*District Judge of the Northern District of Texas, sitting

by designation. 

1

United States Court of Appeals,

Fifth Circuit.

No. 93-8376.

Jerry DAVIS, Plaintiff-Appellee, Appellant,

v.

ECTOR COUNTY, TEXAS, et al., Defendants,

Ector County, Texas, and John Smith, District Attorney of Ector

County, Texas, Defendants-Appellants,

O.A. "Bob" Brookshire, Individually and in his capacity as Ector

County Sheriff, Defendant-Appellee.

Dec. 30, 1994.

Appeal from the United States District Court for the Western

District of Texas.

Before WISDOM and JONES, Circuit Judges, and FITZWATER, District

Judge*.

WISDOM, Circuit Judge:

The plaintiff, Jerry Davis, seeks redress in federal court for

his loss of employment with the principal defendant, Ector County,

Texas. Our decision today will only partially satisfy him: In

part we affirm and in part we reverse the district court's

judgment.

In November 1991, Davis filed suit against Ector County,

Texas; Gary Garrison, individually and in his official capacity as

Ector County District Attorney; Sheriff O.A. "Bob" Brookshire;

and two deputy sheriffs, David Weaver and Eldon Blount. In his

complaint, Davis alleged that the defendants fired him in
 

1Tex.Rev.Civ.Stat.Ann. art. 6252-16a, § 2 (Vernon

Supp.1993). The statute has been updated and now appears at

Tex.Gov't Code Ann. §§ 554.001 et seq. (Vernon Supp.1994). 

2

retaliation for his sending a letter, the contents of which we

detail below. In so doing, he contends, they violated his First

Amendment rights and the Texas Whistle Blower Act1.

Davis began his tenure with Ector County as an investigator

for the Permian Basin Drug Task Force ("Task Force") in June 1990.

As a Task Force employee, Davis came under the supervision of the

District Attorney who at that time was Gary Garrison. In October

of 1991, his wife, Connie Davis, filed a sexual harassment claim

against her employer, the Ector County Sheriff's Office, in the

Ector County Commissioners' Court. At some point in this general

time frame, Garrison admonished the plaintiff not to involve the

Task Force or the District Attorney's office in his wife's lawsuit.

As part of that warning, Garrison told Davis to stay away from the

Sheriff's office and keep to a minimum his contacts with the

Sheriff's employees.

The defining moment of this action came when Davis sent a

letter to the Ector County Commissioners' Court. In that letter,

Davis set out in detail his wife's allegations of sexual harassment

at the Sheriff's office. Davis contends that he sought to

underscore the seriousness of his wife's allegations and, more,

squelch rumors that his wife's complaint was fabricated as a means

of causing the current Sheriff to resign, or suffer a weakened
 

2These rumors theorized that Davis himself was plotting a

run for Sheriff. As a means of putting an end to that talk,

Davis attached to his letter two other letters he had written to

the Republican and Democratic party chairmen disavowing any

intention of running for Sheriff as a representative of either

party. 

3

public image.2 He asserts that he also sought to stave off a

potential official coverup of sexual harassment in the Sheriff's

Office.

When Garrison learned that Davis had written the letter to the

court, he felt that Davis had defied him and he promptly terminated

Davis's employment. Davis believes that he was terminated because

he exercised his First Amendment rights and because he reported a

violation of law to the Ector County Commissioners' Court.

Accordingly, he filed suit. The defendants answered with the

defense that Davis was discharged for insubordination and, in

particular, enmeshing the Task Force in the private affairs of his

wife.

Davis's suit touched off a meandering procedural journey that

dismissed and reinstated claims and parties alike. In his First

Amended Complaint, Davis alleged five causes of action, each

relating to specific defendants. He alleged that Ector County and

Garrison violated his First Amendment rights; that Ector County

violated his rights under the Texas Whistle Blower Act; that

Brookshire, Weaver, and Blount violated his liberty interest under

the Fourteenth Amendment; that Ector County and Brookshire

intentionally interfered with his business relationship; and that

Brookshire made slanderous statements which damaged his reputation.
 

3In that claim, Davis charged that the defendants violated

his Fourteenth Amendment liberty interest by falsely identifying

him as a police officer who raped a female inmate two years

previously. 

