COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-11-00229-CV

JAYSON STEELE APPELLANT

V.

CITY OF SOUTHLAKE, TEXAS, 

AND WADE GOOLSBY, IN HIS 

OFFICIAL CAPACITY AS CHIEF OF 

POLICE SOUTHLAKE 

DEPARTMENT OF PUBLIC

SAFETY

APPELLEES

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FROM THE 96TH DISTRICT COURT OF TARRANT COUNTY

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OPINION

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In four issues, appellant Jayson Steele appeals the trial court’s order 

granting the motion for summary judgment and plea to the jurisdiction of 

appellees City of Southlake, Texas (Southlake) and Wade Goolsby, in his official 

capacity as chief of police for the Southlake Department of Public Safety (SDPS). 

We affirm.
2

Background Facts

Appellant worked for Southlake as a police sergeant with a primary 

responsibility of patrol. In 2005, Goolsby, who was licensed as a police officer in 

1980, became Southlake’s Chief of Police Services.

According to appellant, in 2006, he began to learn about possible crimes 

being committed by employees of Southlake’s police department. For example, 

appellant heard that a sergeant had forced a detective to change information in 

an offense report, and appellant believed that this act comprised official 

oppression or tampering with a governmental record.1 Appellant also believed 

that the department had set up an improper system of evaluating officers by the 

number of citations that they had issued.2 Based on instances occurring in 2006 

and 2007, which appellant described in an affidavit, he further believed that a 

pattern was developing of supervisors improperly interfering with cases, recalling 

cases that had already been submitted to the Tarrant County District Attorney, 

suggesting “in-house probation” for offenders, and “selectively enforcing the law” 

when the suspects were prominent members of the community or students of 

Southlake Carroll High School. Appellant says that through an anonymous 

survey, he reported some of his complaints about these actions to City Manager 

 

1See Tex. Penal Code Ann. §§ 37.10(a), 39.03(a) (West 2011).

2See Tex. Transp. Code Ann. § 720.002(a) (West 2011) (prohibiting traffic 

offense quotas).
3

Shana Yelverton. Appellant also discussed the alleged improprieties with 

Lieutenant Michael Kenny.

In the summer of 2007, a group of Southlake’s police officers, including 

appellant, approached the Tarrant County District Attorney’s Office with concerns 

about Chief Goolsby’s handling of police incidents and investigations. Appellant 

asserts that he made good faith reports of misconduct to an investigator with the 

district attorney’s office and two Texas Rangers’ sergeants. In addition to some 

of the facts discussed above, appellant told the investigator about how Chief 

Goolsby allegedly told officers to falsify workers’ compensation claims when they 

were injured in off-duty jobs. The district attorney’s office investigated the 

concerns.

3

 A grand jury listened to witnesses speak about the department’s 

alleged improprieties, but the grand jury did not issue criminal charges.

 

3

Following its investigation, in February 2008, the district attorney’s office

issued a report noting that a “sizeable faction” of Southlake’s police officers had 

serious concerns about Chief Goolsby’s leadership. The district attorney 

concluded that the allegations had not established criminal events, but the report 

stated, “[T]he conclusion of the investigation should not be taken as weight for 

one side or the other in the ongoing debate of police practices in the City.” The 

report also stated that although the district attorney had forwarded some 

concerns about the police department’s practices to Southlake’s management, 

the district attorney did not have the “authority, the time, or the resources . . . to 

investigate every one of the 56 officers in the department with regard to vague 

rumors against them.”
4

In October 2007, appellant and Southlake’s Director of Public Safety Jim 

Blagg4exchanged e-mails about appellant’s concern that Chief Goolsby

endorsed “unethical” behavior. Blagg wrote to appellant that appellant’s 

“snipping and knit-picking every word that anyone in a Supervisory role in [S]DPS 

sa[id] or [wrote was] causing continuous strife that [was] unnecessary.” 

Appellant says that after his exchange with Blagg, Chief Goolsby changed 

appellant’s work status to a “less desirable position.”

On January 9, 2008, Southlake’s mayor, Andy Wambsganss, along with 

one of Southlake’s city council members, Laura Hill, received an e-mail from 

someone who identified himself only as “SDPS Officer.” The e-mail, which was 

sent from southlakeneedshelp@live.com, contained information on SDPS 

personnel that Councilmember Hill believed was confidential and should not have 

been disclosed.

5 Specifically, the e-mail stated in part,

 

4As the director of public safety, Blagg oversaw the city’s police and fire 

divisions, which comprise the SDPS. Thus, Chief Goolsby was subordinate to 

Blagg. Blagg was also the city’s deputy city manager.

5Mayor Wambsganss and Councilmember Hill stated that when they 

received the e-mail, they were aware that the district attorney’s office was 

investigating activities in the police department but were not aware of the specific 

subjects of the investigation or the identity of the people who had complained to 

the district attorney. Yelverton stated that she was also aware of the district 

attorney’s investigation and that appellant had been involved in the investigation. 

Yelverton explained that she “fully and completely cooperated with” the district 

attorney’s office during the investigation.
5

As you may or may not know, Lt. Michael Kenny was fired today.

This is a great injustice as he was one of the major forces 

behind exposing the wrong doing being conducted by our police 

administration. Cases have been dropped or lowered without just 

cause. The cases were not mishandled. There were not any 

obstacles to prosecution. They were simply interfered with. The fact 

that the parents of the children involved are high profile certainly 

adds an air of suspicion as to the motives Chief Goolsby has for 

interfering because there are no other reasons. In fact, there [is] a 

series of lies that have been spoken by Chief Goolsby that are being 

investigated by a Tarrant County Grand Jury as to why one of these 

cases was dropped. Lt. Kenny gave Assistant City Manager Blagg 

proof of these lies . . . . Instead of acting on this proof, Blagg has 

buried it and ignored it.

Lt. Kenny gave Blagg written proof that Chief Goolsby used 

city personnel, services, and equipment for personal gain. . . .

Lt. Kenny was on paid administrative leave for over three 

months after he made the claim which was later substantiated by 

Blagg and for which Goolsby received a verbal reprimand. . . . Now 

Goolsby’s $5.00 theft has cost the city tens of thousands to cover 

up. Besides, theft is theft. If your police chief is comfortable stealing 

any amount, you should have a problem with that. All of this was 

done while Lt. Kenny was an active witness of a Grand Jury 

investigation. . . .

City administrators are acting like children hiding their report 

cards from the parents. Only in this case, you are the parents. 

Officers have brought allegations of case fixing, orders to violate the 

civil rights of citizens, ticket quotas, inefficiency, and incompetence 

to Blagg . . . . Nothing was investigated. . . . Blagg does not want to 

know the real problems. Neither does [Yelverton]. They do not want

you to know either. . . .

. . . .

So far in the last couple of years that they have been here, 

Blagg and Goolsby have brought shame and embarrassment to the 

city by the appearance of inappropriate relationships influencing 

hiring, Blagg paying himself to hire himself, a Grand Jury 

investigation, and lies made in print and on television regarding an 

inappropriately dropped case. Chief Goolsby appeared in two 
6

endorsements for Roxanne Taylor Realty in full police uniform, in 

violation of police department and city policy . . . .[

6

] Goolsby tells 

Blagg he didn’t know the commercial was being shot and he just 

walked in on accident . . . .

. . . .

The city advertises I2ACT as [its] slogan for core values to its 

employees. Integrity is the first word in that slogan and it very well 

should be. City administration preaches integrity and yet covers the 

truth when it is brought to their attention. Integrity for all but the 

police chief who should be the most honest and unimpeachable in 

the entire city. . . .

