Texas Judiciary Online - HTML Opinion

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Opinion issued=20 November 9, 2006

In=20 The

Court of=20 Appeals

For The

First = District of=20 Texas

NO.=20 01-04-01087-CV

HARRIS = COUNTY,=20 TEXAS, Appellant

CHERYL = NORRIS,=20 Appellee

On = Appeal from the=20 270th District Court

Harris = County,=20 Texas

Trial = Court Cause=20 No. 2003-01307

O P I = N I O=20 N

<= /SPAN>In=20 this wrongful termination suit, a jury found that Harris County, = Texas=20 (=E2=80=9Cthe County=E2=80=9D) wrongfully terminated appellant, = Cheryl Norris, after she=20 attempted to report abuse of a child to her supervisor. In three = related=20 issues, the County argues that (1) the trial court erred in = denying its=20 motion for directed verdict, (2) there was legally insufficient = evidence=20 to support the jury=E2=80=99s finding that Norris=E2=80=99s report = of abuse was made in=20 good faith and was a cause of the County=E2=80=99s decision to = terminate her when=20 it did, and (3) the trial court erred in denying the = County=E2=80=99s motion for=20 judgment notwithstanding the verdict. Norris brings a cross-point = in which=20 she contends that the trial court erred in denying reinstatement. = We=20 affirm.

Background

<= /SPAN>On=20 November 12, 2002, Norris, a caseworker with the Harris County = Juvenile=20 Probation Department, was stationed at the Burnett-Bayland = Reception=20 Center (=E2=80=9CBBRC=E2=80=9D). She testified that her = supervisor, Melissa Watson,=20 requested that she investigate a possible incident involving G.G., = one of=20 the juvenile residents at BBRC that had occurred during the intake = procedure. Norris had twice attempted to contact Antonio Valle, = the=20 supervisor on duty at the time of the alleged incident, but he = told her=20 that he did not have time to discuss it, but would discuss it = later. Valle=20 told Norris that there were no reports of the incident. When = Norris told=20 Watson that there were no reports, Watson instructed her to talk = to G.G.=20 G.G., who was initially reluctant to speak with = Norris, 3DFootnote ultimately told her that, during the = intake=20 process, he had sat down, contrary to instructions given by the = guard,=20 because he was feeling sick. The guard lifted G.G.=E2=80=99s arms = up behind his=20 back in a police hold until he was forced to stand on his tiptoes, = then=20 took him into the hallway and =E2=80=9Cslammed=E2=80=9D him on the = ground five or six=20 times. G.G. was then moved to seclusion in handcuffs and shackles. = After=20 G.G. asked to speak to a supervisor, Valle came into the room. = Valle told=20 G.G. that, if G.G. did not write a grievance concerning the = matter, Valle=20 would not need to write a report saying that G.G. assaulted a = staff=20 member. Norris testified that G.G. =E2=80=9Cknew that was a threat = to keep him [in=20 detention] longer and he just wanted to go home. . . . He was = scared he=20 was going to have to stay longer if he reported it so he = didn=E2=80=99t.=E2=80=9D=20

<= /SPAN>While=20 she was talking with G.G., Norris saw Watson walk by. She asked = her to=20 =E2=80=9CCome here, I want you to hear this first hand, = it=E2=80=99s bad.=E2=80=9D G.G. proceeded=20 to relay the =E2=80=9Cslamming=E2=80=9D and the threat that had = taken place. Watson told=20 Norris to get statements and to see if there were any witnesses. = Norris=20 testified that, while she was taking the statements of G.G. and = another=20 resident in BBRC, Valle =E2=80=9Cshowed up=E2=80=9D and told her = that =E2=80=9Cwe are going to=20 take over the investigation.=E2=80=9D The discussion between Valle = and Norris was=20 confrontational, and Valle testified that Norris became = =E2=80=9Cargumentative=E2=80=9D=20 and =E2=80=9Crefused to follow an administrative = directive.=E2=80=9D

<= /SPAN>Valle=20 testified that statements from residents must be collected by a = supervisor=20 like himself or Watson; therefore, it was improper for Norris to = be taking=20 statements. 3DFootnote Norris, on the other hand, told Valle = that he=20 should not be involved in investigating an incident in which he = was=20 implicated. Norris asked Valle to page Watson, her immediate = supervisor,=20 but Valle did not know the number, and he refused to get the = number from=20 his office.

