Preview
NO. 2006-02596
9.22
TROY PERRY, § IN THE DISTRICT COURT OF
Plaintiff,
a =
2
Vv
HARRIS COUNTY, T E X & $ FN
ALIEF INDEPENDENT SCHOOL ap L,
DISTRICT, DAN TURNER, and
u
HENRY BONAPARTE, =
Defendants. § 215™ JUDICIAL DISTRICT. - “
PLAINTIFF TROY PERRY’S RESPONSE TO DEFENDANTS’ TRADITIONAL
SUMMARY JUDGMENT MOTION AS TO PLAINTIFF’S WHISTLEBLOWER
AND INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS CLAIMS
AND NO EVIDENCE MOTION FOR SUMMARY JUDGMENT
Plaintiff Troy Perry (“Perry”) files this response to Defendants Alief Independent School
District (“AISD”), Dan Turner (“Turner”) and Henry Bonaparte’s (“Bonaparte”) (collectively
“Defendants”) Traditional Summary Judgment Motion as to Plaintiff's Whistleblower and
Intentional Infliction of Emotional Distress Claims and No Evidence Motion for Summary Judgment
(the “Motion”), and would respectfully show the court as follows:
I
INTRODUCTION
On March 6, 2007, Defendants filed a motion for partial summary judgment relating to
Perry’s 42 U.S.C. § 1983 (“Section 1983"), slander, and intentional infliction of emotional distress
causes of action (the “Partial Motion”). Perry filed his response to the Partial Motion on March 28,
2007. Defendants’ Partial Motion is set for hearing on the same day as this Motion, and there are
several related issues between the Partial Motion and this Motion. Accordingly, pursuant to TEX.
R. Civ. P. 58, Perry herein adopts by reference his response to Defendants’ Partial Motion and all
of his summary judgment evidence attached thereto. Similarly, to the extent this response provides
additional support to Perry’s response to Defendants’ Partial Motion, Perry offers this response as
1
RECORDER'S:MEMORANDUM
This instrumentis of poor quality
at the time of imaging
a supplement thereto.
In addition, on June 1, 2007, Perry filed his Seventh Amended Petition. As shown therein,
Perry has voluntarily omitted and non-suited his intentional infliction of emotional distress claims
against Turner and Bonaparte.
Further, contrary to the assertion in Defendants’ reply to Perry’s response to the Partial
Motion, Perry pleaded an additional cause of action arising under Section 1983 in his Sixth
Amended Petition. Perry has re-pleaded that cause of action in his Seventh Amended Petition. With
the exception of Defendants’ argument that Perry was required to exhaust his Section 1983 claims
and that he did not do so, Perry’s new Section 1983 cause of action is not subject to the Partial
Motion or this Motion.
Finally, Perry has previously cited to the recent Texas Supreme Court decision in County of
Dallas v, Wiland. That opinion is now published in the official reports at 216 S.W.3d 344.
IL.
JE N: DEFEND, * SUMM, Y JUDGMENT EVIDE!
Perry generally objects to all statements of fact alleged in Defendants’ Motion that are not
supported by competent summary judgment evidence attached thereto. There are several statements
of fact alleged in Defendants’ Motion that are wholly unsupported by competent, summary judgment
evidence. Accordingly, Perry requests the Court disregard the following unsupported facts stated
in Defendants’ Motion:
. “This case involves one disgruntled, former at-will employee suing his former
employer, a schoo} District, and his supervisors after being fired for insubordinatio:
and failure to comply with District procedures and directives.” See the Motion, p.
1
“Plaintiff was not recommended for termination until November 1, 2005.” See id.,
pp. 6-7.
“This information was taken into consideration by Human Resources and the
District’s attorneys when making a determination into how to proceed with Plaintiff
2
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and his employment. Because it seemed Plaintiff was not improving as far as his
attitude with others and in following the chain of command within the police
department, despite prior written warnings as to both behaviors, it was determined
that Plaintiff, as an at-will employee, would be terminated.” See id., p.10.
Plaintiff was “spreading rumors about gang activity that is not based on reliable
information . . . [which] only works to send the public into a needless frenzy.” See
id., p. 12. “Again, Plaintiff is referring to baseless, unfounded rumor spread by him
oe .
“The District’s interest, which would include being apprised and aware of all
potential issues within its borders known to its employces, does not interfere with
any Constitutional right of Plaintiff to speak freely. The District, in allegedly
curtailing Plaintiff's speech, merely required that the District and Plaintiff's
supervisors be notified of such alleged gang activity prior to a mass notification of
the public outside the District. This was required so that the District might
adequately respond to any safety issues and questions posed by the understandably
panicked students, parents and public.” /d., p. 13.
Additionally, it is undisputed that Perry was a police officer. As a police officer, any
complaints against him had to be in writing and signed by the person making the complaint;! no
disciplinary action could be taken against him until and unless he was given a signed copy of the
complaint; and Perry was not to be terminated unless the complaint was investigated and there was
evidence to prove the allegations (these requirements are referred to hereinafter as the “Standard”).
See Guthery v. Taylor, 112 8.W.3d 715 (Tex. App. Houston [14" Dist.] 2003, no pet.); Fudge v.
Haggar, 621 S.W.2d 196 (Tex. Civ. App.— Texarkana 1981, writ ref'd n.r.e.). Perry was told there
were complaints against him and that he was being terminated based on those complaints. However,
when Perry asked to see those complaints, Defendants denied Perry his right to see them. Turner
has subsequently testified that there is not one objective piece of evidence to support any of the
1
TEX. GOV'T CODE §§ 614.022- 614.023, which is adopted as AISD's official policy, provides that a complaint
against a police officer must be in writing and signed by the person making the complaint; no disciplinary action shall
be taken against the officer unless he is given a copy of the complaint beforehand; and the officer may not be terminated
based upon the subject matter of the complaint unless the complaint is investigated and there is evidence to prove the
allegation.
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alleged complaints, and Defendants have not produced any. See Turner’s Deposition, attached
hereto as Exhibit N, pp. 105-106, None of the alleged complaints against Perry, which were alleged
by Defendants to be the basis for his termination, meet the Standard.
Accordingly, the statements contained in Exhibit B to Defendants’ Motion fail to mcet the
Standard and should not be considered by this Court. In addition, Exhibit B is hearsay and
inadmissible to prove the truth of the matters asserted therein. Exhibit B to Defendants’ Motion
contains statements by Karen Meyer, William Britton and Wayne Cox, offered as proof that
“Plaintiff was not well-liked by his co-workers” and that “[fJellow officers expressed to Plaintiff's
supervisors that Plaintiff's attitude caused unrest in the department and was detrimental to the
morale and performance of the Alief I.S.D. police department.” Defendants claim these statements
support their right to terminate Perry. However, the statements in Exhibit B are not authenticated,
they are not in affidavit form, and they are not competent summary judgment evidence. They are
out of court statements and constitute inadmissible hearsay. Furthermore, the statements contained
in Exhibit B are hearsay upon hearsay. The bases for these statements are from facts gleaned from
fellow officers. Further, these statements do not allege the who, what, when, where and why of any
wrongdoing by Perry, and as such, are vague and conclusory. Ironically, theses statements are dated
November 1, 2005? and November 4, 2005, which, as shown below, were made just days after
Defendants learmed Perry reported criminal conduct of Turner and Bonaparte to the Harris County
District Attorney’s Office.
Exhibit C to Defendants’ Motion is also hearsay to the extent it is offered as proof that AISD
terminated Perry for non-retaliatory reasons, and that the statements contained therein “continued
2
The two statements dated November 1, 2005 appear to be written in the exact same format and addressed to
the exact same people.
oo oy
to be an issue throughout Plaintiff's employment with Alief LS.D.” In addition, Defendants
mischaracterize this evidence and draw impermissible conclusions that are unsupported by other
facts or any affidavits attached to Defendants’ Motion.