The police department is in poor shape and [is] getting worse. 

Approximately 25% of the police department [is] either retiring or 

looking elsewhere for jobs. That number will grow if indictments are 

not returned by the Grand Jury. Many have lost faith in the city 

altogether after repeated attempts to report their activities have been 

met with indifference and retaliation. Chief Goolsby recently hired a 

police recruit . . . that had been caught smoking marijuana in his car 

while he was employed as a corrections officer . . . . [A sergeant] 

was recently investigated by the DEA for purchasing Human Growth 

Hormone illegally over the internet. He claimed to not know that it 

was illegal to do so and that it was medically necessary for him. . . .

The DEA has turned him as a witness for the prosecution 

against the online pharmacy. However, he was not disciplined by 

Chief Goolsby. Is this the message that Southlake wants to send to

[its] youth? . . .

I don’t know what relationships the city administrators have 

that have caused them to circle the wagons so fiercely and protect 

the criminal activities that have occurred but, regardless if 

indictments are returned, the Grand Jury investigation will be public 

record and the testimony of your officers will shock you and your 

constituents.

 

6An SDPS general order prohibits employees from recommending the 

“procurement of a particular product, professional service, or commercial 

service.”
7

Councilmember Hill provided a copy of the e-mail to SDPS so that it could 

look into the e-mail’s allegations and determine whether someone had improperly 

accessed confidential information.7 Chief Goolsby received the e-mail. He

believed that the e-mail disclosed confidential information and that the 

department needed to learn who sent it to discern whether a security breach had 

occurred. He also believed that the facts recited in the e-mail were incomplete 

and misleading.

Captain Rusty Daniels led an investigation into the source of the e-mail

and into how that source had learned about the issues addressed in the e-mail.

8

 

He interviewed several of the police department’s employees, who all denied 

having any knowledge about who sent the e-mail, and he required many

employees to answer written questions about the sending and content of the email. According to Captain Daniels, the investigation into the anonymous e-mail 

required a “very substantial expenditure” of his time.

 

7Councilmember Hill swore in an affidavit that her decision to turn over the 

January 9, 2008 e-mail to SDPS was not retaliatory but was borne out of a 

concern that SDPS needed to be aware of the e-mail’s allegations. She and 

Mayor Wambsganss stated that they did not interpret the January 9 e-mail as 

making a complaint under the city’s ethics code because there was no reference 

to a particular provision of the code and there was no request for the city council 

to take any particular action.

8Chief Gooslby says that he directed Captain Daniels to investigate the 

source of the e-mail but did not participate in Captain Daniels’s investigation.
8

On January 23, Mayor Wambsganss and Councilmember Hill received 

another email from southlakeneedshelp@live.com. That e-mail, which purported 

to be sent by retired police officer Quentin Watkins, stated,

I sent my letter to you so that you would see the truth. 

My feelings about you were apparently wrong. I left the department 

last year. I left because of the reasons I wrote about and others.

I figured if I told you that you would see me as an ex-employee with 

a grudge. I hear that you just turned this information over to city 

management who . . . started a witch hunt in the police department. 

What you are allowing to happen to [Lt. Kenny] is wrong but I guess 

you will figure that out when it goes to court.

Captain Daniels spoke to Watkins, and Watkins said that he had not sent the emails. Watkins said that appellant had asked permission to use Watkins’s name 

to send the second e-mail but that he had not given appellant permission. On 

January 25, Watkins sent a notarized memo to Captain Daniels that stated in 

part,

I have no idea what was said in either email because I did not write 

them. I told Capt. Daniels that I had been contacted by [appellant] 

by phone earlier in the week at which time [appellant] told me that an 

email had been sent to a City [councilmember] and now [SDPS] 

management was coming down hard on . . . personnel attempting to 

find out who wrote the email. [Appellant] said that there was an 

internal affairs investigation being conducted and that those involved 

in the email . . . could be in a lot of trouble. [Appellant] went on to 

ask if he could write an email using my name . . . .

. . . .

I did not give anyone permission to use my name in any email 

sent to the City of Southlake or to a City [councilmember].

Captain Daniels asked appellant to answer several questions about the emails in writing, and appellant did so on January 29. He admitted to sending the 
9

e-mails and stated that he had received permission to use Watkins’s name.9 

Also on January 29, an attorney wrote a letter to Chief Goolsby to state that he 

had been retained by appellant and to express his belief that appellant was 

protected by the Whistleblower Act.10 Part of the letter stated, “I certainly hope 

that the City and/or the Department and yourself will not retaliate against Sgt. 

Steele for the information he has provided to the Tarrant County District 

Attorney’s Office.” Captain Daniels also interviewed appellant more than once. 

Appellant said that he had used Watkins’s name for “self preservation” because 

he knew that the investigation was “closing in on him.” He expressed his belief 

that Watkins had denied granting appellant permission to use Watkins’s name 

because Watkins was running for a political office.

SDPS placed appellant on administrative leave with pay and benefits and 

precluded him from performing any police work. On February 5, Captain Daniels

formally asserted fifteen potential grounds for misconduct against appellant

associated with appellant’s sending of the e-mails. Captain Daniels classified the 

 

9

In his affidavit, appellant says that he sent the January 9 e-mail because 

he was required to report unethical conduct to the city council; he claims that he 

sent the e-mail anonymously for fear of retaliation.

10See Tex. Gov’t Code Ann. §§ 554.001–.010 (West 2004); Tarrant Cnty.

v. McQuary, 310 S.W.3d 170, 173 (Tex. App.—Fort Worth 2010, pet. denied) 

(“The Whistleblower Act has a twofold purpose: (1) protecting a public employee 

from retaliation by her employer when, in good faith, the employee reports a 

violation of law, and (2) securing lawful conduct on the part of those who direct 

and conduct the affairs of public bodies.”).
10

fifteen grounds into appellant’s alleged violations of four of SDPS’s written 

policies that

prohibited unbecoming conduct, including “discourtesy or conduct which 

[brought] the department into disrepute or reflect[ed] discredit upon the 

individual as an employee of [SDPS], or that which impair[ed] the operation 

or efficiency of the Department or individual”;11

required SDPS employees to be truthful in all verbal statements and 

written documentation because truthfulness was “essential and expected 

when dealing with a single employee or the public”;12

required SDPS employees to follow federal, state, and local laws;13 and

mandated that employees could not disseminate confidential information to 

unauthorized people for any purpose.14

Appellant responded in writing to Captain Daniels’s fifteen allegations of 

misconduct on February 7. Among other parts of his response, appellant 

expressed his beliefs that information he had included in the January 9 e-mail 

was public information under chapter 552 of the government code, that he was 

authorized to disclose the information to city officials under Southlake’s employee 

 

11Captain Daniels alleged that appellant had made disparaging remarks 

about Blagg’s, Chief Goolsby’s, and Yelverton’s integrity in the January 9 e-mail.

12Captain Daniels alleged that appellant had been untruthful, in part, by 

sending the January 23 e-mail while claiming that Watkins had sent it along with 

January 9 e-mail.

13For example, Captain Daniels asserted that appellant had committed 

forgery under the penal code by using Watkins’s name on the January 23 e-mail.