4

Garrison was the first defendant to file a summary judgment

motion. The district court denied Garrison's motion on Davis's

First Amendment claim but granted summary judgment on the Whistle

Blower claim. Ector County filed a separate motion for summary

judgment, which the district court similarly granted as to Davis's

Whistle Blower claim. At that point, the court dismissed the

Whistle Blower claim in its entirety. The district court similarly

dismissed Davis's Fourteenth Amendment claim against Brookshire,

Weaver, and Blount.3

In March 1993, however, the district court granted Davis's

motion to reinstate his Whistle Blower claim. In the interim, on

January 1, 1993, John Smith began his term as District Attorney of

Ector and, as such, replaced Garrison as the named defendant in the

suit against the District Attorney in his official capacity.

Eventually a jury trial was held. The jury found against

Smith, in his official capacity as District Attorney, and against

Ector County on both the First Amendment and Whistle Blower claims.

The jury awarded Davis $90,800 in compensatory damages and $200,000

in punitive damages. In accordance with the jury's verdict, the

district court held that Davis take nothing from Brookshire in his

individual or official capacities and that Ector County and Smith

were liable jointly and severally. In addition, the court ordered

that Davis be reinstated to his old job within ten days. Finally,
 

4From this point in the opinion forward, "defendants" refers

only to Ector County and District Attorney Smith. 

 

5Davis originally raised a point of cross-appeal against

Brookshire as well, but later dropped it. Hence, the present

appeal concerns only Ector County and Smith in his official

capacity and only the issues of whether those defendants violated

Davis's First Amendment rights and the Texas Whistle Blower Act. 

5

the court denied the defendants's motion for a new trial.4

Everybody appeals.5

I. The First Amendment

The defendants assign three distinct errors to the trial

court's judgment against them on Davis's First Amendment claim.

First, they contend that the court erred in instructing the jury

that Davis's speech was on a matter of public concern. Second,

they contend that the court should have granted their motion for

judgment on the grounds that the state's interest in promoting the

efficiency of public services outweighed Davis's and the public's

interest in the speech in question. Last, the defendants contend

that the district court failed to identify the District Attorney as

a policy maker of Ector County, a predicate to a finding of

liability; accordingly, they assert, the court should have granted

their motion for a new trial. We take these arguments in turn.

A.

The first question presented is whether the district court

erred when it instructed the jury that the plaintiff's speech was

on a matter of public concern. Davis's letter focused on the

alleged sexual harassment of assaults on employees of the Ector

County Sheriff's Department. It hinted at a possible coverup at
 

6Although not the subject of this appeal, Davis alluded in

his affidavit to a previous instance in which the Sheriff's

department knew of, but covered up, the sexual harassment of some

department employees. By that reference, Davis intends to place

the letter here at issue into a larger context. He contends that

he wrote the letter to forestall any similar attempt to interfere

with a proper investigation into his wife's allegations. 

 

7See Rankin v. McPherson, 483 U.S. 378, 386 n. 9, 107 S.Ct.

2891, 2898 n. 9, 97 L.Ed.2d 315 (1987); Dodds v. Childers, 933

F.2d 271, 273 (5th Cir.1991). 

 

8Connick v. Myers, 461 U.S. 138, 145, 103 S.Ct. 1684, 1689,

75 L.Ed.2d 708 (1983). 

 

9Id. (quoting N.A.A.C.P. v. Claiborne Hardware Co., 458 U.S.

886, 913, 102 S.Ct. 3409, 3425, 73 L.Ed.2d 1215 (1982)). 

 

10Id. at 146, 103 S.Ct. at 1689-90 (a finding that employee

expression is not on a matter of public concern pretermits

judicial inquiry into other reasons for discharge). 

 

11Thompson v. City of Starkville, Miss., 901 F.2d 456, 463

(5th Cir.1990). 

6

the Sheriff's office which would prevent the matter from being

fully investigated.6 After a de novo review,7 we conclude that the

letter addresses matters of public concern.

The United States Supreme Court set the parameters for our

inquiry in Connick v. Myers.8 In Connick, the Court observed that

speech concerning matters of public interest "is more than

self-expression; it is the essence of self-government".

Accordingly, speech by public employees on public issues "occupies

the "highest rung of the hierarchy of First Amendment values' ".9

We note that, were we to find that the subject matter of Davis's

letter is not a matter of public concern, our inquiry would end.10

There is perhaps no subset of "matters of public concern"

more important than bringing official misconduct to light.11 In
 

12855 F.2d 187, 192 (5th Cir.1988). 

 

13See also Thompson, 901 F.2d at 463 (the exposure of

misconduct in a police department "should be classified as speech

addressing a matter of public concern"); Conaway v. Smith, 853

F.2d 789, 796 (10th Cir.1988) (per curiam) ("Speech which

discloses any evidence of corruption, impropriety, or other

malfeasance on the part of city officials, in terms of content,

clearly concerns matters of public import."). 