<= /SPAN>Valle=20 asked Norris for the reports that she had collected on the = incident, and=20 Norris refused to give him the reports. Valle ultimately notified = the=20 police to investigate the alleged abuse of G.G. 3DFootnote

<= /SPAN>The=20 next day, Valle reported Norris=E2=80=99s refusal to comply with = his=20 administrative directives to the superintendent of the BBRC, Terry = Snow.=20 Statements were taken from all involved, and, one week later, = Norris was=20 terminated because of the =E2=80=9CValle incident.=E2=80=9D Norris = sued the County=20 pursuant to the Texas Whistleblower Act 3DFootnote and alternatively pursuant to Texas = Family Code=20 section 261.110, alleging that she was terminated for attempting = to report=20 abuse of a child to her supervisor. At the conclusion of trial, = the jury=20 was asked several jury questions including

<= /SPAN>QUESTION=20 NUMBER 1

Was Cheryl Norris=E2=80=99s report of = abuse, if any, made=20 in good faith and a cause of Harris County=E2=80=99s terminating = Cheryl Norris=20 when it did?

=E2=80=9CGood faith=E2=80=9D means that = (1) Cheryl Norris believed=20 that the conduct reported was a violation of law, and (2) her = belief was=20 reasonable in light of her training and = experience.

&= nbsp; Answer = =E2=80=9CYes=E2=80=9D or = =E2=80=9CNo.=E2=80=9D

&= nbsp; Answer:= =20 (Yes)

If your answer to Question 1 is = =E2=80=9CYes,=E2=80=9D then answer=20 the following question. Otherwise do not answer the following=20 question.

<= /SPAN>QUESTION=20 NUMBER 2

Do you find from a preponderance of the = evidence=20 that Harris County would have terminated Cheryl Norris when it did = even if=20 she had not made a report of a possible violation of=20 law?

&= nbsp; Answer = =E2=80=9CYes=E2=80=9D or = =E2=80=9CNo.=E2=80=9D

&= nbsp; Answer:= =20 (No)

The jury also found that Norris = sustained actual=20 damages of $202,000, and the parties stipulated to = attorneys=E2=80=99 fees in the=20 sum of $15,000. The trial court denied the County=E2=80=99s motion = for directed=20 verdict and judgment notwithstanding the verdict=20 (=E2=80=9CJNOV=E2=80=9D).

No Evidence

<= /SPAN>In=20 three related issues, the County argues that (1) the trial court = erred in=20 denying its motion for directed verdict, (2) there was legally=20 insufficient evidence to support the jury=E2=80=99s finding that = Norris=E2=80=99s report=20 of abuse was made in good faith and was a cause of the = County=E2=80=99s decision=20 to terminate her when it did, and (3) the trial court erred in = denying the=20 County=E2=80=99s motion for JNOV.