14Captain Daniels alleged that appellant had divulged confidential 

information about an employment background investigation, the firing of 

Lieutenant Kenny, an internal affairs investigation, a grand jury investigation, and 

an ongoing criminal investigation.
11

handbook because the information concerned illegal or unethical conduct and 

violations of Southlake’s policies, that he had not been told by anyone to not 

release the information, that he had not “released” confidential information at all 

because he did not send the e-mails to anyone outside of Southlake’s 

government, and that Watkins had allowed him to use Watkins’s name to send 

the second e-mail. One of Captain Daniels’s fifteen allegations stated, “On 

January 23, 2008[,] you were untruthful when you sent a second email to the City 

of Southlake Mayor and Councilmember Laura Hill taking responsibility for 

sending the first email, however claiming to be retired Southlake Officer Quentin 

Watkins.” Appellant responded to this allegation by stating, “Given the lengths to 

find me, I think my response was justified.” The last paragraph of appellant’s 

response stated,

I find it interesting that I am being charged with 15 separate counts 

of policy violations and yet most of the issues I brought forth in my 

email have been completely ignored. I have report[ed] policy 

violations, ethics code violations, and violations against the laws of 

the State of Texas, all in good faith, and yet I am the one being 

investigated.

Captain Daniels eventually recommended that thirteen of the fifteen grounds be 

sustained.

The “Complaint Summary” portion of Captain Daniels’s written 

investigation report stated,

On January 9, 2008[,] an email was received by a member of 

the Southlake City Council which contained confidential information 

concerning the background of SDPS Police Services personnel, 

internal affairs investigations, disciplinary actions taken, the identity 
12

of witnesses involved in [ongoing] criminal cases, and information 

concerning a Tarrant County Grand Jury investigation. It also 

contained information purported to be fact that actually was false or 

misleading. In addition to the information released, there were 

numerous derogatory comments concerning the integrity of the City 

Manager, Director of Public Safety, and the Chief of Police.

Due to the nature of the confidential information released, an 

administrative review was initiated. The scope of the review was to 

determine the identity of the person responsible for composing and 

sending the email. On January 18, 2008[,] interviews with SDPS 

personnel began. On January 23, 2008[,] a second email was 

received. In this email, the composer identified [himself] as retired 

Southlake Police Officer Quentin Watkins.

As a result of this investigation, the composer of both emails 

was identified as [appellant]. As a result of [appellant’s] actions, it 

was alleged he violated SDPS policy, thus the ongoing 

administrative review was changed to an internal affairs 

investigation.

Captain Daniels’s report then detailed the contents of various statements that he 

had received from witnesses who he had talked to in the investigation, including

appellant, Watkins, Councilmember Hill, and Blagg.

Chief Goolsby asked Lieutenant Ashleigh Douglas, appellant’s supervisor, 

to review Captain Daniels’s investigation report and provide her opinions on the 

allegations it contained. On March 3, 2008, Lieutenant Douglas issued a memo 

stating that she had reviewed Captain Daniels’s report. Lieutenant Douglas 

opined that eight of Captain Daniels’s alleged grounds of appellant’s misconduct 

be sustained, including two of the grounds relating to appellant’s untruthfulness, 

but she recommended demotion, rather than termination, as appellant’s 

discipline. Lieutenant Douglas recognized that the “operation and efficiency of 
13

the Department was temporarily impaired when several supervisory members of 

the department were diverted from their normal duties to conduct the 

investigation and subsequent reviews of the investigation.” Appellant says that 

Lieutenant Douglas told him that Chief Goolsby tried to get her to alter her 

recommendation of demotion.

On March 4, 2008, appellant submitted a hostile work environment 

complaint to Yelverton. The complaint alleged several incidents of misconduct 

by SDPS, some of which appellant stated that he had already reported to the 

district attorney’s office, including that

in December 2006, a sergeant made a detective change parts of a report 

to reflect a lower charge for a robbery at a Wendy’s restaurant, which 

appellant believed could qualify as official oppression under the penal 

code;

in May 2007, a sergeant repressed the investigation of a drug case 

although the evidence supported a charge;

in May 2007, a sergeant improperly influenced the lowering of a charge 

after a detective had already filed a case with the district attorney’s office;

Chief Goolsby provided false excuses to officers about why the Tarrant 

County District Attorney’s office had not prosecuted cases;

Chief Goolsby and Captain Daniels ordered supervisors to evaluate 

officers based on the number of citations that they issued each month;

Chief Goolsby tampered with a governmental record in connection with 

appellant’s 2005 performance appraisal;

during an August 2007 meeting, Chief Goolsby implied that officers should 

conceal their off-duty status if they got injured while working off duty so 

that they could collect workers’ compensation benefits;
14

Chief Goolsby suppressed an investigation into the circumstances of 

someone’s death when detectives believed that the death was suspicious;

and

appellant disclosed allegations about Chief Goolsby’s misconduct to Blagg, 

but Blagg “never sought trained criminal investigators to look into these 

allegations.”

In the complaint, appellant also expressed his opinions that in several 

circumstances, he was treated unfavorably for reporting these allegedly unethical 

behaviors by officers in the department and that the allegations of misconduct 

that had been made against him were retaliation for the allegations that he had 

made against the police administration. Yelverton had received the district 

attorney’s report by the time appellant presented his hostile work environment 

complaint.

Yelverton appointed Marigny Lanier, an attorney, to investigate the hostile 

work environment complaint.

15

 On March 16, 2008, appellant sent a memo to 

Yelverton titled, “Hostile Work/Harassing Environment Complaint Amendment.” 

In the memo, appellant alleged that Chief Goolsby had discussed details of the 

internal affairs investigation concerning appellant with other officers. Appellant 

stated that “[i]nternal affairs investigations . . . are protected against the 

information being distributed to preserve the integrity of the investigation.” 

Between March 24 and April 17, Lanier interviewed appellant, Blagg, Captain 

 

15In her affidavit, Yelverton stated that she considered the hostile work 

environment complaint “very seriously,” that she directed Lanier to not dismiss 

the complaint on a technicality, and that the City paid thousands of dollars for 

Lanier’s investigation.
15

Daniels, Chief Goolsby, Lieutenant Kenny, Yelverton, and others. Appellant

claims that Lanier did not adequately investigate his complaint.

Chief Goolsby reviewed Captain Daniels’s report and Lieutenant Douglas’s 

review of the report. Chief Goolsby issued a memo that sustained six of the 

fifteen allegations of misconduct, including allegation number ten, concerning 

“Truthfulness,” because Chief Goolsby found that appellant had “intentionally 

used another person’s name as the author of an e-mail in order to avoid 

detection and divert attention.” Chief Goolsby also sustained all four of the 

“Unbecoming Conduct” allegations, stating that appellant’s “statements of ‘fact’ 

were based on rumors, opinions, and third-party information” and that the method 

appellant used to express his concerns was “unprofessional and inexcusable.” 

Chief Goolsby fired appellant in May 2008.

On May 8, 2008, Yelverton informed appellant by a letter that Lanier had 

completed her investigation and that based on Lanier’s written report, Yelverton 

had found that appellant had not been subjected to a hostile work environment in 

retaliation for reporting his concerns about Chief Goolsby. In the report, Lanier

concluded that appellant had not made good faith reports of violations of law, 

although Lanier said, with respect to appellant’s claim that Chief Goolsby had 

imposed a ticket quota, that the good faith issue was a “close question.” Lanier 

also determined that appellant had not suffered discriminatory and adverse 

personnel actions or harassment because of the reports he had made; she found 

appellant’s arguments in that regard to be speculative.
16

Through Southlake’s grievance policy, on May 15, appellant appealed 

Chief Goolsby’s termination decision to Blagg, although appellant objected to 

Blagg deciding the appeal because Blagg had been named in appellant’s hostile 

work environment claim. Blagg declined to recuse himself because he believed 

he could act fairly toward appellant. As part of the appeal, appellant criticized 

much of Captain Daniels’s report and alleged that Watkins had allowed him “to 

use [Watkins’s] name regardless of what pressure from the department made 

him recant.”16 On June 10, Blagg met with appellant, appellant’s attorney, 

Southlake’s attorney, and a human resources analyst. Blagg also considered 

Daniels’s report and Douglas’s review of Daniels’s report. On June 13, Blagg 

sustained appellant’s termination on the bases that (1) appellant had intended to 

deceive the department with his e-mails and to “interfere with or prevent the 

department from ascertaining the identity of the author of the [January 9] email”; 

and (2) in the January 9 e-mail, appellant had made “purportedly factual 

statements based on rumor and hearsay, something a reasonable officer should 

know to avoid.” Blagg sustained six of the fifteen grounds for misconduct that

Captain Daniels had asserted.