 

14933 F.2d 271 (5th Cir.1991). 

 

15Id. at 273. 

7

Brawner v. City of Richardson, Tex.12, we stated that "the

disclosure of misbehavior by public officials is a matter of public

interest and therefore deserves constitutional protection,

especially when it concerns the operation of a [law enforcement

agency]".13 Davis's letter is squarely within Brawner 's ambit:

it addresses the misbehavior of public officials (the sexual

harassment of public employees) and discloses the possibility of an

official coverup.

The defendants urge that we view Davis's letter differently by

looking to his purpose in writing it. They contend that Davis's

motivation in writing the letter was to dispel the rumors then

circulating that his wife fabricated the sexual harassment charges

so that Davis would have a clear path to the Sheriff's office.

This is a purely private motive, they contend, outside the

constitutional protection accorded to matters of public concern.

For support they rely on Dodds v. Childers14.

In Dodds, we held that a speaker's primary motivation may be

considered when evaluating whether the letter addresses a matter of

public concern.15 In that particular case, we concluded that the
 

16Id. at 273-74. 

 

17Id. at 274; Connick, 461 U.S. at 147-48, 103 S.Ct. at

1690-91. 

 

18The defendants have confused the catalyst for prompting

Davis to write the letter with his purpose in doing so. The

catalyst was Davis's realization that many believed that his

wife's allegations of sexual harassment were fabricated. His

purpose, however, was to dispel those rumors by detailing the

seriousness of his wife's allegations. He hoped his letter would

attest to the veracity of his wife's charges. 

 

19Coughlin v. Lee, 946 F.2d 1152, 1157 (5th Cir.1991)

(footnotes and internal quotations omitted). 

 

20See Wilson v. UT Health Center, 973 F.2d 1263, 1269 (5th

Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 1644, 123

L.Ed.2d 266 (1993). 

8

letter-writer was more concerned with her job security and working

conditions than with any issue in the public interest.16 Hence, we

held that Dodd's speech failed to constitute a matter of public

concern. We were explicit, however, that a proper inquiry does not

elevate motive to a determinative factor; instead, we are to

examine the form, content, and context of the statement.17

A review of the content, form, and context of Davis's letter

reveals that, although Davis may have had mixed motives, his letter

unquestionably addressed a matter of public concern.18 As to

content, the test is whether the information in the letter was

"relevan[t] to the public's evaluation of the performance of

governmental agencies".19 "[R]eports of sexual harassment

perpetrated" on public employees is of serious public import.20 The

fact that he also sought to strengthen the credibility of his wife

does nothing to dilute the public interest inherent in the letter's
 

21See Dodds, 933 F.2d at 273 ("an element of personal

interest on the part of an employee in the speech does not

prevent a finding that the speech as a whole raises issues of

public concern"). It is important to note, however, that a

private issue does not transmogrify into a matter of public

concern merely because the topic might have been of interest to

the public under other circumstances. Id.; Connick, 461 U.S. at

149 & n. 8, 103 S.Ct. at 1691 & n. 8. 

 

22See Thompson, 901 F.2d at 461. 

 

23This should clear up a misconception pressed by the

defendants. They contend that Davis signed his letters "Jerry

Davis, Permian Basin Task Force"—that is, as a public employee,

not as a private citizen. It is true that his letters to the

Democrat and Republican parties contained that signature. Those

letters, however, merely disavowed his intention to run for

Sheriff's office. The letter at issue, the one sent to the

Commissioners' Court, contained his signature as a private

citizen. 

 

24The fact that he wrote his principal letter to the court

rather than, say, posting a bill in a public square does not

affect the public importance of the speech in question. See

Wilson, 973 F.2d at 1270 (speaker did not forfeit protection by

choosing an internal forum); Johnston v. Harris County Flood

Control Dist., 869 F.2d 1565, 1577 (5th Cir.1989) (employee's

testimony in a closed meeting was protected speech), cert.

denied, 493 U.S. 1019, 110 S.Ct. 718, 107 L.Ed.2d 738 (1990). 

9

contents.21

 The form and context of Davis's letter lend further support

to our conclusion. First, Davis wrote the letter in his capacity

as a citizen, not as a public employee.22 He signed the letter,

"Jerry Davis, 1601 E. Century, Odessa, Texas 79762".23 Moreover,

he has never been an employee of the Sheriff's office—the subject

of the letter. Davis's additional letters to the Democratic and

Republican parties further underscore the public nature of the

letter in question, as does his decision to write to the court,

instead of to his supervisor.24

B.
 