Standard of=20 Review

<= /SPAN>A=20 trial court may =E2=80=9Cdisregard any jury finding on a question = that has no=20 support in the evidence=E2=80=9D and render a judgment = notwithstanding a jury=E2=80=99s=20 verdict =E2=80=9Cif a directed verdict would have been = proper.=E2=80=9D Tex. R. Civ. P. 301. In = regard to=20 the County=E2=80=99s no-evidence issues, we note that, when a = party without the=20 burden of proof challenges the legal sufficiency of the evidence, = we=20 consider all of the evidence in the light most favorable to the = prevailing=20 party, indulging every reasonable inference in that = party=E2=80=99s favor.=20 Associated Indem. Corp. v. CAT Contracting, Inc., 964 = S.W.2d 276,=20 285=E2=80=9386 (Tex. 1998); Ned v. E.J. Turner & Co., = 11 S.W.3d 407,=20 408 (Tex. App.=E2=80=94Houston [1st Dist.] 2000, pet. denied). If = there is more=20 than a scintilla of evidence to support the challenged finding, we = must=20 uphold it. Formosa Plastics Corp. USA v. Presidio = Eng=E2=80=99rs &=20 Contractors, Inc., 960 S.W.2d 41, 48 (Tex. 1998). When the = evidence=20 offered to prove a vital fact is so weak as to do no more than = create a=20 mere surmise or suspicion of its existence, the evidence is no = more than a=20 scintilla and, in legal effect, is no evidence. Ford Motor Co. = v.=20 Ridgway, 135 S.W.3d 598, 601 (Tex. 2004) (quoting Kindred = v.=20 Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983)). However, if = the=20 evidence supplies some reasonable basis for differing conclusions = by=20 reasonable minds as to the existence of a vital fact, then there = is=20 legally sufficient evidence. King Ranch, Inc. v. Chapman, = 118=20 S.W.3d 742, 751 (Tex. 2003). The traditional scope of review does = not=20 disregard contrary evidence if there is no favorable evidence, or = if=20 contrary evidence renders supporting evidence incompetent or = conclusively=20 establishes the opposite. City of Keller v. Wilson, 168 = S.W.3d 802,=20 810=E2=80=9311 (Tex. 2005). Evidence can be disregarded whenever = reasonable jurors=20 could do so, an inquiry that is necessarily fact-specific. = Id. at=20 811.

Directed=20 Verdict

<= /SPAN>In=20 issue one, the County argues that the trial court erred in denying = its=20 motion for directed verdict.

<= /SPAN>By=20 statute, professionals are required to report suspected acts of = child=20 abuse or neglect. Tex. = Fam. Code=20 Ann. =C2=A7 261.101(b)(Vernon 2002). Section 261.110(b) of = the Texas=20 Family Code provides that an employer may not terminate the = employment of=20 a person who is a professional and who in good faith reports child = abuse=20 to the person=E2=80=99s supervisor. Tex.=20 Fam. Code Ann. =C2=A7 261.110(b) (Vernon 2002). The statute = does not=20 define the term =E2=80=9Creports child abuse.=E2=80=9D A public = employee who alleges a=20 violation of Section 261.110 may sue the employing state or local=20 governmental entity for relief provided for in the section, and = sovereign=20 immunity is waived to the extent of liability created by the = section.=20 Tex. Fam. Code = Ann. =C2=A7=20 261.110(f) (Vernon 2002). The employee has the burden of proof, = except=20 that there is a rebuttable presumption that the employment was = terminated=20 for reporting abuse if the termination occurs before the 61st day = after=20 the date on which the employee made a report in good faith. = See=20 Tex. Fam. Code = Ann. =C2=A7=20 26.110(i) (Vernon 2002).

<= /SPAN>The=20 County filed a written Motion for a Directed Verdict and also = argued its=20 motion to the trial court. During the hearing, the County = contended that=20 =E2=80=9Cin this case there=E2=80=99s been no evidence that the = plaintiff made a report of=20 child abuse to the supervisor or any other entities listed in the = statute.=20 . . . The report was made by the juvenile to the supervisor, not = by the=20 plaintiff and, so we submit there=E2=80=99s no evidence of making = a report.=E2=80=9D The=20 County continued that =E2=80=9Cthe evidence does not meet the = causation standard=20 here since the =E2=80=93 it=E2=80=99s essentially a but-for type = causation.=E2=80=9D On appeal,=20 the County argues that, because Norris did not disclose = information=20 tending to directly or circumstantially prove the substance of an=20 allegation of abuse, she did not fall within the protection of = Section=20 261.110. =E2=80=9CShe simply told her supervisor that she should = hear a juvenile=E2=80=99s=20 story first hand and the juvenile then self-reported the alleged = abuse=20 directly to the supervisor.=E2=80=9D The County also contends that = there is no=20 evidence showing a causal connection between the making of any = report of=20 child abuse and the termination of Norris=E2=80=99s = employment.