 

16Appellant voluntarily took a polygraph examination on June 4, 2008, and 

the examiner determined that appellant was not being deceptive when he stated 

that Watkins had told him that he could use Watkins’s name to send the January 

23 e-mail. SDPS could have required appellant to take a polygraph examination 

during the internal affairs investigation.
17

Appellant appealed Blagg’s decision to Yelverton. On June 20, appellant 

sent a memo to Yelverton to argue for his reinstatement. The memo included 

appellant’s assertions that Lanier’s investigation had been “wrought with errors.” 

In the memo, appellant also said, “I know that I have made mistakes in this 

situation[,] but there is not a single person involved in this series of incidents that 

can claim innocence of all fault.” Appellant met with Yelverton on July 22, and 

several days later, after Yelverton had interviewed Watkins and had considered

Captain Daniels’s report, Lieutenant Douglas’s review, and the termination 

findings of Chief Goolsby and Blagg, Yelverton upheld the termination. 

According to her affidavit, her decision was based on the tenth and eleventh 

allegations of misconduct that Captain Daniels had generated, which both 

concerned untruthfulness. In the affidavit, Yelverton said that the investigation 

into the source of the e-mails was required to determine whether there had been 

a breach of security. She also noted that appellant’s actions in sending the emails were “deceptive whether or not he had [Watkins’s] permission.”

In August 2008, appellant sued Southlake “for retaliating against him” in 

violation of the Whistleblower Act. Appellant asserted that his reports about 

SDPS’s alleged misconduct caused his termination, and he sought 

compensatory damages, reinstatement as a sergeant, and attorney’s fees. 

Appellant later amended his petition several times; among other effects, the 

amendments added Chief Goolsby as a defendant.
18

In December 2010, in one document, appellees filed a motion for summary 

judgment and a plea to the jurisdiction. In their motion, appellees contended in 

part that appellant had been fired because he was untruthful when sending the 

January 2008 e-mails rather than because of the substance of his reports about 

SDPS’s alleged wrongdoing. Appellees also asserted that appellant had no 

evidence to support his claims. Appellant responded to appellees’ motion and 

plea, contending that he was “ultimately terminated for making the report of 

criminal violations against [Chief Goolsby] and other employees to the Tarrant 

County District Attorney.”

Appellees objected to much of appellant’s summary judgment evidence, 

including almost all of appellant’s affidavit, and appellees noted that appellant 

had not contested that his termination would have occurred regardless of his 

status as a whistleblower. The trial court sustained several of the objections, 

granted appellees’ motion for summary judgment and plea to the jurisdiction 

without specifying a reason for doing so, and dismissed all of appellant’s claims 

with prejudice. Appellant brought this appeal.17

 

17Appellant does not challenge the trial court’s decision to grant summary 

judgment against his claim under chapter 614 of the government code, and we 

therefore affirm the summary judgment as to that claim. See Torres v. Johnson, 

91 S.W.3d 905, 908 n.3 (Tex. App.—Fort Worth 2002, no pet.) (explaining that 

we must affirm summary judgments on unchallenged grounds).
19

Appellant’s Whistleblower Act Claim

In his second issue, appellant argues that appellees did not conclusively 

establish their affirmative defense and that the trial court therefore erred by 

granting their motion for summary judgment. We review a summary judgment de 

novo. Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 862 (Tex. 2010). We 

consider the evidence presented in the light most favorable to the nonmovant, 

crediting evidence favorable to the nonmovant if reasonable jurors could, and 

disregarding evidence contrary to the nonmovant unless reasonable jurors could 

not. Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 

(Tex. 2009). We indulge every reasonable inference and resolve any doubts in 

the nonmovant’s favor. 20801, Inc. v. Parker, 249 S.W.3d 392, 399 (Tex. 2008). 

A defendant is entitled to summary judgment on an affirmative defense if the 

defendant conclusively proves all the elements of the affirmative defense. Frost 

Nat’l Bank v. Fernandez, 315 S.W.3d 494, 508–09 (Tex. 2010); see Tex. R. Civ. 

P. 166a(b), (c). To accomplish this, the defendant-movant must present 

summary judgment evidence that conclusively establishes each element of the 

affirmative defense. See Chau v. Riddle, 254 S.W.3d 453, 455 (Tex. 2008).

Once the defendant produces sufficient evidence to establish the right to 

summary judgment, the burden shifts to the plaintiff to come forward with 

competent controverting evidence that raises a fact issue. Van v. Pena, 990 

S.W.2d 751, 753 (Tex. 1999); Rice v. Metro. Life Ins. Co., 324 S.W.3d 660, 665 

(Tex. App.—Fort Worth 2010, no pet.). When a trial court does not specify the 
20

ground relied on for granting summary judgment, the summary judgment will be 

affirmed on appeal if any of the theories presented to the trial court and 

preserved for appellate review are meritorious. Hanson v. Greystar Dev. & 

Constr., LP, 317 S.W.3d 850, 852 (Tex. App.—Fort Worth 2010, pet. denied).

“A state or local governmental entity may not suspend or terminate the 

employment of, or take other adverse personnel action against, a public 

employee who in good faith reports a violation of law[

18] by the employing 

governmental entity or another public employee to an appropriate law 

enforcement authority.” Tex. Gov’t Code Ann. § 554.002(a); see City of El Paso 

v. Parsons, 353 S.W.3d 215, 225 (Tex. App.—El Paso 2011, no pet.). A violation 

of section 554.002 waives governmental immunity. State v. Lueck, 290 S.W.3d 

876, 878 (Tex. 2009); see Tex. Gov’t Code Ann. § 554.0035; Tex. Dep’t of 

Assistive & Rehabilitative Servs. v. Howard, 182 S.W.3d 393, 396 (Tex. App.—

Austin 2005, pet. denied). A person whose employment is terminated in violation 

of section 554.002 may sue for injunctive relief, reinstatement, damages, and 

reasonable attorney’s fees. Tex. Gov’t Code Ann. § 554.003. The person must 

generally sue within ninety days of the improper employment action. Id. § 

554.005.

 

18Under chapter 554, the “law” includes state and federal statutes, local 

ordinances, and rules adopted under statutes or ordinances. Tex. Gov’t Code 

Ann. § 554.001(1). Because we hold below that appellees were entitled to 

summary judgment on an affirmative defense that is unrelated to whether 

appellant’s reports were made in good faith, we will not address the issue of 

good faith. See Tex. R. App. P. 47.1.
21

Among other grounds, appellees sought summary judgment on the 

affirmative defense described by section 554.004(b) of the government code, 

which states,

It is an affirmative defense to a suit under this chapter that the 

employing state or local governmental entity would have taken the 

action against the employee that forms the basis of the suit based 

solely on information, observation, or evidence that is not related to 

the fact that the employee made a report protected under this 

chapter of a violation of law.