25Pickering v. Board of Education of Township High School

District 205, 391 U.S. 563, 568, 88 S.Ct. 1731, 1734-35, 20

L.Ed.2d 811, 817 (1968). 

 

26See Brawner, 855 F.2d at 192. Other factors we have

considered include the time, place, and manner of the employee's

speech and whether the employee's conduct could be considered

hostile, abusive, or insubordinate. Click v. Copeland, 970 F.2d

106, 112 (5th Cir.1992). 

 

27Davis never mentioned the District Attorney's office in

his letter nor intimated in any way that the scope of his

concerns went beyond underscoring the gravity of his wife's

10

Not all matters of public concern are ripe for comment by

public employees in all circumstances. The Supreme Court has

instructed that we must consider the state's interest in promoting

the efficiency of the public services it provides through its

employees.

25 Although we weigh a number of factors, our inquiry

centers on three: (1) whether the speech was likely to generate

controversy and disruption; (2) whether the speech impeded the

general operation of the department; and (3) whether the speech

affected the working relationships necessary to the proper

functioning of Ector County administration.26 Our review of these

factors supports the district court's judgment that the value of

the speech outweighed the threat that the speech posed to

efficiency.

Our review of the record discloses no impairment to the

efficiency of Ector County administration or any County offices as

a result of Davis's letter. No evidence exists that the letter

Davis wrote defied Garrison's instruction to give the Sheriff's

office a wide berth, let alone handicapped the communication

between the two offices or their working relationship.27 In fact,
allegations. 

 

28That is not surprising. This case is distinct from the

typical scenario in which an employee complains about his job or

his superiors and, in so doing, stirs up the smooth workings of

the office. Here, Davis complained about a problem in another

branch of the County where he has never worked. 

 

29As a preliminary step toward holding a governmental entity

liable for the acts of its agents, the court must identify the

policy makers, that is:

those officials or governmental bodies who speak with

final policy making authority for the local

governmental actor concerning the action alleged to

have caused the particular constitutional or statutory

violation at issue.

Jett v. Dallas Indep. School District, 491 U.S. 701, 737,

109 S.Ct. 2702, 2724, 105 L.Ed.2d 598 (1989). 

 

30766 F.2d 193 (5th Cir.), denying reh., 759 F.2d 412 (5th

Cir.), cert. denied, 474 U.S. 1020, 106 S.Ct. 570, 88 L.Ed.2d 555

(1985). We acknowledged there that "[t]he point is a nice one

and fairly debatable". Id. at 194. That concession did not

affect our conclusion, however, that the District Attorney is a

county official. Id. at 195. 

11

the Sheriff himself testified that Davis's letter did not upset him

nor did it cause any appreciable change in the tenor of the

departments' communication.28

C.

The defendants next assign error to the district court's

finding that Garrison, as District Attorney, was a "policy maker"

for Ector County.29 The defendants argue that the District Attorney

is an officer of the state and, thus, incapable of being a policy

maker for Ector County.

We rejected this very contention in Crane v. Texas.30 In

Crane, we acknowledged that there are "numerous, if relatively

minor, attributes of a State official" possessed by a Texas
 

31Id. at 194. 

 

32Id. at 195. 

 

33See id. 

 

34This case is readily distinguishable from Echols v.

Parker, 909 F.2d 795 (5th Cir.1990), upon which the defendants

rely. Echols involved a district attorney's attempt to enforce

an unconstitutional state statute. Specifically, the district

attorney instituted a criminal action against Lonnie Echols and

four others for participating in a peaceful protest and boycott

of a Sunflower, Mississippi pharmacy. Id. at 797. The district

attorney acted expressly pursuant to Miss.Code Ann. § 97-23-85

(1972), an anti-boycott statute. That state statute later was

declared unconstitutional. Id. No question of the district

attorney as policy maker was presented.

Instead, the case at hand bears a stronger resemblance

to Van Ooteghem v. Gray, 584 F.Supp. 897 (S.D.Tex.1984),

aff'd, 774 F.2d 1332 (5th Cir.1985). In Gray, we affirmed

the district court judgment that the district attorney

derives his policy making authority from the electorate and

"need not be connected to a council or other governing

body". Id. at 898. As an elected official who represents

12

district attorney.31 Still, none of those attributes displaces the

"[o]ther and more significant factors" that militate in favor of

viewing the district attorney as a county official.32 The district

attorney's office is limited to exercising its powers in Ector

County, it is elected by Ector County voters, and it is supported

with Ector County funds.33 In sum, although the office (like Ector

County itself) is a creation of the state, all of its functioning

is county-based.

The present matter is a case in point. Garrison enjoyed free

reign over the District Attorney's office and set department policy

without oversight. His decision to fire Davis is but one example.