<= /SPAN>It=20 is undisputed that no report, however the term is defined, was = generated=20 before Norris confronted G.G. about the incident, which had taken = place=20 one week before. It is also undisputed that, after Norris spoke = with G.G.=20 and later called Watson over to hear the first-hand account of the = incident, several reports were created. The purpose of the statute = is to=20 protect children from abuse by protecting an employee who reports = child=20 abuse; therefore, a liberal interpretation of the report = requirement is=20 necessary in order to achieve the purpose of the statute. See = Tex.=20 Dep=E2=80=99t of Transp. v. Needham, 82 S.W.3d 314, 318 (Tex. = 2002) (in=20 construing statute, objective is to determine and give effect to=20 Legislature=E2=80=99s intent). Furthermore, because Norris was = fired within 61=20 days after she made a report in good faith, the County had the = burden of=20 rebutting the presumption that Norris was terminated for reporting = abuse.=20 See Tex. Fam. Code = Ann. =C2=A7 261.110(i). To prevail on a directed verdict, = the County=20 must have proven, as a matter of law, that it conclusively = established=20 that Norris was fired for non-retaliatory reasons. It failed to do = so. In=20 fact, Valle, who reported Norris for her refusal to comply with=20 administrative directives, was asked at trial if Norris was fired = for=20 reporting abuse, and he testified, =E2=80=9CI don=E2=80=99t know, = sir.=E2=80=9D

<= /SPAN>We=20 hold that the evidence supplies some reasonable basis for = differing=20 conclusions by reasonable minds as to the existence of a vital = fact and=20 thus presents legally sufficient evidence to defeat a motion for = directed=20 verdict. See Chapman, 118 S.W.3d at 751.

<= /SPAN> We=20 overrule issue one.

JNOV and Legal=20 Sufficiency

<= /SPAN>In=20 issues two and three, the County argues that (1) there was legally = insufficient evidence to support the jury=E2=80=99s finding that = Norris=E2=80=99s report=20 of abuse was made in good faith and was a cause of the = County=E2=80=99s decision=20 to terminate her when it did and (2) the trial court erred in = denying the=20 County=E2=80=99s motion for judgment notwithstanding the verdict. =

= The=20 County filed a Motion to Disregard Jury Findings or Alternatively = Motion=20 for JNOV. In the motions, the County contends that there was no=20 evidentiary support for the jury=E2=80=99s answers in the charge = because there was=20 =E2=80=9Cno probative evidence that Cheryl Norris made any report = in accordance=20 with Chapter 261 of the Texas Family Code.=E2=80=9D The County = further argues=20 that, because the pleadings allege that Norris =E2=80=9Cattempted to make a report and = initiate an investigation of = child abuse=20 as opposed to making a report,=E2=80=9D the question should not = have been=20 submitted to the jury.

= The=20 County did not ask for a definition of =E2=80=9Creport=E2=80=9D to = be included in the=20 charge, and it did not ask for a separate question regarding = whether=20 Norris actually made a report as a predicate to the liability = question. We=20 must assume that, because the jury affirmatively answered the = liability=20 question, it made an implied finding that Norris filed a=20 =E2=80=9Creport.=E2=80=9D

= The=20 parties agree on the basic facts of the case. They simply disagree = whether=20 Norris=E2=80=99s motioning to Watson and G.G.=E2=80=99s recitation = of the events to Watson=20 constituted =E2=80=9Ca report of abuse.=E2=80=9D Absent an = instruction in the charge=20 defining the term, we cannot usurp its implied finding. The County = also=20 contends that there =E2=80=9Cis no evidence showing a causal = connection between=20 the making of any report of child abuse and the termination of the = Plaintiff=E2=80=99s employment.=E2=80=9D 3DFootnote

