By Randall Holbrook, J.D.
Among other things, the city claimed the two demoted police officers were just expressing opinion, not making an actionable disclosure under the Texas Whistleblower Act.
The Texas Whistleblower Act retaliation claims of two demoted Fort Worth police officers who contended they were demoted for recommending the firing of an officer who was alleged to have used excessive force, committed false arrest, and later perjured himself survived the city’s motion for summary judgment. Affirming a state trial court, a Texas appeals court ruled against the city’s argument that the officers’ reports were just opinion and not a report of violations of law, that the city’s knowledge of the incident barred whistleblower protection, that the demoted officers did not act in good faith, and that the demoted officers leaked confidential information (City of Fort Worth v. Pridgen and Keyes, June 18, 2020, Osborne, L.).
Incident involving force. The two officers participated in the internal department investigation of an arrest by another officer, which stemmed from a disturbance call involving children allegedly throwing trash in a neighbor’s yard and the neighbor’s alleged choking of one of them. The responding officer argued with the child’s mother and said that if she “pissed” him off, he would take her to jail. The mother’s 15-year-old daughter then stepped between her and the officer. The argument escalated; the officer pushed the mother to the ground, placed her under arrest, then approached the mother’s 19-year-old daughter (who was recording the incident with her cell phone), placed her under arrest, and confiscated her cell phone.
The encounter led to allegations of racism, as the two arrestees are African American, and the officer is Caucasian. In the subsequent investigation by the department, both demoted officers recommended that the officer involved should be fired. Instead, he was suspended for ten days. The two officers, however, were both demoted because the department said they had disseminated confidential documents without authorization by giving the lawyer who represented the mother a copy of a thumb drive with a video recording of the arrest from the officer’s body camera and information from the officer’s confidential personnel file.
Disclosure of known information. The city argued that the demoted officers did not “report” a violation of law because the Chief of Police already knew about the incident, had seen video of the incident on Facebook, and had already ordered a full Internal Affairs investigation. The Whistleblower Act requires a showing that an employee made a “disclosure” to an “appropriate authority.” Neither the Act nor the case law interpreting the Act requires that the “appropriate authority” must be unaware of the violation at the time the report is made.
Facts, not opinions. The city also argued that the demoted officers did not report a violation of law, but only expressed their “opinions about discipline and the consequences of [the officer’s] conduct,” which “are simply not the types of ‘reports’ the Whistleblower Act protects.” The demoted officers, however, offered evidence that they did more than merely offer their opinions. In depositions, they testified that after viewing the body camera video, the Facebook video, and the arrest affidavits, they concluded that the officer had used excessive force, falsely arrested the daughter on the ground that she had pushed him, assaulted the daughter, and used excessive force when he “torqued” her handcuffed arms above her head. They also concluded that the officer had committed perjury in the arrest affidavit.
In the court’s view, the key question was not how a whistleblower worded a report, but whether there was some law prohibiting the conduct described in the report. The demoted officers asserted that they relied on the facts revealed in the videos and affidavits as the basis for their reports.
Good faith. In addition, the city contended that the demoted officers did not objectively report in good faith, alleging that the demoted officers failed to consider evidence showing that the officer’s conduct was based on a mistake, was not intentional, and that their failure was not reasonable in light of their experience as career peace officers. However, the demoted officers argued that the videos and arrest affidavits provided them with an objectively reasonable basis for their report, saying that “[b]ased on their years of training and experience of investigating police officers,” the officer acted intentionally, and his statements and explanations denying wrongdoing would be expected by a law enforcement official.
They also pointed out that they did not pursue a referral for further investigation because the chief rejected the idea, and “[r]ather than commit insubordination,” they complied with that decision. The demoted officers raised a fact issue as to their objective good faith in reporting the violations of law, which was enough to defeat summary judgment.
Leaking confidential information. Finally, the city claimed that the demoted officers were disciplined only for the leak of confidential documents, because evidence “conclusively linked” them to confidential information from the officer’s employment file. The standard of causation in whistleblower cases is whether the employer’s prohibited conduct would have occurred when it did without the employee’s protected conduct. The employee’s report need not be the sole reason for the adverse employment action.
Here, the demoted officers were demoted more than 90 days after their reports, so there was no presumption that their report caused their demotions, but they offered evidence that their demotions would not have occurred absent their reports. The Chief of Police knew about the reports and he responded negatively to the statement that the officer should be fired. One of the officers testified that the chief no longer replied to his texts, used an accusatory tone when speaking to him, and refused to follow up on a personnel complaint after the report.
Evidence also suggested that the city did not follow its regular policies in the leak investigation; the two demoted officers were questioned repeatedly and at length in several different sessions about the leak, while the other officer’s interviews about the arrests were short and non-adversarial. Plus, the investigation into the arrest incident was rushed because of negative publicity that accompanied the arrests. Accordingly, the court concluded that the two demoted officers offered sufficient evidence from which a jury could conclude that their protected activity at least partially motivated the chief to demote them and that the chief would have reached a different decision in the absence of their protected activity. Much of the conflicting evidence regarding the City’s reasons for demoting the two officers was dependent on the witnesses’ credibility, which are the sole province of the fact finder, reasoned the court.
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