Id. § 554.004(b) (emphasis added). Appellees argued in the trial court that 

appellant’s “deceptive actions in the face of an official investigation would have 

inevitably caused a termination of his employment.” In appellant’s response to 

appellees’ motion, he generally asserted that he could produce evidence of his 

claims and stated that he was “ultimately terminated for making the report of 

criminal violations against the Chief and other employees to the Tarrant County 

District Attorney,” but he did not specifically respond to appellees’ ground for 

summary judgment under section 554.004(b)’s affirmative defense.19

The affirmative defense in section 554.004(b), if proven, tends to negate

the causation element of a plaintiff’s claim because to show causation in a 

Whistleblower Act case, “a public employee must demonstrate that after he 

reported a violation of the law in good faith to an appropriate law enforcement 

authority, the employee suffered discriminatory conduct by his employer that 

 

19Appellant also objected to much of appellees’ summary judgment 

evidence, but appellant’s issues on appeal do not attack the admissibility of 

appellees’ evidence.
22

would not have occurred when it did if the employee had not reported the illegal 

conduct.” Hurley v. Tarrant Cnty., 232 S.W.3d 781, 786 (Tex. App.—Fort Worth 

2007, no pet.) (emphasis added); see City of Fort Worth v. Zimlich, 29 S.W.3d 

62, 68 (Tex. 2000); Tex. Dep’t of Human Servs. v. Hinds, 904 S.W.2d 629, 636 

(Tex. 1995) (“[T]he standard of causation in whistleblower and similar cases 

should be that the employee’s protected conduct must be such that, without it, 

the employer’s prohibited conduct would not have occurred when it did.”).20 This 

causation standard has been described as a “but for” causal nexus requirement. 

Hurley, 232 S.W.3d at 786 (citing Rogers v. City of Fort Worth, 89 S.W.3d 265, 

280 (Tex. App.—Fort Worth 2002, no pet.)).

Typically, a causal link between the employee’s report of illegal conduct

and the adverse employment action may be established by circumstantial 

evidence, including knowledge of the report of illegal conduct, expression of a 

negative attitude toward the employee’s report of the conduct, failure to adhere to 

established policies regarding employment decisions, discriminatory treatment of 

the reporting employee in comparison to similarly-situated employees, and 

evidence that the stated reason for the adverse employment action was false. 

Parsons, 353 S.W.3d at 226 (citing Zimlich, 29 S.W.3d at 69); Hurley, 232 

 

20Although the supreme court discussed the issue of causation in 

Whistleblower Act cases in Zimlich and in Hinds, the court did not discuss the 

effect of section 554.004(b)’s affirmative defense upon causation in either case 

because in both cases, the allegedly retaliatory employment action occurred 

before the effective date of section 554.004(b). See Zimlich, 29 S.W.3d at 66–

67; Hinds, 904 S.W.2d at 637.
23

S.W.3d at 786. On appeal, appellant relies on such evidence; he asserts, among 

other facts, that

during his investigation, Captain Daniels knew of appellant’s reports of 

allegedly illegal conduct by SDPS employees to the district attorney; at the 

time of their successive termination decisions, Chief Goolsby, Blagg, and 

Yelverton also knew of appellant’s involvement in making the reports; and 

Chief Goolsby, Blagg, and Yelverton were aware of the January 9 e-mail 

that appellant sent, which contained complaints against each of them;

in their summary judgment affidavits, Yelverton, Blagg, Chief Goolsby, and 

Captain Daniels described appellant’s anonymous January 9, 2008 emailed whistleblower report as a deceptive act, which implies that they 

viewed the report negatively; and Blagg’s October 2007 e-mail exchange 

with appellant, in which Blagg said that appellant was “knit-picking,” also 

shows that Blagg viewed whistleblower reports negatively;

although Chief Goolsby usually did not discuss internal affairs 

investigations, he discussed appellant’s investigation with other SDPS 

employees; and during Captain Daniels’s investigation, Captain Daniels

did not provide appellant with an opportunity to take a polygraph test 

concerning whether Watkins gave consent to use his name in the January 

23, 2008 e-mail even though under a general order, Captain Daniels had 

the authority to do so; and

by describing the January 9 e-mail as deceptive, Yelverton conceded that 

the anonymous whistleblower report itself was a cause of the termination 

decision; and although Captain Daniels, Chief Goolsby, and Blagg claim to 

have not known about appellant’s report of misconduct to the district 

attorney, other facts show that they knew of the report, and their 

“conscious attempt to hide their knowledge . . . shows that the 

whistleblower report was a factor in their investigation and decision to 

terminate” appellant.

21

 

21In the argument portion of appellant’s summary judgment response in the 

trial court, he did not specify the facts that he now relies upon on appeal to defeat 

appellees’ affirmative defense. “Generally, the nonmovant must expressly 

present to the trial court any reasons for avoiding the movant’s right to summary 

judgment.” Bassett v. Am. Nat’l Bank, 145 S.W.3d 692, 696 (Tex. App.—Fort 

Worth 2004, no pet.); see also Tex. R. Civ. P. 166a(c) (explaining that issues “not 
24

It is possible that these facts amount to circumstantial evidence showing 

that appellant’s reports of misconduct provided one basis for appellees’ decision 

to fire appellant. Under the plain language of section 554.004(b),22 however, 

appellees are nonetheless entitled to their affirmative defense if the decision to 

fire appellant would have been made solely on a basis that is independent of the 

fact of the reports. Tex. Gov’t Code Ann. § 554.004(b). Appellant correctly notes

that the Whistleblower Act does not require an employee to prove that the 

reporting of illegal conduct was the sole reason for the complained-of adverse 

employment action. Hurley, 232 S.W.3d at 786. Thus, if the employee’s report 

would not have been enough by itself to cause the employer’s adverse 

employment action but was an indispensible component, in combination with 

other facts, of the action, then the report caused the action under the 

Whistleblower Act. See id. If, however, the evidence conclusively establishes 

that any possible consideration by the employer of the fact that the employee

made a report was only superfluous to the adverse employment action and that 

the action would have occurred regardless of the fact of the report, then section 

 

expressly presented to the trial court by written motion, answer or other response 

shall not be considered on appeal as grounds for reversal”).

22See Gray v. Nash, 259 S.W.3d 286, 291 (Tex. App.—Fort Worth 2008, 

pet. denied) (“When construing a statute, our goal is to ascertain and give effect 

to the legislature’s intent as expressed by the plain and common meaning of the 

statute’s words.”).
25

554.004(b)’s affirmative defense precludes liability. See Tex. Gov’t Code Ann. § 

554.004(b).

The supreme court demonstrated this principle in Haggar Clothing Co. v. 

Hernandez, in which the court examined causation under a statute that precludes 

retaliatory discharges and is therefore similar to the Whistleblower Act. 164 

S.W.3d 386, 388 (Tex. 2005).

23

 Hernandez was injured while working for Haggar 

as a seamstress. Id. at 387. After Hernandez did not return to work for more 

than a year following her injury, Haggar fired her under a leave-of-absence policy 

that provided that the “maximum amount of time an employee could remain on 

leave, regardless of the reason, was one year.” Id. Hernandez sued Haggar, 

alleging that she had been fired for filing a workers’ compensation claim after she 

had been injured, and although a jury rendered a verdict in her favor and a court 

of appeals affirmed the trial court’s judgment on the verdict, the supreme court 

reversed on the ground of legal insufficiency. Id. That court explained,

In affirming the trial court’s judgment, the court of appeals 

focused heavily on evidence Hernandez presented that Haggar’s 

safety-incentive policies, which included bonus opportunities for 

 

23Hernandez concerned a claim under section 451.001 of the labor code, 

which states, in part, that a person may not discharge or discriminate against an 

employee because the employee has filed a workers’ compensation claim in 

good faith. Id.; see Tex. Labor Code Ann. § 451.001(1) (West 2006). Plaintiffs in 

retaliatory discharge claims under section 451.001 may rely on the same types of 

circumstantial evidence of causation as plaintiffs in Whistleblower Act claims. 