<= /SPAN>Norris = unequivocally=20 testified that she reported or caused to be reported the incident = of=20 abuse. The jury refused to find =E2=80=9Cfrom a = preponderance of the=20 evidence that Harris County would have terminated Cheryl Norris = when it=20 did even if she had not made a report of a possible violation of = law.=E2=80=9D=20 Norris was not required to prove that the filing of the report was = the=20 only cause of her termination. In fact, she simply needed to = defeat the=20 above-quoted statement. Once she = created a=20 fact question, it was the County=E2=80=99s burden to prove from a = preponderance of=20 the evidence that Norris=E2=80=99s alleged insubordination was the = sole cause of=20 her termination. It failed to do so.

<= /SPAN>In=20 the statement she prepared and filed at the time of the incident, = Norris=20 relayed the events surrounding her alleged insubordination. She = stated=20 that Valle demanded that she give him the statements that she had = taken=20 from the juveniles who witnessed the incident with G.G. She stated = that=20 she responded,

=E2=80=9CSir, as soon as we call = [Watson] or copy them,=20 I=E2=80=99ll give them to you.=E2=80=9D He said, =E2=80=9CSo = you=E2=80=99re refusing me, a Supervisor.=E2=80=9D I=20 said, =E2=80=9CSir, I=E2=80=99m not refusing, I=E2=80=99m asking = if we can call my Supervisor=20 before we take any action.=E2=80=9D He said I=E2=80=99m going to = ask you again,=E2=80=9D and did.=20 I repeated my request to call [Watson] first please. He said, = =E2=80=9COkay, so=20 you=E2=80=99ve refused a Supervisor = twice.=E2=80=9D

Norris=E2=80=99s statement goes on to = reflect that, after=20 Valle left the room, Norris attempted to page Watson, and then = Norris=20 attempted to make the copies of the statements. The copier was on = =E2=80=9Cenergy=20 saver mode,=E2=80=9D so she could not make copies immediately. = Valle returned=20 while Norris was waiting to make copies, and Watson responded to = the page.=20 While Valle was listening to her conversation with Watson, Norris = relayed=20 over the phone the events of the evening. Watson =E2=80=9Csounded = surprised=E2=80=9D and=20 told Norris =E2=80=9Cto tell Valle that she had instructed = [Norris] to get the=20 kids=E2=80=99 statements.=E2=80=9D Valle refused to talk with = Watson on a speaker phone.=20 Norris made copies of the statements, gave them to Valle, and left = the=20 building. When specifically asked at trial, Valle was uncertain if = Norris=20 was fired for reporting abuse. Norris contends that she was fired = for=20 reporting the abuse and that the alleged = =E2=80=9Cinsubordination=E2=80=9D was the result=20 of an easily explained attempt to contact her supervisor while = conducting=20 an investigation. = We=20 hold that there is more than a scintilla of evidence to support = the=20 challenged finding and, accordingly, overrule issues two and = three. See=20 Formosa Plastics Corp. USA, 960 S.W.2d at = 48.

Reinstatement

= In=20 her sole cross point, Norris contends that the trial court erred = =E2=80=9Cin=20 denying her reinstatement to her former position or a comparable = position=20 in terms of compensation, benefits, and other conditions of = employment and=20 reinstatement of fringe benefits and seniority rights lost because = of her=20 wrongful termination.=E2=80=9D

= Texas=20 Rule of Appellate Procedure 25.1 (c) requires that a party = =E2=80=9Cwho seeks to=20 alter the trial court=E2=80=99s judgment or appealable order must = file a notice of=20 appeal.=E2=80=9D Tex. R. = App. P.=20 25.1 (c); Helton v. Railroad, Comm=E2=80=99n of Texas, 126 = S.W.3d 111, 119=20 (Tex. App.=E2=80=94Houston [1st Dist.] 2003, pet. denied). = Harris County = filed its=20 notice of appeal on October 13, 2004, and Norris=E2=80=99s notice = of appeal was=20 due within 14 days thereafter. See Tex. R. App. P. 26.1(d). = Norris=E2=80=99s=20 notice of appeal was not filed until December 13, 2004. = Accordingly, we=20 dismiss her appeal for being untimely filed.