Exhibits D and G to Defendants’ Motion are also hearsay. Exhibits D and G are authored
by Bonaparte, who has twice asserted his Fifth Amendment rights and refuses to testify in this case.
Because Bonaparte is not available for cross-examination regarding the statements he made in
Exhibits D and G, these exhibits constitutes inadmissible hearsay and should not be considered by
the Court for any of Defendants’ purposes.
Exhibit E to Defendants’ Motion is a memo authored by Tumer in April 2002 alleged to be
the procedure for AISD officers regarding reporting criminal activity to the Harris County District
Attorney’s Office. This exhibit is also hearsay. There is no affidavit authenticating this document
or showing that Perry received this memo. In fact, Perry’s employment with AISD did not begin
until 2004. Further, Turner admits in his deposition that this is a procedure for which there is
nothing in writing. See Turner’s Deposition, attached hereto as Exhibit N, pp. 41-46.
Exhibit I to Defendants’ Motion is a memo from Tumer to Benitez regarding Exhibit G to
Defendants’ Motion, the memo from Bonaparte to Perry. Because Exhibit G is hearsay, Exhibit I
is hearsay built upon hearsay. Turner is conveying to Benitez information he obtained from
Bonaparte. In addition, the date on Exhibit I is November 1, 2005. It should be no surprise that this
is the same date as the statements contained in Exhibit B. In other words, as shown herein,
Defendants own summary judgment exhibits are evidence that Defendants retaliated against Perry.
IIT.
SUMMARY JUDGMENT EVIDENCE
Perry incorporates by reference the following summary judgment evidence, which was
previously attached to his response to Defendants’ Partial Motion:
Exhibit A Affidavit of Troy L. Perry
Exhibit B AISD Policy DGBA (Local)
Exhibit C AISD Policy DGBA (Exhibit)
Exhibit D Defendant Alief Independent School District’s Objections
and Responses to Plaintiff's Second Request for Production
of Documents
Exhibit E AISD Policy CKE (Legal)
Exhibit F Letter to Attomey General and Attorney General Opinion
Exhibit G Email from Henry Bonaparte to Troy Perry on December 7,
2004
Exhibit H Deposition of Dr. Rose Benitez taken on March 5, 2007
Exhibit I Texas Workforce Commission Decision
Exhibit J Emails dated May 3 — May 4, 2005
Exhibit K Deposition of Troy Perry taken on August 25, 2006
Exhibit L = Affidavit of Michael A. Ackal, III
In addition, Perry submits the following summary judgment evidence attached hereto and
incorporated herein for all purposes:
Exhibit M = Deposition of Dan Turer taken on January 22, 2007
Exhibit N Deposition of Dan Turner taken on May 23, 2007
Exhibit O Deposition of Henry Bonaparte taken on January 22, 2007
Exhibit P Deposition of Henry Bonaparte taken on May 23, 2007
Exhibit Q Affidavit of Troy L. Perry
ExhibitR Deposition and Expert Report of Jeffery Compton
Exhibit S Growth Plan and Reassignment
Exhibit T Affidavit of Michael A. Ackal, III
Iv.
ARGUMENT.
Defendants have filed a combined traditional and no-evidence motion for summary judgment
pursuant
to TEX. R. Civ. P. 166a(I). To defeat Defendants’ Motion, Perry “is not required to marshal
{his} proof; [his] response need only point out evidence that raises a fact issue on the challenged
elements.” Notes & Comments to Rule 166a(I); Saenz v. Southern Un. Gas Co., 999 S.W.2d 490,
493-94 (Tex. App. — El Paso 1999, pet. denied).
A. Government Code Claims
A Whistleblower claim under TEX. Gov’T CobDE Chapter 554 requires proof of the following
elements
1 The plaintiff was a public employee;
2 The plaintiff made a good-faith report that his employer or another public employee
violated the law;
The plaintiff's report was to an appropriate law enforcement authority; and
The plaintiff was terminated, was suspended or suffered an adverse personnel action
because of the report,
See TEX. Gov’T CODE § 554.001-009.
Defendants argue that Perry has no evidence regarding elements 2, 3, and 4 set forth above.
As shown below, there is a genuine issue of material fact on each of the challenged elements relating
to Perry’s Whistleblower claim, and therefore, Defendants’ Motion should be denied regarding this
cause of action.
1 Perry made an official, formal report regarding the conduct of Turner and
Bonaparte to the Harris County District Attorney’s Office on October 18, 2005.
The following evidence raises a genuine issue of material fact on this element:
. Perry officially reported illegal conduct of Turner and Bonaparte, regarding the
destruction of a traffic citation he had written to Jan Williams, to the Harris County
.
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District Attorney’s Office on October 18, 2005. See Exhibits Q; K, pp. 72-75.
2. The Harris County District Aitorncy’s Office is an “appropriate law
enforcement authority.”
The Texas Whistleblower Act prohibits a state or local governmental entity from taking
adverse personnel action against “a public employee who in good faith reports a violation of law by
the employing governmental entity or another public employce to an appropriate law enforcement
authority.” TEX. GOV'T CODE§ 554.002(a). Section 554.002 of the Whistleblower Act provides that
areport is made to an appropriate law enforcement authority if the authority is part ofa state or local
governmental entity or the federal government that the employce in good faith believes is authorized
to (1) regulate under or enforce the law alleged to be violated in the report; or (2) investigate or
prosecute a violation of criminal law. The Harris County District Attorney’s Office constitutes such
an entity.
3. Perry’s termination was caused by his report to the Harris County District
Attorney’s Office.
Pursuant to Section 554.004(a) of the Government Code, a public employee has the burden
of proof on causation, except that if the suspension or termination of, or adverse personnel action
against, a public employee occurs not later than the 90th day after the date on which the employee
reports a violation of law, the suspension, termination, or adverse personnel action is presumed,
subject to rebuttal, to be because the employee made the report.
Perry officially reported the conduct of Tuer and Bonaparte (regarding the destruction of
the traffic ticket Perry issued) to the Public Integrity Unit of the Harris County District Attomey’s
Office, along with evidence thereof, on October 18, 2005. See Exhibits Q; K, pp. 72-75. At the
very least, by October 27, 2005, Defendants knew Perry had officially reported Tumer and
Bonaparte’s conduct to the Harris County District Attomey’s Office because Perry filed a grievance
a ry
on that day regarding the same. See Exhibit A-6; Exhibit H, p. 157. In addition, Perry again
informed Bonaparte on November 1, 2005 that he had reported Turner and Bonaparte’s conduct to
the Harris County District Attorney’s Office. See Exhibit Q-2. A few days later, on November 11,
2005, Perry was terminated. See Exhibit A. Accordingly, the Section 554.004 presumption applies,
and Defendants have offered no competent summary judgement evidence to rebut it.
Notwithstanding the presumption, to show causation, a public employee must demonstrate
that after he or she reported a violation of the Jaw in good faith to an appropriate law enforcement
authority, the employee suffered discriminatory conduct by his or her employer that would not have
occurred when it did if the employee had not reported the illegal conduct. City of Fort Worth v.
Zimlich, 29 S.W.3d 62, 67 (Tex. 2000). The following evidence raised a genuine issue of material
fact on this element:
. Perry officially reported the illegal conduct of Turner and Bonaparte to the Harris
County District Attomey’s Office on October 18, 2005. See Exhibits Q; K, pp. 72-
75.
On October 26, 2005, Bonaparte told Perry that there were no complaints against
him and no problems. See Exhibits A; H, pp. 161-165.
On October 27, 2005, Defendants knew Perry had officially reported Turner and
Bonaparte’s conduct to the Harris County District Attomey’s Office because Perry
filed a grievance on that day regarding the same. See Exhibit A-6; Exhibit H, p. 157.