See Louis v. Mobil Chem. Co., 254 S.W.3d 602, 611 (Tex. App.—Beaumont 

2008, pet. denied); see also Cont’l Coffee Products Co. v. Cazarez, 937 S.W.2d 

444, 450 (Tex. 1996) (comparing the Whistleblower Act to section 451.001 and 

stating that the same principles of causation should apply to both statutes).
26

units that had accumulated a certain number of hours without a “losttime accident” that required an employee to miss work, pressured 

employees not to report workplace injuries for fear of upsetting coworkers. Hernandez also presented evidence that plant managers 

were under economic pressure to minimize workers’ compensation 

claims, that she had felt pressured to remain at work the day of her 

accident, and that [Haggar’s plant manager] had threatened not to 

pay for her treatment by a chiropractor the day after the accident. 

This may constitute circumstantial evidence supporting a causal link 

between Hernandez's termination and her filing a workers' 

compensation claim. We held in Cazarez, however, that an 

employer who terminates an employee pursuant to the uniform 

enforcement of a reasonable absence-control provision will not be 

liable for retaliatory discharge. The above evidence is thus 

immaterial if Hernandez’s termination was required by the uniform 

enforcement of Haggar’s one-year leave-of-absence policy.

Id. at 388 (emphasis added) (citations omitted). Following Hernandez, courts of 

appeals, including our own court, have held that circumstantial evidence of 

retaliation is immaterial when an employer proves an independent basis for an 

adverse employment action. See Parker v. Valerus Compression Servs., LP, No. 

01-10-00916-CV, 2011 WL 3918159, at *5–6 (Tex. App.—Houston [1st Dist.] 

Aug. 25, 2011, pet. denied) (stating that when an employer proves a uniform, 

independent basis for termination, the terminated employee “must provide 

competent evidence that the employer treated him differently from similarly 

situated employees in order to survive a summary judgment motion”); Alonso v. 

Stanley Works, Inc., 111 S.W.3d 850, 851–52 (Tex. App.—Dallas 2003, no pet.); 

see also Jackson v. FedEx Ground Package Sys., Inc., No. 02-07-00246-CV, 

2008 WL 1867931, at *4–6 (Tex. App.—Fort Worth Apr. 24, 2008, no pet.) (mem. 

op.) (affirming a summary judgment in favor of an employer because the
27

employer’s post-injury drug screening policy, which the employee did not comply 

with, comprised an independent ground for termination).

In his brief, appellant states that his termination was “centered on his 

sending of the January 23, 2008” e-mail, which he says was an attempt to 

preserve his anonymity. He concedes that the January 23 e-mail implied that 

Watkins wrote the January 9 e-mail. Regardless of whether Watkins gave 

appellant permission to associate Watkins’s name with the January 23 e-mail

(which is a disputed fact), appellant’s statement in the January 23 e-mail that 

Watkins had written the January 9 e-mail was intentionally false; it was, as 

appellant admitted, an attempt to divert Captain Daniels’s investigation.

An SDPS employee’s violation of a general order may result in 

“counseling, reprimand, suspension, and/or dismissal.” One general order states 

that a Southlake police officer should be “[h]onest in thought and deed in [the 

officer’s] personal and official life.” Another order states, “One of the standards 

of ethical conduct is truthfulness. Truthfulness is essential and expected when 

dealing with a single employee or the public.” Yet another general order 

classifies untruthfulness as a “Class One Complaint” that must be investigated 

according to internal affairs procedures. Although SDPS’s policy provides for 

differing levels of discipline, a general order states, “It is recognized that it may 

occasionally be necessary to dismiss an employee without progressing through 

any earlier disciplinary measures.”
28

General Order 621.03 provides a “Discipline Decision Matrix” that lists ten

possible infractions and the recommended discipline upon the first, second, and 

third occurrences of those infractions within a twelve-month period. For example, 

for a critical performance deficiency, the matrix recommends retraining, 

probation, or a reprimand for the first occurrence; probation or a suspension for 

the second occurrence; and a three-day suspension or termination for the third 

occurrence. For sexual harassment by inappropriate comments, the matrix 

recommends discipline ranging from verbal counseling to a three-day suspension 

for the first occurrence, a written reprimand to a three-day suspension for the 

second occurrence, and a three-day suspension to demotion or termination for 

the third occurrence. For untruthfulness, the matrix simply recommends 

termination for the first occurrence.

Yelverton made the ultimate decision to terminate appellant’s employment

with Southlake. Under authority from Texas courts, we must primarily consider 

the rationale of her decision in determining whether appellees rightfully prevailed 

on their affirmative defense. See Harris Cnty. v. Vernagallo, 181 S.W.3d 17, 26

n.15 (Tex. App.—Houston [14th Dist.] 2005, pet. denied) (declining to adopt the 

“conduit” theory, which permits liability when one supervisor makes a 

recommendation regarding an employee to another innocent supervisor who acts 

on that recommendation without conducting any independent judgment); City of 

Fort Worth v. Johnson, 105 S.W.3d 154, 169 (Tex. App.—Waco 2003, no pet.)

(“The trial court’s finding that Pete Nelson’s negative attitude caused Johnson’s 
29

termination has no bearing on the outcome of this case. Nelson did not have the 

ultimate authority to either terminate or reinstate Johnson.”); see also Costello v. 

Bank of Am., N.A., No. 14-06-00195-CV, 2007 WL 4303499, at *4 (Tex. App.—

Houston [14th Dist.] Dec. 11, 2007, no pet.) (mem. op.) (“Costello contends there 

is overwhelming evidence that Brugger expressed a negative attitude . . . . 

Brugger, however, was not the decision maker in Costello’s termination.”).24

Yelverton stated that she does not become involved in termination 

decisions until they reach her level of the appeal process. She explained, “I 

independently try to determine if the totality of the information supports or does 

not support the matters that are being appealed. . . . I become the final decisionmaker under governing rules. . . .” In Yelverton’s affidavit, she said,

My focus was on Charge Nos. 10 and 11 . . . dealing with the use of 

the name Quentin Watkins by [appellant] in connection with the 

second January 23, 2008 email which also claimed credit for having 

sent the earlier January 9, 2008 email.

. . . .

. . . The key charges against [appellant] which were the basis 

for overruling his appeal were Charge Nos. 10 and 11 . . . . 

[Appellant] certainly knew that by sending an anonymous email . . . 

with a number of complaints and with sensitive and confidential 

 

24Citing a United States Supreme Court case that concerned liability under 

a federal statute, appellant argues that a “review of the animus of all persons 

involved in investigating or terminating [appellant] is necessary to determine 

whether the good faith report was a cause of the retaliatory conduct.” See Staub 

v. Proctor Hosp., 131 S. Ct. 1186, 1192–93 (2011). But even in that case, the 

Court recognized that if the employer’s ultimate action is taken for “reasons 

unrelated to the supervisor’s original biased action . . . then the employer will not 

be liable.” Id. at 1193.
30

information, there would certainly be an investigation conducted to 

determine the identity of the sender. Initially sending such an email 

in an anonymous fashion was deceptive. However, when [appellant] 

sent a second email January 23, 2008 claiming to [be] Quentin 

Watkins, this was yet another untruthful and deceptive act. . . .

