d ecision to

term inate Ve stal ’ s employment we r e unaware of t he report s o f ill egal conduct that are t he basis

of Vestal ’ s claim

. Al though the parties agree that Brown and Wilson wer e responsibl e for the

dec i si on to t erm in at e V est al ’s employme n t , the declarat ions establish t hat Brown
, Vestal ’ s direct11

superviso r, was awar e of at leas t one of the inciden ts th at Vestal r eported

— specifically, th e
September 2 017 inci den t that le d to Vestal ’ s first report to the DF P S

. Moreo ver , Br o w n

a c kn owledges in h i s decl aratio n that he was a ware that Vestal made “ the report to DFP S

regar ding th e incident involving Brian Alexander ” and that it would have been a violation of

Commis sion policy for Vestal to have not repor ted the i n c ident

.

F urt he r , i n his r e sponse to th e Commission ’ s plea and motion for summary

jud gment , Ve stal att ached B rown ’ s a nd Wilson ’ s depositi on testimony as e vidence in support of

his Whist l eblower Act cl aim

. In his deposition, Brown a cknowledged re ceiv ing an e

- mail i n

No v e m b er 2 01 7 from n ursing coordinator Nakia C ole, in which Cole explained th at she was
having “ issues f

indin g an [o ver time ] assign ment f or [Vesta l ]

. . . due to RN s not wanting him

workin g on the Unit, under their supervision
, under t heir li c ense. ” Ac cord i ng t o th e e

- mail
, o ne

of the nurses reported t o Cole that she believed Vest a l was mentally unstable and was “ on a

mi ssion t o do God ’ s work and c l ean house here. ” Brown denied that the issue with the nur ses

was related to Vestal ’ s r e porting but adm it t ed t hat h e di d not i n vestigate further into the re asons

for the nurse s ’ refusal s to w ork with Vestal.

Simil ar ly, in his de position
, Wil son recounted a meeting that he had with Ve sta l

aft er a nurse manager repo rted to h im that “ staff w ere not wa nting [ Ves t a l] to w ork over there. ”

During that meeting
, Vestal told Wilson that he be l ieved that he was havin g a prob lem with his

co

- worke rs beca us e “ pe ople just don ’ t like me ” a nd “ t hey think I ’ m going to turn them in. ”

When W ilson was asked in the d ep os iti on wha t he tho u g ht V est al me ant by “ turn th em in, ”

Wilson explained
, “ I had as sume d i t was about our DFPS program or abuse and neglect

allegat ion program

— you know, protoc ol and what we have to do. But , you know, I also told

him everybody ha s to do that , t ha t it ’ s r equi r e d of al l employees that the y suspe ct or have12

knowledge o f. ” There fore, although Wi lson d enie d in his declaration that he was actually aware

of any of Ves t al ’ s report s prior to t hi s lawsuit, Wilson ’ s depositio n testimony sugg ests th a t

Ve sta l
, in f

act , in f o rmed Wi lson that his co

- wor kers were hostile to wards hi m and that, in

Vestal ’ s view, th is was due to his repor ting of i llegal conduct.

“ In determining caus ation, we focus on those with authority in the decision

m aking proc ess tha t res ult ed in t he adve r s e em plo yment acti on and whe ther the re is

evidence ‘ that the dec isi on

- maker or decision

- makers ’ act ed with retaliatory moti ve. ” Rodriguez
,

60 5 S.W.3d at 193. Here, the evide nce suggest s th at whe n Ve stal was term inated
, the H o spital

empl oyees resp onsible f

or t hat decision ( Brown and Wilson ) knew that he h ad reported illegal

conduct at least on ce during his 6

- mo nth em ployment

. See i d. (re cogni zing that “ knowledge of

the report i s a fo rm of c irc umstan tial ev idence ” ). In additi on , mor e tha n a sc inti lla of e v iden ce

ex is ts that B rown and Wilson knew th at Vestal was having problems with his c o

- worke rs and

that Vest al b elieved thos e problems were because of his reporting ; however, neither B ro wn n o r

W ilson investi gated the iss ue furt her

. I n stea d, within a month o f hi s last report , and the same

month that Cole reported that nursing staff did no t want to wo rk with Vestal
, B rown initia ted

the termination of Ve stal ’ s employment. See id

. ( “ The t im e th a t p asses between the pro tected

condu ct and t he a dverse per sonnel a c tion is als o relevant t o any causal connect ion

. ” ).

Viewing the evidence in the li ght most favorable t o Ves tal, we conc lude t hat a
genuine issue of mate rial fact exists as to whet he r Ve s ta l ’ s reporting was a but

- for cause of the

C ommiss ion ’ s deci sion to t ermi nate his employment when it did. Con sequently, the trial court

did not err in denying t he C ommiss ion ’ s juris dictional challenge on this ground.13 CONCLUSION

Having overruled the Commi ssio n ’ s sole issue on appeal, we af firm t h e trial c ourt ’ s

o rder de n y ing th e Commissio n ’ s plea to the jurisd iction and motion fo r summary judgment.

___________ ________________ ______________ _ Chari L. Ke l l y , Ju sti ce

Before J u s tices Goodwin, Baker, Kelly

Affirmed

Filed: December 10 , 2020