On November 1, 2005, Perry again informed Bonaparte that he had reported Turner
and Bonaparte’s conduct to the Harris County District Attorney’s Office. See
Exhibit Q-2.
Tronically, on the same day, and again on November 4, Defendants allege that certain
AISD police officers made the statements contained in Exhibit B attached to
Defendants’ Motion.
A few days later, on November 11, 2005, Perry was terminated. See Exhibit A.
There is no evidence to support the allegations contained in Benitez’s November 17,
2005 termination Ictter to Perry. See Exhibit H, pp. 134-139.
There is not one objective piece of evidence to support the proposition that Perry had
inappropriate interaction with students. See Exhibit N, pp. 105-106.
9
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. Bonaparte has continued to assert his rights under the Fifth Amendment. See
Exhibits O & P.
Additionally, Government Code Section 554.004(b) provides an affirmative defense if 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 the Government Code of a violation of
law. Defendants fail in establishing their summary judgment burden on this issuc. Further, to the
extent Defendants could establish a prima facie defense, Perry’s summary judgment evidence
mentioned in the preceding paragraph creates a genuine issue of material fact precluding summary
judgment regarding the same.
B. Section 1983: First Amendment Claims
Anemployee's First Amendment retaliation claim under 42 U.S.C. § 1983 has four elements:
(1) an adverse employment action; (2) speech involving a matter of public concern; (3) the
employee's interest in commenting on matters of public concern outweighs the employer's interest
in efficiency; and (4) the speech must have motivated the adverse employment action. Scott v.
Godwin, 147 8.W.3d 609, 616 (Tex. App.— Corpus Christi 2004, no pet.).
Defendants argue that Perry has no evidence regarding elements 2, 3, and 4 set forth above.
As shown below, there is a genuine issue of material fact on each of the challenged elements relating
to Perry’s First Amendment claims, and therefore, Defendants’ Motion should be denied regarding
this cause of action.
1. Perry engaged in protected speech under the First Amendment.
Defendants argue that Perry has not provided evidence, as a matter of law, that his speech
was a matter of public concern. Such evidence was attached to Perry’s response to Defendants’
Partial Motion, and as such, Perry adopts herein his previous response and arguments regarding this
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issue. See also, Exhibits A and Q. Further, Perry has cited numerous state and federal statutes,
including those cited in his Seventh Amended Petition, that address the public importance of gang-
related issues. See also, Exhibit K, pp. 126-128; 144-146. In addition, Benitez admits gang-related
communications are a very important public concern. See Exhibit H, pp. 26-27.
Further, Perry made an official report regarding illegal conduct of Turner and Bonaparte to
the Harris County District Attorney’s Office on October 18, 2005. See Exhibits A and Q. It is
axiomatic that reporting conduct that violates a criminal law is a matter of public concern.
2. Although Perry has provided evidence that his interest in commenting on
matters of public concern outweighs an interest AISD has in efficiency, AISD
had not produced any evidence that would allow the Court to conduct such a
balancing test.
The following evidence raises a genuine issue of material fact on this element:
. Perry made gang-related communications to various local, state and federal law
enforcement officials who were investigating gang-related crimes, including postings
on the CLEO website. See Exhibits A & Q.
Perry made these communications as a concerned citizen and in the interest of police
officer safety. See id.
Congress and the state of Texas have enacted several laws aimed at combating gang-
violence, See 18 U.S.C. §§ 521, 922, 924, 1513(¢), 1959, 1962 and 21 U.S.C. §§ 802,
841(a)(1), 846, 860. See also, Exhibit A.
Notwithstanding that Perry has raised a fact issue regarding whether communications about
gangs are of public concern, Defendants offer no summary judgment evidence that would enable
the Court to conduct a balancing test between AISD and Perry’s interests. Until they do, this Court
does not have any bases upon which to conduct such an analysis.
3. Plaintiff's protected speech motivated his termination.
The following evidence raises a genuine issue of material fact on this element:
Perry officially reported the illegal conduct of Turner and Bonaparte to the Harris
County District Attorney’s Office on October 18, 2005. See Exhibits Q; K, pp. 72-
73.
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On October 26, 2005, Bonaparte told Perry that there were no complaints against
him and no problems. See Exhibits A; H, pp. 161-165.
On October 27, 2005, Defendants knew Perry had officially reported Turner and
Bonaparte’s conduct to the Harris County District Attorney’s Office because Perry
filed a grievance on that day regarding the same. See Exhibit A-6; Exhibit H, p. 157.
On November 1, 2005, Perry again informed Bonaparte that he had reported Turner
and Bonaparte’s conduct to the Harris County District Attomey’s Office. See
Exhibit Q-2.
Ironically, on the same day, and again on November 4, Defendants allege that certain
AISD police officers made the statements contained in Exhibit B attached to
Defendants’ Motion.
A few days later, on November 11, 2005, Perry was terminated. See Exhibit A.
There is no evidence to support the allegations contained in Benitez’s November 17,
2005 termination letter to Perry. See Exhibit H, pp. 134-139.
There is not one objective picce of evidence to support the proposition that Perry had
inappropriate interaction with students, See Exhibit N, p. 105-106.
Bonaparte has continued to assert his rights under the Fifth Amendment. See
Exhibits O & P.
On May 4, 2005, Bonaparte sent Perry an email stating that his exportation of gang-
related information regarding activities in and around the District were causing a
number of problems, particularly that the Superintendent was upset that such
information was posted on CLEO. See Exhibits H-12 & H-15.
In June 2005, the AISD administration wanted to fire Perry. See Exhibit H, pp. 63-
65.
On June 13, 2005, Perry received a review that did not indicate in any way that AISD
wanted to fire him. See Exhibits N, pp. 68-73; N-23.
On July15, 2005, Perry was removed from his position as gang officer and placed on
patrol duty, and such reasons for doing so were unsubstantiated. See Exhibit K, pp.
177-178; Exhibits A; A-1; Exhibit N, pp. 73-74; Exhibit S.
Cc. Section 1983: Fourteenth Amendment Claims
The elements of a Section 1983 cause of action for violation of the Fourteenth Amendment
12
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are as follows:
1 The plaintiff was employed by a governmental agency;
2 The plaintiff was terminated from his employment;
3 The plaintiff had a Constitutionally protected interest;
4 Before his termination, the plaintiff was not afforded due process (substantively or
procedurally) for deprivation of that interest; and
5 As a result of the discharge, plaintiff suffered damages.
See e.g., Board of Regents v, Roth, 408 U.S, 564 (1972).
Defendants argue that Perry has no evidence regarding elements 3 and 4 set forth above.
As shown below, there is a genuine issue of material fact on each of the challenged elements relating
to Perry’s Fourteenth Amendment claims, and therefore, Defendants’ Motion should be denied
regarding this cause of action.
1 Perry has a Constitutionally protected property interest.
A determination of whether an entitlement to any liberty or property interest exists is
primarily a matter of state law. See American Manufacturer’s Mutual Insurance Co. v. Sullivan, 526
U.S. 40 (1999). As the Supreme Court in Roth explained:
To have a property interest in a benefit, a person clearly must have
more than an abstract need or desire for it. He must have more than
a unilateral expectation of it. He must, instead, have a legitimate
claim of entitlement to it. It is a purpose of the ancient institution of
property to protect those claims upon which people rely in their daily
lives, reliance that must not be arbitrarily undermined .. .
Property interests, of course, are not created by the Constitution,
rather they are created and their dimensions are defined by existing
rules or understandings that stem from an independent source such as
state law — rules or understandings that secure certain benefits and
that support claims of entitlement to those benefits.