As such, when he fired Davis, Garrison was acting as the policy

maker for Ector County and was exercising official policy.34
the final authority in his office, his "action must

necessarily be considered to represent official policy". 

Id.; cf. Turner v. Upton County, Texas, 915 F.2d 133 (5th

Cir.1990), cert. denied, 498 U.S. 1069, 111 S.Ct. 788, 112

L.Ed.2d 850 (1991) ("Because of the unique structure of

county government in Texas ... elected county officials ...

hold virtually absolute sway over the particular tasks or

areas of responsibility entrusted to him by state statute

and is accountable to no one other than the voters for his

conduct therein.") (quoting Familias Unidas v. Briscoe, 619

F.2d 391, 404 (5th Cir.1980)). 

 

35Tex.Rev.Civ.Stat.Ann. art. 6252-16a, § 2 (Vernon

Supp.1993). 

 

36In the present matter, we refer to Davis's letter as the

"report" at issue. 

 

37Castaneda v. Texas Dept. of Agriculture, 831 S.W.2d 501,

503 (Tex.App.—Corpus Christi 1992). 

13

II. The Texas Whistle Blower Act

We turn now to Davis's claim under the Texas Whistle Blower

Act.35 The statute provides, in pertinent part:

A state or local governmental body may not suspend or

terminate the employment of, or otherwise discriminate

against, a public employee who reports a violation of law to

appropriate law enforcement authority if the employee report

is made in good faith.36

The defendants assign a number of errors to the court's handling of

the Whistle Blower claim. Because we hold that the district

court's instructions to the jury were impermissibly vague regarding

the causation element, we must reverse.

A.

The Texas Whistle Blower Act "is designed to enhance openness

in government and compel the government's compliance with the law

by protecting those who inform authorities of wrongdoing".37 As a
 

38See Id.; Fuchs v. Lifetime Doors, Inc., 939 F.2d 1275

(5th Cir.1991). 

 

39See Lastor v. City of Hearne, 810 S.W.2d 742, 744

(Tex.Civ.App.—Waco 1991, writ denied). 

 

40The defendants rely almost exclusively on Winters v.

Houston Chronicle Pub. Co., 795 S.W.2d 723 (Tex.1990) and, in

particular, on Justice Doggett's concurring opinion for almost

all of their Whistle Blower arguments. But Winters did not

address the statute at issue. Instead, the Winters court

addressed whether a whistle blower in the private sector could

state a cause of action in spite of Texas's recognition of the

employment-at-will doctrine. Justice Doggett, in his oft-cited

concurrence, outlined what that cause of action might look like. 

14

remedial statute, we construe it liberally.38

The defendants raise both substantive and technical

objections. As to the former, the defendants argue that the

purpose of the Whistle Blower Act is to encourage employees to come

forward with knowledge of the misdeeds of public officials without

fear of reprisal,39 but assert that the purpose is not furthered by

the facts of this case. Castaneda, the most helpful recent

construction of art. 6252-16a, clarified some ambiguities in the

statute and, in so doing, expressly rejected much of the

defendants' argument.40

For example, the Castaneda court rejected the assertion that

the plaintiff must "initiate" a report. Instead, the court

reasoned, the statute requires only that the plaintiff report a

violation of the law; that he be an initiator is not required.

The court stated that the phrase "reports a violation of the law"

includes

any disclosure of information regarding a public servant's

employer tending to directly or circumstantially prove the

substance of a violation of criminal or civil law, the State
 

41Implicit in this conclusion is a rejection of the

defendants' charge that the trial court erred when it

incorporated the holding in Castaneda in the jury instructions. 

In fact, the district court, in reinstating the claim, was guided

by the holding in Castaneda. Moreover, the appellants concede

that the plaintiff did initiate a report. 

15

or Federal Constitution, statutes, administrative rules or

regulations.

In the instant case, the defendants contend, Davis brought no new

facts to light; he merely attempted to purify the speculation as

to his wife's motives in filing the sexual harassment suit.

The letter itself, underscored by our First Amendment analysis

of its contents, renders that charge unpersuasive. Davis detailed

for the Commissioners' Court the sexual harassment allegations and

the possibility of an official coverup, plainly satisfying the

requirement that the plaintiff report a violation of the law. We

thus reject, as did the district court upon reinstating Davis's

Whistle Blower claim, the contention that "the whistle had already

blown" and, therefore, that the statute did not protect Davis.41

The defendants' more technical or, perhaps, textual

objections also are easily dispatched. They assert, for instance,

that Davis has not met the "in the workplace" requirement: Davis

reported violations alleged to have occurred in the Sheriff's

department, by whom he has never been employed. Using that logic,

they similarly charge that Davis's report did not concern his

"employer".