ConclusionWe affirm the = trial court=E2=80=99s=20 judgment.

&= nbsp; &n= bsp; &nb= sp; &nbs= p; = ; George=20 C. Hanks, Jr.

&= nbsp; &n= bsp; &nb= sp; &nbs= p; = ; Justice

Panel consists of Justices Taft, Keyes, = and=20 Hanks.

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FONT-SIZE: 10pt; VERTICAL-ALIGN: top; COLOR: white; = FONT-FAMILY: Tahoma, Arial, Helvetica, sans-serif; BACKGROUND-COLOR: red } .buttonUnused { PADDING-RIGHT: 1pt; PADDING-LEFT: 1pt; FONT-WEIGHT: normal; FONT-SIZE: = 9pt; PADDING-BOTTOM: 1pt; MARGIN: 1pt; COLOR: #fff5d7; PADDING-TOP: 1pt; = BACKGROUND-COLOR: #576a9d; font-face: Tahoma, Arial, Helvetica, = sans-serif } .buttonTanUnused { PADDING-RIGHT: 1pt; PADDING-LEFT: 1pt; FONT-WEIGHT: normal; FONT-SIZE: = 9pt; PADDING-BOTTOM: 1pt; MARGIN: 1pt; COLOR: #576a9d; PADDING-TOP: 1pt; = BACKGROUND-COLOR: #fff5d7; font-face: Tahoma, Arial, Helvetica, = sans-serif } .TextLargeBlue { FONT-WEIGHT: bold; FONT-SIZE: 12pt; COLOR: #000099; LINE-HEIGHT: = normal; FONT-STYLE: normal; FONT-FAMILY: Tahoma, Arial, Helvetica, = sans-serif; TEXT-ALIGN: left } .DocketHeaderTitle { FONT-WEIGHT: bold; FONT-SIZE: 14pt; COLOR: black; LINE-HEIGHT: normal; = FONT-FAMILY: Tahoma, Arial, ' Helvetica', sans-serif; TEXT-ALIGN: center } .TextLargeBlack { FONT-WEIGHT: bold; FONT-SIZE: 11pt; COLOR: black; LINE-HEIGHT: normal; = FONT-STYLE: normal; FONT-FAMILY: Tahoma, Arial, Helvetica, sans-serif; = TEXT-ALIGN: left } .TextLargeBlackcenter { FONT-WEIGHT: bold; FONT-SIZE: 11pt; COLOR: black; LINE-HEIGHT: normal; = FONT-STYLE: normal; FONT-FAMILY: Tahoma, Arial, Helvetica, sans-serif; = TEXT-ALIGN: center } .TextBlue { FONT-WEIGHT: normal; FONT-SIZE: 10pt; COLOR: #000099; LINE-HEIGHT: = normal; FONT-FAMILY: Tahoma, Arial, Helvetica, sans-serif } A.TextBlue { FONT-WEIGHT: normal; FONT-SIZE: 10pt; COLOR: #000099; LINE-HEIGHT: = normal; FONT-FAMILY: Tahoma, Arial, Helvetica, sans-serif; = TEXT-DECORATION: none } .TextRed { FONT-WEIGHT: normal; FONT-SIZE: 12pt; COLOR: red; LINE-HEIGHT: normal; = FONT-FAMILY: Tahoma, Arial, Helvetica, sans-serif } .TextHidenGray { FONT-SIZE: 0pt; COLOR: #ebebe1; LINE-HEIGHT: normal; FONT-FAMILY: = Tahoma, Arial, Helvetica, sans-serif; TEXT-ALIGN: left } .Time { FONT-WEIGHT: bold; FONT-SIZE: 10px; COLOR: red; LINE-HEIGHT: 4em; = FONT-FAMILY: Arial, Helvetica, sans-serif; TEXT-ALIGN: center } ------=_NextPart_000_000D_01C7E033.47A702F0--