408 U.S. at 577.
TEX. Gov’T CODE §§ 614.021-023 specifically secured such a benefit to Perry, who was a
13
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police officer. This issue has been addressed in Perry’s response to Defendants’ Partial Motion.
Accordingly, Perry herein adopts by reference the arguments and evidence contained in his response
to Defendants’ Partial Motion.
In addition, since filing his response to Defendants’ Partial Motion, Perry has deposed
Defendants Turner and Bonaparte again for the second time. Bonaparte continues to assert his Fifth
Amendment rights and refuses to give testimony in this case. See Exhibits O & P. Further, Turner
admits that Perry is entitled to the protections afforded police officers pursuant to the Government
Code, a policy which has also been expressly adopted by AISD. See Exhibit N, pp.103-106; Exhibit
E,
2 Perry has been denied procedural and substantive due process afforded by
Texas Government Sections 614.021-023.
This issue has been addressed in Perry’s response to Defendants’ Partial Motion.
Accordingly, Perry herein adopts by reference the arguments and evidence contained in his response
to Defendants’ Partial Motion. It is undisputed that AISD did not provide Perry written copies of
the alleged complaints made against him as he was entitled under the Texas Government Code. In
addition, Defendants did not conduct an investigation into the veracity of the alleged complaints,
and Bonaparte refuses to testify regarding the same. In essence, Perry was denied procedural due
process created under the Government Code.
In addition, the following evidence raises a genuine issue of material fact that Defendants’
actions were arbitrary and capricious, denying Perry his substantive rights created by the
Constitution and the Texas Government Code:
. There is not one objective piece of evidence to support the proposition that Perry had
inappropriate interaction with students. See Exhibit N, p. 105-106.
There is no evidence to support the allegations contained in Benitez’s November 17,
2005 letter to Perry. See Exhibit H, pp. 134-139.
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. When Perry specifically asked Benitez and Bonaparte to sce the complaints made
against him that were alleged to be the basis for his termination, Benitez and
Bonaparte refused to do so. See Exhibit H, pp. 131-134.
As of October 26, 2005, Bonaparte told Perry that there were no complaints against
him. See Exhibit Q,
Defamation
The elements of a cause of action for defamation are as follows:
1 The defendant published a statement of fact;
The statement referred to the plaintiff;
The statement was defamatory;
The statement was false; and
With regard to the truth of the statement, the defendant was (a) acting with actual
malice; (b) negligent; or © liable without regard to fault; and
6 The plaintiff suffered pecuniary injury (unless injury is presumed).
See Bentley v. Bunton, 94 8.W.3d 561, 579, 586, 590 (Tex. 2002), Leyendecker & Assocs. v.
Wechter, 683 S.W.2d 369, 374 (Tex. 1984).
Defendants argue that Perry has no evidence regarding elements 1, 4, 5 and 6 set forth above.
As shown below, there is a genuine issue of material fact on each of the challenged elements relating
to Perry’s defamation claim, and therefore, Defendants’ Motion should be denied regarding this
cause of action.
L Defendants Turner and Bonaparte published a statement of fact.
The following evidence raises a genuine issue of material fact on this element:
. Benitez testified that Turner told her that Perry acted inappropriately with students
on numerous occasions. See Exhibit H, pp. 120, 141-148, 163-165
Benitez testified that Bonaparte told her that Perry acted inappropriately with
students. See Exhibit H, pp. 120, 148, 163-165.
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Bonaparte has twice asserted his rights under the Fifth Amendment and refused to
answer any questions concerning this lawsuit. See Exhibits O & P.
In his Affidavit attached as exhibit M to Defendants’ Partial Motion, Turner admits
he reported to Human Resources that Perry acted inappropriately with students.
Nevertheless, Defendants argue that “[making] these alleged statements to cach other is not
a publication as it is to a person within the organization with an interest in the matter.” To be sure,
the Texas Supreme Court has held that in defamation cases, an employer has a conditional or
qualified privilege that attaches to communications made in the course of an investigation following
areport of employee wrongdoing. See Randall's Food Markets, Inc. v. Johnson, 891 S.W.2d 640,
646 (Tex. 1995). The privilege remains intact as long as communications pass only to persons
having an interest or duty in the matter to which the communications relate. See id, However, proof
that a statement was motivated by actual malice existing at the time of publication defeats the
privilege. See id. Further, “[t]o invoke the privilege on summary judgment, an employer must
conclusively establish that the allegedly defamatory statement was made with an absence of malice.”
Id,
Defendants have not offered any competent summary judgment evidence attached to their
Motion establishing a lack of malice. First, to the extent Defendants seek to use the Affidavit of
Bonaparte attached to their Partial Motion as Exhibit N, Perry reasserts his argument that such
affidavit constitutes an offensive use of the Fifth Amendment and should be struck. See Newsome
y. State Board of Insurance, 922 S.W.2d 274, 279 (Tex. App. — Austin 1996, writ denied).
Bonaparte asserted his Fifth Amendment rights and refused to answer questions at his first
deposition on January 22, 2007. See Exhibit O. Subsequently, he executed his Affidavit on March
2, 2007. Bonaparte then reasserted his Fifth Amendment rights and refused to answer questions at
his second deposition on May 23, 2007. See Exhibit P. Such use of the Fifth Amendment bars
Defendants from relying on Bonaparte’s Affidavit in support of this Motion and their Partial Motion.
Second, to the extent Defendants attempt to rely on Turner’s Affidavit attached to their
16
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Partial Motion as Exhibit M, Turner’s Affidavit meets a similar fate. On summary judgment in a
defamation case, a defendant’s affidavit will negate actual malice as a matter of law “only if [it is]
clear, positive, and direct, otherwise credible and free from contradictions and inconsistencies, and
able to be readily controverted.” See New Times, Inc. v. Isaacks, 146 S.W.3d 144, 164 (Tex. 2004).
Turner’s Affidavit attached to Defendants’ Partial Motion fails in all regards. Turner’s Affidavit
States:
I received reports from various administrators with the District that
Troy Perry’s behavior, with respect to his interactions with students,
parents, and faculty, was inappropriate. I used my judgment and
found these reports to be reliable and in the interest of Alief and its
students and faculty, I reported my findings as well as my
observations to Human Resources. This was done without malice.
As Police Captain at Alief, the circumstances arose where I was
required to make determinations as to the appropriateness of a
subordinate officer’s conduct. It sometimes became necessary, as in
the case of Troy Perry, to recommend and/or carry out disciplinary
measures. These included . . .a recommendation and/or provision of
my observations as to a recommendation of termination.
It is not my understanding that my issuance of disciplinary measures,
such as my . . . recommendation of termination . . . in any way
violates the Constitutional rights of any officers under my
supervision.
However, Turner’s deposition testimony completely contradicts his Affidavit. Turner testified that:
. There is not one objective piece of evidence to support the proposition that Perry had
inappropriate interaction with students. See Exhibit N, p. 105-106.
Turner had nothing to do with Perry’s termination; he did not write any
recommendations that Perry be terminated; and he did not meet with any AISD
representative regarding disciplining Perry. See Exhibit N, p. 17-18. Benitez
testified that Turner was part of the decision to terminate Perry. See Exhibit H, pp.
93-96.
Turner never saw Perry acting inappropriately with students. See Exhibit N, p. 31-
32.
17
a “
The facts supporting the statement that Perry had inappropriate interaction with
students did not come from Turner. See Exhibit N, p. 100.
There are no facts supporting the who, what, when and where of the statement that
Perry acted inappropriately with students. See Exhibit N, p. 105-106.
Clearly, Tumer’s Affidavit is not clear, positive or direct; is not credible or free from
contradictions and inconsistencies; and does not allege the who, what, when, where, and why of his
conclusory allegations, and thus, cannot by readily controverted. Tumer’s Affidavit contradicts his
sworn deposition testimony and does not conclusively establish that the defamatory statement was
made with an absence of malice.