The workplace and employer in this case, however, is Ector

County, not merely Davis's immediate supervisor. If we gave the

statute the narrow construction that the defendants urge, a whistle
 

42Davis also satisfied the requirement that the report be

made to the appropriate law enforcement authorities. The

Castaneda court defined an appropriate law enforcement authority

as "any entity with the capacity through legal processes or

otherwise to take remedial action with respect to the alleged

violation". Castaneda, 831 S.W.2d at 504. Accord Knowlton v.

Greenwood Independent School Dist., 957 F.2d 1172, 1181 (5th

Cir.1992); see also Travis County v. Colunga, 753 S.W.2d 716,

719 (Tex.App.—Austin 1988, writ denied) (legislature intended

term "appropriate" to be "sufficiently elastic" to include any

civil authorities having power to compel obedience to the law in

a particular case); City of Dallas v. Moreau, 697 S.W.2d 472,

474 (Tex.App.—Dallas 1985, no writ) (authority must have the

power and duty to change the problem reported). The letter to

the Commissioners' Court is well within that definition. 

 

43Roberts v. Wal-mart Stores, Inc., 7 F.3d 1256, 1258 (5th

Cir.1993). 

16

blower's protection would extend only so far as his departmental

assignment. Such would contravene the purpose of the statute. We

conclude that Davis reported violations concerning his employer and

addressed issues concerning his workplace.42

B.

Although we conclude that Davis stated a proper cause of

action under the Texas Whistle Blower Act, we nonetheless must

reverse the judgment of the district court because the instructions

tendered to the jury were sufficiently vague as to permit

uncertainty as to the correctness of the verdict.

"The function of the reviewing court with respect to

instructions is to satisfy itself that the instructions show no

tendency to confuse or mislead the jury with respect to the

applicable principles of law."43 The district court has wide

latitude in instructing the jury on the law and we will thus
 

44Bender v. Brumley, 1 F.3d 271, 277 (5th Cir.1993). 

 

45Id. (quoting Kyzar v. Vale Do Ri Doce Navegacai, S.A., 464

F.2d 285, 290 (5th Cir.1972), cert. denied, 410 U.S. 929, 93

S.Ct. 1367, 35 L.Ed.2d 591 (1973)). 

 

46Winters, 795 S.W.2d at 732 (Doggett, J. concurring). 

 

47Id. at 733. 

17

"ignore technical imperfections".44 In spite of that deference, we

will reverse if we conclude that the trial court erred with respect

to the instructions proffered to the jury and that, based upon the

record, the error affected the outcome of the case. In other

words, does the charge "as a whole leave[ ] us with substantial and

ineradicable doubt whether the jury has been properly guided in its

deliberations"?45 We have that doubt here.

Although he was addressing a whistle blower cause of action in

the private sector, Justice Doggett understood the need for a

strong causation element: "The reporting of these activities must

have been the principal reason for the employer's retaliation."46

Significantly, Justice Doggett added, "The employer may refute the

causation element by proving dismissal for reasons other than the

act of whistle blowing."47 The instructions should have

communicated this to the jury.

The court's instructions provided, in part:

You are instructed that, in order to recover under this

statute, the Plaintiff must prove by a preponderance of the

evidence that:

1. He was discharged;

2. He was discharged after reporting violations of the law and

because he made such a report;
 

48We note that the defendants properly objected to the trial

court's jury instructions and proffered a proposed instruction

which would have cured the assigned error. See F.D.I.C. v.

Mijalis, 15 F.3d 1314, 1318 (5th Cir.1994) (defendants must show

"as a threshold matter that the proposed instruction correctly

stated the law"). 

18

3. His report was made in good faith;

4. The acts of the District Attorney of Ector County were a

proximate cause of any damages sustained by the Plaintiff;

and

5. The plaintiff suffered actual damages.

The second element focusses on causation (i.e., why Davis was

fired). The defendants charge that the court erred when it failed

to give an instruction that, if the District Attorney fired Davis

for insubordination, the jury must find for the defendants.48 We

agree.

The phrase "He was discharged ... because he made such a

report" is susceptible of two meanings. First, it could mean that

Davis was fired because he brought facts to light in a report—facts

that the District Attorney would have preferred to keep from the

public. Under that construction, a jury properly could find that

the Whistle Blower Act had been violated.