. . . While certainly any employee in any business should be 

truthful as they carry out the business of their employer, it is 

particularly important for a Police Officer to be truthful. A Police 

Officer will regularly write reports involving charges or potential 

charges or investigations. . . . A Police Officer will be called upon to 

give testimony in various courts. . . . It is my understanding that 

under appropriate circumstances, in a criminal proceeding, a 

criminal defendant may have a right to be informed that an Officer 

has been found to be untruthful, and such information potentially can 

be used to impeach the Officer’s credibility . . . . I was concerned 

that if [appellant] felt that he could bend the truth or be untruthful for 

purposes of a claim that he thought was righteous, this could carry 

over into his work as a Police Officer and supervisor. . . .

. . . [Southlake’s charter] clearly provides that any employee 

or appointed official is required to be truthful . . . . Southlake 

General Order § 603.04 requires employees to be truthful . . . . The 

City’s applicable disciplinary rules included in the General Orders 

manual indicate that a Police employee will be terminated for a first 

time offense involving untruthfulness . . . .

With that background, Yelverton stated, “A Police Officer who is not truthful and 

credible would be terminated for those reasons . . . regardless of any other 

possible motivating factor.” [Emphasis added.] Yelverton explained that during 

the time that she has worked for Southlake (since 1993) she was not aware of 

any other police employee who was determined to be intentionally untruthful and 

was allowed to continue employment. In explaining the basis of her decision to 

terminate appellant’s employment, Yelverton stated,

When I handled [appellant’s] appeal and acted as the final decisionmaker when I made my ruling . . . , I did not in any way retaliate 
31

against [appellant] for engaging in whistleblowing. There is no doubt 

that [appellant] admitted that he sent an anonymous email and then 

later attempted to cover up his involvement in the anonymous email 

by using the name Quentin Watkins . . . . Based on this deception 

and untruthfulness, I would have taken my actions involving 

[appellant] solely on this information or observation or evidence of 

deception and untruthfulness. [Emphasis added.]

Chief Goolsby, who initiated appellant’s termination, and Blagg, who 

initially upheld it, echoed Yelverton’s sentiments about the determinative effect of 

appellant’s untruthfulness upon his discipline. For example, Chief Goolsby 

stated in his affidavit,

[T]he most significant charges against [appellant] that . . . I thought 

should be sustained were the charges involving his untruthfulness

. . . . I thought those charges were the most important because 

there was no doubt that [appellant] had been untruthful. . . .

. . . Additionally, when the initial administrative investigation 

was ongoing, [appellant] apparently realized he was likely to be 

identified as the anonymous sender. Therefore, instead of stepping 

forward to identify himself as the sender, he continued his untruthful 

deception by . . . pretend[ing] that Quentin Watkins had sent the first 

email and second email. . . .

. . . Even if Watkins did give permission to [appellant], I 

considered [appellant’s] action of covering up the true sender to be 

deceptive and untruthful. . . . 

. . . [A]n Officer’s truthfulness and credibility are essential to 

the Officer’s function as a Police Officer.

. . . A Police Officer who is not truthful and credible would be 

terminated for those reasons regardless of any other possible 

motivating factor.

. . . .

. . . In short, regardless of whether or not [appellant] could 

establish that he had whistleblower status, his admitted deception 

and untruthfulness would have resulted in his termination . . . .
32

Like Yelverton, Chief Goolsby stated that during the time he worked for 

Southlake (since 2005), he was not aware of any police employee who was 

charged with intentional untruthfulness, had that charge sustained, and was 

allowed to continue employment.

Blagg said in his affidavit that it

is particularly important for a Police Officer to be truthful. A Police 

Officer will regularly write reports involving charges or potential 

charges or investigations. A Police Officer will, from time to time, 

need to assist in preparing . . . sworn affidavits for purposes of 

obtaining warrants . . . . A Police Officer will be called upon to give 

testimony . . . . If a Police Officer is not truthful, then his coworkers 

and supervisors will question his credibility . . . . Courts and 

prosecutors may question the Officer’s credibility if the Officer has 

been found to be untruthful. . . .

. . . A Police Officer who is not truthful and credible would be 

terminated for those reasons . . . regardless of any other possible 

motivating factor.

. . . .

. . . What was most relevant to my decision was the fact that 

[appellant] intended to deceive the Department and interfere with or 

prevent the Department from finding out the identity of the sender of 

the email.[

25]

 

25Although upon appellees’ objection, the trial court excluded deposition 

excerpts that appellant attached to his summary judgment response, we note 

that even if we were to consider those excerpts, they are consistent with the 

basis of appellees’ affirmative defense. In a deposition taken in connection with 

a lawsuit that Lieutenant Kenny brought against Southlake, Blagg said that 

appellant was fired because he “sent an email to the Mayor and a member of the 

City Council alleging to be another retired police officer.” Captain Daniels 

testified in a similar deposition that the issue that “ultimately got [appellant] 

terminated was a truthfulness issue because he identified himself as . . . being 

somebody else.”
33

Captain Daniels agreed with this sentiment, stating in his affidavit that regardless 

of whether appellant “could establish that he had whistleblower status, his 

admitted deception and untruthfulness should have resulted in his termination.” 

The evidence also demonstrates that people outside of Southlake’s government 

viewed appellant’s untruthfulness with the same seriousness that Yelverton, 

Blagg, Chief Goolsby, and Captain Daniels did; when appellant looked for jobs 

with other police agencies after his firing from Southlake, he was told that he 

would not be hired because he was fired for untruthfulness.

In his brief, appellant appears to concede that Yelverton “terminated [him] 

because he was untruthful when he sent the second email claiming to be retired 

Officer Watkins.” Appellant argues, however, that appellees cannot establish 

their affirmative defense because “(1) the January 23, 2008 email is based on 

information, observation, and evidence related to the fact that [he] made a report; 

[and] (2) [appellees] cannot establish that the January 23, 2008 email is the sole 

reason for [his] termination.” First, we disagree that the inevitable (according to

appellees’ affidavits) termination of appellant’s employment for untruthful 

statements within the January 23 e-mail is related to the “fact that [appellant]

made a report protected [under chapter 554 of the government code] of a 

violation of law.” See Tex. Gov’t Code Ann. § 554.004(b). Appellant’s 

whistleblower report was complete and was effectively protected under chapter 

554 at the time he sent the first, anonymous e-mail to Mayor Wambsganss and 

Councilmember Hill on January 9. From that time through January 23, he could 
34

have done nothing (to therefore remain anonymous until, at some future point, he 

was asked about his role in sending the e-mail),

26 or he could have truthfully 

taken responsibility for the January 9 e-mail; instead, through the January 23 email, he lied (either with or without Watkins’s permission). The lie was not a 

component of appellant’s making a report protected by chapter 554; rather, as 

appellant has conceded, it was a component of diverting the police department’s 

investigation.