2. With regard to the truth of the statements made, Turner and Bonaparte acted
with actual malice.
Notwithstanding Defendants’ failure to establish a lack of malice, Perry’s summary judgment
evidence raises a genuine issue of material fact that Turner and Bonaparte indeed acted with actual
malice. In the defamation context, “actual malice” requires proof that the defendant made a
statement with knowledge that is was false or with reckless disregard of whether it was truc or not.
See New Times, Inc., 146 S.W.3d at 162.
The following evidence raises a genuine issue of material fact regarding whether Turner and
Bonaparte acted with actual malice:
. Benitez testified that Turner told her that Perry acted inappropriately with students.
See Exhibit H, pp. 120, 141-148, 163-165
Benitez testified that Bonaparte told her that Perry acted inappropriately with
students. See Exhibit H, pp. 120, 148, 163-165.
Bonaparte has twice asserted his rights under the Fifth Amendment and refuses to
answer any questions concerning this lawsuit. See Exhibits O & P.
In his Affidavit attached as exhibit M to Defendants’ Partial Motion, Turner admits
he reported to Human Resources that Perry acted inappropriately with students.
18
a
Tumer testified that:
. There is not one objective piece of evidence to support the proposition that
Perry had inappropriate interaction with students, See Exhibit N, p. 105-106.
Tumer had nothing to do with Perry’s termination; he did not write any
recommendations that Perry be terminated; and he did not meet with any
AISD representative regarding disciplining Perry. See Exhibit N, p. 17-18
Benitez testified that Turner was part of the decision to terminate Perry. See
Exhibit H, pp. 93-96. .
Turner never saw Perry acting inappropriately with students. See Exhibit N,
p. 31-32.
The facts supporting the statement that Perry had inappropriate interaction
with students did not come from Turner. See Exhibit N, p. 100.
There are no facts supporting the who, what, when and where of the
statement that Perry acted inappropriately with students. See Exhibit N, p.
105-106.
Alternatively, Perry would show the Court that pursuant to element 5 above, Defendants are
liable without regard to fault. In defamation suits brought by private plaintiffs against non-media
defendants, defendants are liable without a showing of actual malice. “The publication of
defamatory matter, actionable per se, entitles the person defamed to compensation for the actual
injury done him without regard to the motive with which the publication was made and want of
actual intent to injure or defame furnishes no legal excuse . . . Proof of the publication of the false
injurious statement is sufficient without any necessity of showing a particular mental state, for one
is assumed to intend to make the statement that issues from his mouth or pen.” Peshak v. Greer, 13
S.W.3d 421, 426 (Tex. App.— Corpus Christi 2000, no pet.); see also Snead v. Redland Aggregates
Lid, 998 F.2d 1325, 1334 (5" Cir. 1993) (“Under Texas law, presumed damages are available in
cases of libel per se without any showing of fault on the part of the defendant.”),
As shown herein, Turner and Bonaparte made slanderous statements to Benitez that Perry
19
cn
ry
ey
had “inappropriate interaction with students and engaged in conduct detrimental to the AISD police
force.” After Turner and Bonaparte communicated this to Benitez, a written statement stating the
same was placed in Perry’s personnel file. These defamatory statements constitute slander per se
because, by way of these statements, Defendants falsely asserted malfeasance in Plaintiffs business,
profession or occupation as an AISD officer. See Bradbury v. Scott, 788 S.W.2d 31, 38 (Tex. App.—
Houston [1* Dist.] 1989, writ denied).
3. The statements made by Turner and Bonaparte was false.
The following evidence raises a genuine issue of material fact regarding whether Turner and
Bonaparte’s statements were false:
. Perry states that the statement is not true. He has not had inappropriate interaction
with students. See Exhibit A & Q.
There is not one objective piece of evidence to support the proposition that Perry had
inappropriate interaction with students. See Exhibit N, pp. 105-106.
4. Not only did Perry suffer pecuniary injury, but injury is presumed.
The following evidence raises a genuine issue of material fact regarding whether Perry
suffered pecuniary injury:
. It is undisputed that Perry was terminated from his employment with AISD. See
Exhibit A.
As shown herein, Perry was retaliated against for exercising Constitutionally
protected speech and for reporting the conduct of Tumer and Bonaparte to the Harris
County District Attoey’s Office. One of the vehicles used by Defendants to effect
their retaliation, and to create a ruse that their actions were justified, was the
defamatory statements made by Turner and Bonaparte that lead to Perry’s
termination. Perry suffered pecuniary injury as a result of his termination. See
Exhibit R.
However, Perry’s injury is nevertheless presumed under Texas law because the statements
made by Turmer and Bonaparte are defamation per se, and Defendants have not offered any evidence
20
oN x
to rebut such a presumption. See Bentley, 94 S.W.3d at 604 (“Our law presumes that statements that
are defamatory per se injure the victim's reputation and entitle him to recover general damages,
including damages for loss of reputation and mental anguish”); see also Snead, 998 F.2d at 1334;
Peshak, 13 S.W.3d at 426-427.
Vv.
ON! 1 ND PE ER
Pursuant to the arguments and evidence cited herein, the Court should deny Defendants’
Motion in its entirety.
Respectfully submitted,
LOOPER REED & McGRAW, P.C.
By
JameS L. Reed
State Bar Number 16679200
Michael A. Ackal, III
State Bar Number 24045367
1300 Post Oak Blvd., Suite 2000
Houston, Texas 77056
(713) 986-7000 Telephone
(713) 986-7100 Telecopier
ATTORNEYS FOR PLAINTIFF
21
CERTIFICATE OF SERVI E
Preview
NO. 2006-02596 9.22 TROY PERRY, § IN THE DISTRICT COURT OF Plaintiff, a = 2 Vv HARRIS COUNTY, T E X & $ FN ALIEF INDEPENDENT SCHOOL ap L, DISTRICT, DAN TURNER, and u HENRY BONAPARTE, = Defendants. § 215™ JUDICIAL DISTRICT. - “ PLAINTIFF TROY PERRY’S RESPONSE TO DEFENDANTS’ TRADITIONAL SUMMARY JUDGMENT MOTION AS TO PLAINTIFF’S WHISTLEBLOWER AND INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS CLAIMS AND NO EVIDENCE MOTION FOR SUMMARY JUDGMENT Plaintiff Troy Perry (“Perry”) files this response to Defendants Alief Independent School District (“AISD”), Dan Turner (“Turner”) and Henry Bonaparte’s (“Bonaparte”) (collectively “Defendants”) Traditional Summary Judgment Motion as to Plaintiff's Whistleblower and Intentional Infliction of Emotional Distress Claims and No Evidence Motion for Summary Judgment (the “Motion”), and would respectfully show the court as follows: I INTRODUCTION On March 6, 2007, Defendants filed a motion for partial summary judgment relating to Perry’s 42 U.S.C. § 1983 (“Section 1983"), slander, and intentional infliction of emotional distress causes of action (the “Partial Motion”). Perry filed his response to the Partial Motion on March 28, 2007. Defendants’ Partial Motion is set for hearing on the same day as this Motion, and there are several related issues between the Partial Motion and this Motion. Accordingly, pursuant to TEX. R. Civ. P. 58, Perry herein adopts by reference his response to Defendants’ Partial Motion and all of his summary judgment evidence attached thereto. Similarly, to the extent this response provides additional support to Perry’s response to Defendants’ Partial Motion, Perry offers this response as 1 RECORDER'S:MEMORANDUM This instrumentis of poor quality at the time of imaging a supplement thereto. In addition, on June 1, 2007, Perry filed his Seventh Amended Petition. As shown therein, Perry has voluntarily omitted and non-suited his intentional infliction of emotional distress claims against Turner and Bonaparte. Further, contrary to the assertion in Defendants’ reply to Perry’s response to the Partial Motion, Perry pleaded an additional cause of action arising under Section 1983 in his Sixth Amended Petition. Perry has re-pleaded that cause of action in his Seventh Amended Petition. With the exception of Defendants’ argument that Perry was required to exhaust his Section 1983 claims and that he did not do so, Perry’s new Section 1983 cause of action is not subject to the Partial Motion or this Motion. Finally, Perry has previously cited to the recent Texas Supreme Court decision in County of Dallas v, Wiland. That opinion is now published in the official reports at 216 S.W.3d 344. IL. JE