But the phrase has another meaning and, in the case at hand,

a likely one. It could mean that Davis was fired because he made

a report; i.e., for insubordination in defying the orders to stay

clear of the Sheriff's office. Under this probable construction,

a jury could not award damages under the Whistle Blower Act because

the District Attorney's objection would not have been to the

content of the letter (i.e., reporting a violation), but that, by
 

49For example, had Davis not referred to his wife's case

but, out of antagonism, written a derisive letter intending to

insult the Sheriff's office, the District Attorney might have

taken precisely the same course of action—discharging Davis—for

precisely the same reason, insubordination and disobedience to

departmental orders. The content of the report at all times

would have been immaterial, even if Davis by chance reported a

violation. 

 

50Knowlton, 957 F.2d at 1179. 

 

51We do not hold that this instruction need be given in

every Whistle Blower Act case. Where the facts of the case to

not compel the often fine distinctions between conduct that would

and conduct that would not support a cause of action, the court's

instruction would suffice. See Texas Dept. of Human Services v.

Green, 855 S.W.2d 136, 150 (Tex.App.—Austin 1993, error denied)

(the instruction "[D]id Defendants retaliate against Plaintiff

for reporting ... violations of law?" sufficiently instructed

jury on necessary causal link). Here, however, Garrison's

admonitions to Davis required that the jury knowingly distinguish

between permissible and impermissible reasons for the discharge. 

The court should have given the Knowlton instruction or a similar

instruction. 

19

writing a letter, Davis risked involving the District Attorney's

office in his wife's lawsuit. From the District Attorney's

perspective, it might be merely fortuitous that the letter reported

a violation of the law.49

In the Knowlton case, the district court gave jury

instructions that avoided this error. After instructing the jury

on the elements of a Whistle Blower claim, the court instructed the

jury:

The defendant may rebut this presumption by offering evidence

and proving the defendant fired such plaintiff for a

nondiscriminatory reason.50

That is precisely the instruction that should have been given

here.51

Davis makes the broad assertion that, if the speech in
 

52In the light of our holding, we do not address the

defendants' remaining contention that the district court erred

when it submitted the issue of punitive damages to the jury. 

 

53We note that the compensatory damages were awarded for the

First Amendment violation as well as the Whistle Blower Act

claim. Hence, our holding affects only the punitive damages

award. 

20

question is protected by the First Amendment, it cannot be

insubordination to exercise the right to speak. The issue,

however, is whether the defendants's actions violated the Texas

Whistle Blower Act. If Davis was discharged for insubordination as

opposed to being discharged in retaliation for exercising his

protected right to speak, the cause of action would not lie.

Although it is impossible to say whether the jury properly

understood the law, we conclude that the instruction that was given

prejudiced the defense. It allowed the jury to answer the second

element in the affirmative under facts that would not have

supported a Whistle Blower Act claim. For that reason, we reverse

and remand.52

III.

In accordance with the foregoing, the trial court judgment is

AFFIRMED on the First Amendment issues and REVERSED and REMANDED on

the Texas Whistle Blower Act issues.53

FITZWATER, District Judge, concurring in part and dissenting

in part:

I join completely the majority's resolution of plaintiff's

First Amendment claim, and therefore concur in part I of its

opinion. I also agree with certain portions of the majority's

analysis of plaintiff's Texas Whistle Blower Act claim, and
21

therefore join part II(A) of the opinion. Because I do not agree

that the trial court's instruction regarding the causation element

of plaintiff's Whistle Blower claim constitutes reversible error,

I respectfully dissent from part II(B). I would uphold the Whistle

Blower judgment insofar as it awards actual damages, and I would

address defendants' contention—unreached by the majority—that the

jury's award of punitive damages must be reversed because there is

no evidence of the malicious conduct that is necessary to support

such a recovery.

I

The majority correctly analyzes the jurisprudence that governs

our review of the trial court's instructions. I do not quarrel

with its discussion of the applicable law. I am unable, however,

to join the conclusion that the trial court's Whistle Blower

causation instruction constitutes reversible error.

A

I would hold as a threshold matter that defendants did not

comply with the requirement that they submit a proposed instruction

that correctly states the law. See FDIC v. Mijalis, 15 F.3d 1314,

1318 (5th Cir.1994).

Defendants requested that the trial court give the following

instruction "for both the First Amendment and Whistle Blower

action," see Appellants Br. at 28:

If you find that the Plaintiff has established each element of

his claim, you must then decide whether the Defendant has

shown by a preponderance of the evidence that he would have

dismissed the Plaintiff for other reasons even if the

Plaintiff had not exercised his protected speech activity. If

you find that the Defendant would have dismissed the Plaintiff
 

1The majority opinion expressly differentiates between the

First Amendment and Whistle Blower claims. See --- F.3d at ----

[maj. slip op. at 1393]. 