Second, we disagree with appellant that to be entitled to their affirmative 

defense, appellees must show that appellant’s January 23 e-mail was the sole 

basis for his termination or that appellant’s whistleblower reports were not a basis 

for the termination. Rather, under the facts of this case, section 554.004(b)

required appellees to prove that disregarding any improper basis that they might 

have had for terminating appellant, they would have terminated him based on the 

proper basis of his untruthfulness. See id.; Vela v. City of Houston, 186 S.W.3d 

49, 54–55 (Tex. App.—Houston [1st Dist.] 2005, no pet.) (concluding that even 

assuming that the plaintiff’s allegations concerning whistleblower retaliation were 

true, the city was entitled to summary judgment because it proved that it would 

have nonetheless disciplined the employee for falsifying records and violating city 

policies); see also Hernandez, 164 S.W.3d at 388–89 (explaining this rationale in 

 

26Thus, we disagree with appellant that the effect of sustaining appellees’ 

affirmative defense is to “subject all anonymous reporters to retaliatory 

treatment.” Appellees’ evidence demonstrates that appellant would have been 

fired apart from his initial anonymity because he lied.
35

the context of a workers’ compensation retaliation claim). For this reason, as 

explained in Hernandez, appellant’s circumstantial evidence of a possible

retaliatory basis for his termination does not defeat appellees’ entitlement to 

summary judgment because it does not cast doubt that Chief Goolsby, Blagg, 

and ultimately, and most importantly, Yelverton, would have fired him for his 

admitted untruthfulness; at most, the evidence shows that there might have been 

more than one ground on which appellees would have fired him.

Referring to Lieutenant Douglas (who did not have authority to decide 

appellant’s discipline), appellant argues that the “only person not implicated by 

[his] reports recommended that he not be terminated.” For two reasons, we 

cannot see the relevance of this fact to appellees’ affirmative defense. First, 

although Lieutenant Douglas did not recommend that appellant be terminated, 

she did recommend that he be disciplined (by demotion and probation) on the 

basis that he was untruthful in the January 23 e-mail. Second, it is not imperative 

to appellees’ affirmative defense that Southlake was required to fire appellant for 

untruthfulness or that every SDPS employee would have come to the same 

termination decision that Yelverton did. Instead, it is appellees’ defense, based 

on the unambiguous, uncontroverted evidence they presented, that the decision 

makers in this case—Chief Goolsby, Blagg, and Yelverton—would have

uniformly terminated him for untruthfulness regardless of any other factor.

In his brief, appellant relies in part on Moreno v. Texas A & M Univ.-

Kingsville, 339 S.W.3d 902 (Tex. App.—Corpus Christi 2011, pet. filed). In that 
36

case, Moreno, the university’s comptroller, had been fired after she reported her 

belief that her supervisor had broken the law by improperly receiving an out-ofstate tuition waiver for his daughter. Id. at 905. In its motion for summary 

judgment, the university

produced evidence that [the supervisor] had other legitimate, nonretaliatory reasons for terminating Moreno’s employment, including 

that Moreno: (1) was unable to complete specific and complicated 

budget-related tasks on her own; (2) did not provide budget reports 

to [the supervisor] in a timely manner after he requested them; 

(3) interfered with and delayed the hiring process for an engineer 

because she did not agree with the salary that [the supervisor]

proposed for him; (4) failed to provide required information and 

services to other [university] departments in a timely manner; and 

(5) was generally uncooperative and difficult to work with. . . .

Moreno produced evidence, however, that these stated 

reasons for her termination were pretextual. 

Id. at 914 (emphasis added) (explaining that the university’s reasons could have 

been pretextual because, in part, Moreno presented evidence that the 

university’s provost believed her to be thorough, knowledgeable, ethical, and 

competent). We have not located evidence in this case that raises a genuine 

issue of material fact that casts doubt on Yelverton’s statement that she would 

have fired appellant for untruthfulness apart from any other motivation. For 

example, we have not found evidence that Yelverton (or Chief Goolsby or Blagg) 

failed to fire someone who was similarly situated to appellant and who was found 

to be and admitted to be untruthful. See Hernandez, 164 S.W.3d at 389 (holding 

that there was no causation in a workers’ compensation retaliation case because 

the plaintiff did not present more than a scintilla of evidence that the employer’s 
37

policy was not uniformly enforced or that the employer’s explanation for the 

termination was false); Parker, 2011 WL 3918159, at *5 (“When an employer 

provides proof that it terminates an employee pursuant to a uniformly applied . . . 

policy, a terminated employee must provide competent evidence that the 

employer treated him differently from similarly situated employees in order to 

survive a summary judgment motion.”).

Appellant compares his firing to the discipline faced by two other Southlake 

employees: Kevin Northcutt and Lieutenant Kenny. Yelverton’s affidavit 

described that several years before appellant made his whistleblower complaints, 

Northcutt, who worked in Southlake’s Public Works Department, made a 

whistleblower report about that department’s wrongdoing. Yelverton said that 

Northcutt’s whistleblowing led to extensive investigations by the city and 

precipitated the firing of a number of Southlake’s employees. Because Northcutt 

was involved in the wrongdoing, he was suspended for a period of time, but he 

continued to be employed by the city for five years after that until he voluntarily 

resigned. We conclude that Northcutt’s continued employment with Southlake

does not raise a genuine issue of material fact that casts doubt on the reason for 

appellant’s firing; Northcutt was not found to be untruthful, and he was not an 

employee of the police department.

Yelverton’s affidavit also said of Lieutenant Kenny,

In one instance, former Police Lieutenant Michael Kenny had faced 

several internal charges, and based on an initial determination that 

he had been untruthful, his employment was terminated. During the 
38

appeal process, I determined that Michael Kenny may have stated 

information incorrectly, but did not do so intentionally. Therefore, I 

decided Kenny had not been untruthful. Michael Kenny’s 

employment was reinstated. [Emphasis added.]

Like Northcutt, Lieutenant Kenny is not similarly situated with appellant.

Yelverton ultimately found Lieutenant Kenny to not be untruthful, and it is 

indisputable that appellant was untruthful when he wrote in the January 23 e-mail 

that Watkins had sent the January 9 e-mail. If anything, the evidence as to 

Lieutenant Kenny’s initial discipline of termination for untruthfulness and 

subsequent reinstatement when he was found to not be untruthful supports

appellees’ affirmative defense that they would have fired appellant for 

deceptiveness and untruthfulness.

27

For all of these reasons, based upon the summary judgment evidence that 

appellees presented and upon the lack of evidence by appellant to raise a 

genuine issue of material fact that he would not have been fired based on his 

untruthfulness, we conclude that appellees conclusively proved their entitlement 

to summary judgment on the affirmative defense of section 554.004(b), and we 

hold that the trial court did not err by granting appellees’ motion for summary 

judgment and plea to the jurisdiction. See Tex. Gov’t Code Ann. § 554.004(b); 

Tex. R. Civ. P. 166a(b), (c); Lueck, 290 S.W.3d at 883 (explaining that the 

 

27We note that this evidence also seems to contradict appellant’s claim that 

he was fired because he was a whistleblower. Appellant has noted that 

Lieutenant Kenny and Northcutt were also whistleblowers, and according to 

Yelverton, Lieutenant Kenny and Northcutt retained their employment with 

Southlake.
39

elements of a whistleblower claim may be considered to determine both 

jurisdiction and liability). We overrule appellant’s second issue, and because that 

issue is dispositive of appellant’s claim under the Whistleblower Act, we decline 

to address appellant’s other issues.

28

 See Tex. R. App. P. 47.1.

Conclusion

Having overruled appellant’s second issue, which is dispositive in his 

appeal, we affirm the trial court’s judgment.

TERRIE LIVINGSTON

CHIEF JUSTICE

PANEL: LIVINGSTON, C.J.; WALKER and MCCOY, JJ.

MCCOY, J., concurs without opinion.

DELIVERED: May 31, 2012

 

28In his fourth issue, appellant contends that the trial court abused its 

discretion by excluding some of his summary judgment evidence upon appellees’ 

objections. We have considered the summary judgment evidence specifically 

described within appellant’s fourth issue, and we have determined that the 

evidence does not affect the resolution of appellant’s second issue. Appellant’s 

first and third issues discuss other grounds upon which the trial court might have 

granted appellees’ summary judgment motion.