N: DEFEND, * SUMM, Y JUDGMENT EVIDE! Perry generally objects to all statements of fact alleged in Defendants’ Motion that are not supported by competent summary judgment evidence attached thereto. There are several statements of fact alleged in Defendants’ Motion that are wholly unsupported by competent, summary judgment evidence. Accordingly, Perry requests the Court disregard the following unsupported facts stated in Defendants’ Motion: . “This case involves one disgruntled, former at-will employee suing his former employer, a schoo} District, and his supervisors after being fired for insubordinatio: and failure to comply with District procedures and directives.” See the Motion, p. 1 “Plaintiff was not recommended for termination until November 1, 2005.” See id., pp. 6-7. “This information was taken into consideration by Human Resources and the District’s attorneys when making a determination into how to proceed with Plaintiff 2 a ao and his employment. Because it seemed Plaintiff was not improving as far as his attitude with others and in following the chain of command within the police department, despite prior written warnings as to both behaviors, it was determined that Plaintiff, as an at-will employee, would be terminated.” See id., p.10. Plaintiff was “spreading rumors about gang activity that is not based on reliable information . . . [which] only works to send the public into a needless frenzy.” See id., p. 12. “Again, Plaintiff is referring to baseless, unfounded rumor spread by him oe . “The District’s interest, which would include being apprised and aware of all potential issues within its borders known to its employces, does not interfere with any Constitutional right of Plaintiff to speak freely. The District, in allegedly curtailing Plaintiff's speech, merely required that the District and Plaintiff's supervisors be notified of such alleged gang activity prior to a mass notification of the public outside the District. This was required so that the District might adequately respond to any safety issues and questions posed by the understandably panicked students, parents and public.” /d., p. 13. Additionally, it is undisputed that Perry was a police officer. As a police officer, any complaints against him had to be in writing and signed by the person making the complaint;! no disciplinary action could be taken against him until and unless he was given a signed copy of the complaint; and Perry was not to be terminated unless the complaint was investigated and there was evidence to prove the allegations (these requirements are referred to hereinafter as the “Standard”). See Guthery v. Taylor, 112 8.W.3d 715 (Tex. App. Houston [14" Dist.] 2003, no pet.); Fudge v. Haggar, 621 S.W.2d 196 (Tex. Civ. App.— Texarkana 1981, writ ref'd n.r.e.). Perry was told there were complaints against him and that he was being terminated based on those complaints. However, when Perry asked to see those complaints, Defendants denied Perry his right to see them. Turner has subsequently testified that there is not one objective piece of evidence to support any of the 1 TEX. GOV'T CODE §§ 614.022- 614.023, which is adopted as AISD's official policy, provides that a complaint against a police officer must be in writing and signed by the person making the complaint; no disciplinary action shall be taken against the officer unless he is given a copy of the complaint beforehand; and the officer may not be terminated based upon the subject matter of the complaint unless the complaint is investigated and there is evidence to prove the allegation. co oy alleged complaints, and Defendants have not produced any. See Turner’s Deposition, attached hereto as Exhibit N, pp. 105-106, None of the alleged complaints against Perry, which were alleged by Defendants to be the basis for his termination, meet the Standard. Accordingly, the statements contained in Exhibit B to Defendants’ Motion fail to mcet the Standard and should not be considered by this Court. In addition, Exhibit B is hearsay and inadmissible to prove the truth of the matters asserted therein. Exhibit B to Defendants’ Motion contains statements by Karen Meyer, William Britton and Wayne Cox, offered as proof that “Plaintiff was not well-liked by his co-workers” and that “[fJellow officers expressed to Plaintiff's supervisors that Plaintiff's attitude caused unrest in the department and was detrimental to the morale and performance of the Alief I.S.D. police department.” Defendants claim these statements support their right to terminate Perry. However, the statements in Exhibit B are not authenticated, they are not in affidavit form, and they are not competent summary judgment evidence. They are out of court statements and constitute inadmissible hearsay. Furthermore, the statements contained in Exhibit B are hearsay upon hearsay. The bases for these statements are from facts gleaned from fellow officers. Further, these statements do not allege the who, what, when, where and why of any wrongdoing by Perry, and as such, are vague and conclusory. Ironically, theses statements are dated November 1, 2005? and November 4, 2005, which, as shown below, were made just days after Defendants learmed Perry reported criminal conduct of Turner and Bonaparte to the Harris County District Attorney’s Office. Exhibit C to Defendants’ Motion is also hearsay to the extent it is offered as proof that AISD terminated Perry for non-retaliatory reasons, and that the statements contained therein “continued 2 The two statements dated November 1, 2005 appear to be written in the exact same format and addressed to the exact same people. oo oy to be an issue throughout Plaintiff's employment with Alief LS.D.” In addition, Defendants mischaracterize this evidence and draw impermissible conclusions that are unsupported by other facts or any affidavits attached to Defendants’ Motion. Exhibits D and G to Defendants’ Motion are also hearsay. Exhibits D and G are authored by Bonaparte, who has twice asserted his Fifth Amendment rights and refuses to testify in this case. Because Bonaparte is not available for cross-examination regarding the statements he made in Exhibits D and G, these exhibits constitutes inadmissible hearsay and should not be considered by the Court for any of Defendants’ purposes. Exhibit E to Defendants’ Motion is a memo authored by Tumer in April 2002 alleged to be the procedure for AISD officers regarding reporting criminal activity to the Harris County District Attorney’s Office. This exhibit is also hearsay. There is no affidavit authenticating this document or showing that Perry received this memo. In fact, Perry’s employment with AISD did not begin until 2004. Further, Turner admits in his deposition that this is a procedure for which there is nothing in writing. See Turner’s Deposition, attached hereto as Exhibit N, pp. 41-46. Exhibit I to Defendants’ Motion is a memo from Tumer to Benitez regarding Exhibit G to Defendants’ Motion, the memo from Bonaparte to Perry. Because Exhibit G is hearsay, Exhibit I is hearsay built upon hearsay. Turner is conveying to Benitez information he obtained from Bonaparte. In addition, the date on Exhibit I is November 1, 2005. It should be no surprise that this is the same date as the statements contained in Exhibit B. In other words, as shown herein, Defendants own summary judgment exhibits are evidence that Defendants retaliated against Perry. IIT. SUMMARY JUDGMENT EVIDENCE Perry incorporates by reference the following summary judgment evidence, which was previously attached to his response to Defendants’ Partial Motion: Exhibit A Affidavit of Troy L. Perry Exhibit B AISD Policy DGBA (Local) Exhibit C AISD Policy DGBA (Exhibit) Exhibit D Defendant Alief Independent School District’s Objections and Responses to Plaintiff's Second Request for Production of Documents Exhibit E AISD Policy CKE (Legal) Exhibit F Letter to Attomey General and Attorney General Opinion Exhibit G Email from Henry Bonaparte to Troy Perry on December 7, 2004 Exhibit H Deposition of Dr. Rose Benitez taken on March 5, 2007 Exhibit I Texas Workforce Commission Decision Exhibit J Emails dated May 3 — May 4, 2005 Exhibit K Deposition of Troy Perry taken on August 25, 2006 Exhibit L = Affidavit of Michael A. Ackal, III In addition, Perry submits the following summary judgment evidence attached hereto and incorporated herein for all purposes: Exhibit M = Deposition of Dan Turer taken on January 22, 2007 Exhibit N Deposition of Dan Turner taken on May 23, 2007 Exhibit O Deposition of Henry Bonaparte taken on January 22, 2007 Exhibit P Deposition of