 

2This ambiguity apparently arises from defendants' misuse of

"would have" as an auxiliary verb form in place of the word "had"

in a conditional clause introduced by the word "if." For the

second sentence to read as defendants likely intended it, the

sentence should have stated, "If you find that the Defendant had

dismissed the Plaintiff for insubordination, then your verdict

should be for the Defendant." 

22

for insubordination, then your verdict should be for the

Defendant. If you find for the Plaintiff against the

Defendant on their defense, you must then decide the issue of

Plaintiff's damages.

Id. (quoting requested instruction).

This instruction did not apply uniformly to both claims.1 By

referring in the first sentence to "protected speech activity," the

instruction did not correctly state the law applicable to the

Whistle Blower claim.

Moreover, assuming that the second and third sentences can be

removed from the instruction as a whole and analyzed in isolation,

they likewise do not correctly state the law. The second sentence

instructs the jury that it should return a verdict for the

defendant if the jury finds "that the Defendant would have

dismissed the Plaintiff for insubordination." (emphasis added).

I would hold that this instruction is susceptible of either of

these two meanings: that defendant in fact dismissed plaintiff for

insubordination (the meaning defendants-appellants give it), or

that defendant intended at some point to dismiss plaintiff for

insubordination, but instead terminated him on some other basis.

Because the requested instruction is itself ambiguous,2 I
23

would hold that the trial court did not commit reversible error

when it refused to give the instruction to the jury.

B

I also respectfully disagree with the majority's conclusion

that the jury could reasonably have interpreted the causation

instruction to allow it to find defendants liable merely for

reprimanding plaintiff for insubordination rather than for conduct

protected by the Texas Whistle Blower Act.

The majority quotes the causation element by inserting

ellipses in place of the words "after reporting violations of the

law and." See --- F.3d at ---- [maj. slip op. at ----]. It then

concludes that this edited form of the causation element, which

reads, "He was discharged ... because he made such a report," is

susceptible of two meanings. Id. I would hold that the causation

instruction, viewed as a whole, properly guided the jury. Stated

in its entirety, the instruction informed the jury that plaintiff

was obligated to prove that "He was discharged after reporting

violations of the law and because he made such a report." By my

light, this instruction correctly advised the jury that plaintiff

was required to establish that he was discharged because he

reported violations of the law, and not because of other factors,

such as insubordination. I would not reverse the jury verdict on

the basis of the causation instruction.

C

I likewise do not join the majority's conclusion that the

trial court should have given an instruction like the one in
24

Knowlton v. Greenwood Indep. Sch. Dist., 957 F.2d 1172, 1179 (5th

Cir.1992). See --- F.3d at ---- [maj. slip op. at 1393].

It bears noting, at the outset, that the causation instruction

that the majority rejects today is very similar to the one given in

Knowlton. See 957 F.2d at 1179 n. 10 (instructing jury that

plaintiff must prove inter alia that she was "discharged after

reporting a violation of the law and for the reason that she made

such a report"). But aside from that, the particular Knowlton

instruction that the majority would require was neither requested

by defendants nor shown to be applicable to the present case.

The majority holds that the trial court should have instructed

the jury that

The defendant may rebut this presumption by offering evidence

and proving the defendant fired such plaintiff for a

nondiscriminatory reason.

--- F.3d at ---- [maj. slip op. at 1393] (quoting Knowlton, 957

F.2d at 1179) (emphasis added) (footnote deleted). The words "may

rebut this presumption" are significant, because in Knowlton the

district court also instructed the jury that if the plaintiff met

her burden of proof as to all applicable elements, then the jury

must presume that the plaintiff was discharged or suspended in

violation of the Act. See Knowlton, 957 F.2d at 1179 n. 10. The

instruction that the majority concludes "is precisely the

instruction that should have been given here," see --- F.3d at ----

[maj. slip op. at 1393], was required in Knowlton to counterbalance

the directive that the jury presume a violation of the Act. In the

present case, however, defendants have not shown that the trial
25

court gave a presumption instruction like the one in Knowlton.

Accordingly, I respectfully disagree with the conclusion that the

trial court committed reversible error in this respect.

II

I concur in parts I and II(A) of the majority opinion, and

respectfully dissent from part II(B) and the majority's failure to

reach the punitive damages question. Because I would not reverse

the finding of Whistle Blower Act liability, I would reach the

merits of defendants' contention that the Whistle Blower punitive

damages award is not supported by the necessary evidence of

malicious conduct.