Henry Bonaparte taken on May 23, 2007 Exhibit Q Affidavit of Troy L. Perry ExhibitR Deposition and Expert Report of Jeffery Compton Exhibit S Growth Plan and Reassignment Exhibit T Affidavit of Michael A. Ackal, III Iv. ARGUMENT. Defendants have filed a combined traditional and no-evidence motion for summary judgment pursuant to TEX. R. Civ. P. 166a(I). To defeat Defendants’ Motion, Perry “is not required to marshal {his} proof; [his] response need only point out evidence that raises a fact issue on the challenged elements.” Notes & Comments to Rule 166a(I); Saenz v. Southern Un. Gas Co., 999 S.W.2d 490, 493-94 (Tex. App. — El Paso 1999, pet. denied). A. Government Code Claims A Whistleblower claim under TEX. Gov’T CobDE Chapter 554 requires proof of the following elements 1 The plaintiff was a public employee; 2 The plaintiff made a good-faith report that his employer or another public employee violated the law; The plaintiff's report was to an appropriate law enforcement authority; and The plaintiff was terminated, was suspended or suffered an adverse personnel action because of the report, See TEX. Gov’T CODE § 554.001-009. Defendants argue that Perry has no evidence regarding elements 2, 3, and 4 set forth above. As shown below, there is a genuine issue of material fact on each of the challenged elements relating to Perry’s Whistleblower claim, and therefore, Defendants’ Motion should be denied regarding this cause of action. 1 Perry made an official, formal report regarding the conduct of Turner and Bonaparte to the Harris County District Attorney’s Office on October 18, 2005. The following evidence raises a genuine issue of material fact on this element: . Perry officially reported illegal conduct of Turner and Bonaparte, regarding the destruction of a traffic citation he had written to Jan Williams, to the Harris County . oN oy District Attorney’s Office on October 18, 2005. See Exhibits Q; K, pp. 72-75. 2. The Harris County District Aitorncy’s Office is an “appropriate law enforcement authority.” The Texas Whistleblower Act prohibits a state or local governmental entity from taking adverse personnel action against “a public employee who in good faith reports a violation of law by the employing governmental entity or another public employce to an appropriate law enforcement authority.” TEX. GOV'T CODE§ 554.002(a). Section 554.002 of the Whistleblower Act provides that areport is made to an appropriate law enforcement authority if the authority is part ofa state or local governmental entity or the federal government that the employce in good faith believes is authorized to (1) regulate under or enforce the law alleged to be violated in the report; or (2) investigate or prosecute a violation of criminal law. The Harris County District Attorney’s Office constitutes such an entity. 3. Perry’s termination was caused by his report to the Harris County District Attorney’s Office. Pursuant to Section 554.004(a) of the Government Code, a public employee has the burden of proof on causation, except that if the suspension or termination of, or adverse personnel action against, a public employee occurs not later than the 90th day after the date on which the employee reports a violation of law, the suspension, termination, or adverse personnel action is presumed, subject to rebuttal, to be because the employee made the report. Perry officially reported the conduct of Tuer and Bonaparte (regarding the destruction of the traffic ticket Perry issued) to the Public Integrity Unit of the Harris County District Attomey’s Office, along with evidence thereof, on October 18, 2005. See Exhibits Q; K, pp. 72-75. At the very least, by October 27, 2005, Defendants knew Perry had officially reported Tumer and Bonaparte’s conduct to the Harris County District Attomey’s Office because Perry filed a grievance a ry on that day regarding the same. See Exhibit A-6; Exhibit H, p. 157. In addition, Perry again informed Bonaparte on November 1, 2005 that he had reported Turner and Bonaparte’s conduct to the Harris County District Attorney’s Office. See Exhibit Q-2. A few days later, on November 11, 2005, Perry was terminated. See Exhibit A. Accordingly, the Section 554.004 presumption applies, and Defendants have offered no competent summary judgement evidence to rebut it. Notwithstanding the presumption, to show causation, a public employee must demonstrate that after he or she reported a violation of the Jaw in good faith to an appropriate law enforcement authority, the employee suffered discriminatory conduct by his or her employer that would not have occurred when it did if the employee had not reported the illegal conduct. City of Fort Worth v. Zimlich, 29 S.W.3d 62, 67 (Tex. 2000). The following evidence raised a genuine issue of material fact on this element: . Perry officially reported the illegal conduct of Turner and Bonaparte to the Harris County District Attomey’s Office on October 18, 2005. See Exhibits Q; K, pp. 72- 75. On October 26, 2005, Bonaparte told Perry that there were no complaints against him and no problems. See Exhibits A; H, pp. 161-165. On October 27, 2005, Defendants knew Perry had officially reported Turner and Bonaparte’s conduct to the Harris County District Attomey’s Office because Perry filed a grievance on that day regarding the same. See Exhibit A-6; Exhibit H, p. 157. On November 1, 2005, Perry again informed Bonaparte that he had reported Turner and Bonaparte’s conduct to the Harris County District Attorney’s Office. See Exhibit Q-2. Tronically, on the same day, and again on November 4, Defendants allege that certain AISD police officers made the statements contained in Exhibit B attached to Defendants’ Motion. A few days later, on November 11, 2005, Perry was terminated. See Exhibit A. There is no evidence to support the allegations contained in Benitez’s November 17, 2005 termination Ictter to Perry. See Exhibit H, pp. 134-139. There is not one objective piece of evidence to support the proposition that Perry had inappropriate interaction with students. See Exhibit N, pp. 105-106. 9 ry . Bonaparte has continued to assert his rights under the Fifth Amendment. See Exhibits O & P. Additionally, Government Code Section 554.004(b) provides an affirmative defense if 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 the Government Code of a violation of law. Defendants fail in establishing their summary judgment burden on this issuc. Further, to the extent Defendants could establish a prima facie defense, Perry’s summary judgment evidence mentioned in the preceding paragraph creates a genuine issue of material fact precluding summary judgment regarding the same. B. Section 1983: First Amendment Claims Anemployee's First Amendment retaliation claim under 42 U.S.C. § 1983 has four elements: (1) an adverse employment action; (2) speech involving a matter of public concern; (3) the employee's interest in commenting on matters of public concern outweighs the employer's interest in efficiency; and (4) the speech must have motivated the adverse employment action. Scott v. Godwin, 147 8.W.3d 609, 616 (Tex. App.— Corpus Christi 2004, no pet.). Defendants argue that Perry has no evidence regarding elements 2, 3, and 4 set forth above. As shown below, there is a genuine issue of material fact on each of the challenged elements relating to Perry’s First Amendment claims, and therefore, Defendants’ Motion should be denied regarding this cause of action. 1. Perry engaged in protected speech under the First Amendment. Defendants argue that Perry has not provided evidence, as a matter of law, that his speech was a matter of public concern. Such evidence was attached to Perry’s response to Defendants’ Partial Motion, and as such, Perry adopts herein his previous response and arguments regarding this 10 Oo my issue. See also, Exhibits A and Q. Further, Perry has cited numerous state and federal statutes, including those cited in his Seventh Amended Petition, that address the public importance of gang- related issues. See also, Exhibit K, pp. 126-128; 144-146. In addition, Benitez admits gang-related communications are a very important public concern. See Exhibit H, pp. 26-27. Further, Perry made an official report regarding illegal conduct of Turner and Bonaparte to the Harris County District Attorney’s Office on October 18, 2005. See Exhibits A and Q. It is axiomatic that reporting conduct that violates a criminal law is a matter of public concern. 2. Although Perry has provided evidence that his interest in commenting on matters of public concern outweighs an interest AISD has in efficiency, AISD had not produced any evidence that would allow the Court to conduct such a balancing test. The following evidence raises a genuine issue of material fact on this element: . Perry made gang-related communications to various local, state and federal law enforcement officials who were investigating gang-related crimes, including postings on the CLEO website. See Exhibits A & Q. Perry made these communications as a concerned citizen and in the interest of police officer safety. See id. Congress and the state of Texas have enacted several laws aimed at combating gang- violence, See 18 U.S.C. §§ 521, 922, 924, 1513(¢), 1959, 1962 and 21 U.S.C. §§ 802, 841(a)(1), 846, 860. See also, Exhibit A. Notwithstanding that Perry has raised a fact issue regarding whether communications about gangs are of public concern, Defendants offer no summary judgment evidence that would enable the Court to conduct a balancing test between AISD and Perry’s interests. Until they do, this Court does not have any bases upon which to conduct such an analysis. 3. Plaintiff's protected speech motivated his termination. The following evidence raises a genuine issue of material fact on this element: Perry officially reported the illegal conduct of Turner and Bonaparte to the Harris County District Attorney’s Office on October 18, 2005. See Exhibits Q; K, pp. 72- 73. 11 a * On October 26, 2005, Bonaparte told Perry that there were no complaints against him and no problems. See Exhibits A; H, pp. 161-165. On October 27, 2005, Defendants knew Perry had officially reported Turner and Bonaparte’s conduct to the Harris County District Attorney’s Office because Perry filed a grievance on that day regarding the same. See Exhibit A-6; Exhibit H, p. 157. On November 1, 2005, Perry again informed Bonaparte that he had reported Turner and Bonaparte’s conduct to the Harris County District Attomey’s Office. See Exhibit Q-2. Ironically, on the same day, and again on November 4, Defendants allege that certain AISD police officers made the statements contained in Exhibit B attached to Defendants’ Motion. A few days later, on November 11, 2005, Perry was terminated. See Exhibit A. There is no evidence to support the allegations contained in Benitez’s November 17, 2005 termination letter to Perry. See Exhibit H, pp. 134-139. There is not one objective picce of evidence to support the proposition that Perry had inappropriate interaction with students, See Exhibit N, p. 105-106. Bonaparte has continued to assert his rights under the Fifth Amendment. See Exhibits O & P. On May 4, 2005, Bonaparte sent Perry an email stating that his exportation of gang- related information regarding activities in and around the District were causing a number of problems, particularly that the Superintendent was upset that such information was posted on CLEO. See Exhibits H-12 & H-15. In June 2005, the AISD administration wanted to fire Perry. See Exhibit H, pp. 63- 65. On June 13, 2005, Perry received a review that did not indicate in any way that AISD wanted to fire him. See Exhibits N, pp. 68-73; N-23. On July15, 2005, Perry was removed from his position as gang officer and placed on patrol duty, and such reasons for doing so were unsubstantiated. See Exhibit K, pp. 177-178; Exhibits A; A-1; Exhibit N, pp. 73-74; Exhibit S. Cc. Section 1983: Fourteenth Amendment Claims The elements of a Section 1983 cause of action for violation of the Fourteenth Amendment 12 o“ are as follows: 1 The plaintiff was employed by a governmental agency; 2 The plaintiff was terminated from his employment; 3 The plaintiff had a Constitutionally protected interest; 4 Before his termination, the plaintiff was not afforded due process (substantively or procedurally) for deprivation of that interest; and 5 As a result of the discharge, plaintiff suffered damages. See e.g., Board of Regents v, Roth, 408 U.S, 564 (1972). Defendants argue that Perry has no evidence regarding elements 3 and 4 set forth above. As shown below, there is a genuine issue of material fact on each of the challenged elements relating to Perry’s Fourteenth Amendment claims, and therefore, Defendants’ Motion should be denied regarding this cause of action. 1 Perry has a Constitutionally protected property interest. A determination of whether an entitlement to any liberty or property interest exists is primarily a matter of state law. See American Manufacturer’s Mutual Insurance Co. v. Sullivan, 526 U.S. 40 (1999). As the Supreme Court in Roth explained: To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it. It is a purpose of the ancient institution of property to protect those claims upon which people rely in their daily lives, reliance that must not be arbitrarily undermined .. . Property interests, of course, are not created by the Constitution, rather they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law — rules or understandings that secure certain benefits and that support claims of entitlement to those benefits. 408 U.S. at 577. TEX. Gov’T CODE §§ 614.021-023 specifically secured such a benefit to Perry, who was a 13 tN a police officer. This issue has been addressed in Perry’s response to Defendants’ Partial Motion. Accordingly, Perry herein adopts by reference the arguments and evidence contained in his response to Defendants’ Partial Motion. In addition, since filing his response to Defendants’ Partial Motion, Perry has deposed Defendants Turner and Bonaparte again for the second time. Bonaparte continues to assert his Fifth Amendment rights and refuses to give testimony in this case. See Exhibits O & P. Further, Turner admits that Perry is entitled to the protections afforded police officers pursuant to the Government Code, a policy which has also been expressly adopted by AISD. See Exhibit N, pp.103-106; Exhibit E, 2 Perry has been denied procedural and substantive due process afforded by Texas Government Sections 614.021-023. This issue has been addressed in Perry’s response to Defendants’ Partial Motion. Accordingly, Perry herein adopts by reference the arguments and evidence contained in his response to Defendants’ Partial Motion. It is undisputed that AISD did not provide Perry written copies of the alleged complaints made against him as he was entitled under the Texas Government Code. In addition, Defendants did not conduct an investigation into the veracity of the alleged complaints, and Bonaparte refuses to testify regarding the same. In essence, Perry was denied procedural due process created under the Government Code. In addition, the following evidence raises a genuine issue of material fact that Defendants’ actions were arbitrary and capricious, denying Perry his substantive rights created by the Constitution and the Texas Government Code: . There is not one objective piece of evidence to support the proposition that Perry had inappropriate interaction with students. See Exhibit N, p. 105-106. There is no evidence to support the allegations contained in Benitez’s November 17, 2005 letter to Perry. See Exhibit H, pp. 134-139. 14 “A . When Perry specifically asked Benitez and Bonaparte to sce the complaints made against him that were alleged to be the basis for his termination, Benitez and Bonaparte refused to do so. See Exhibit H, pp. 131-134. As of October 26, 2005, Bonaparte told Perry that there were no complaints against him. See Exhibit Q, Defamation The elements of a cause of action for defamation are as follows: 1 The defendant published a statement of fact; The statement referred to the plaintiff; The statement was defamatory; The statement was false; and With regard to the truth of the statement, the defendant was (a) acting with actual malice; (b) negligent; or © liable without regard to fault; and 6 The plaintiff suffered pecuniary injury (unless injury is presumed). See Bentley v. Bunton, 94 8.W.3d 561, 579, 586, 590 (Tex. 2002), Leyendecker & Assocs. v. Wechter, 683 S.W.2d 369, 374 (Tex. 1984). Defendants argue that Perry has no evidence regarding elements 1, 4, 5 and 6 set forth above. As shown below, there is a genuine issue of material fact on each of the challenged elements relating to Perry’s defamation claim, and therefore, Defendants’ Motion should be denied regarding this cause of action. L Defendants Turner and Bonaparte published a statement of fact. The following evidence raises a genuine issue of material fact on this element: . Benitez testified that Turner told her that Perry acted inappropriately with students on numerous occasions. See Exhibit H, pp. 120, 141-148, 163-165 Benitez testified that Bonaparte told her that Perry acted inappropriately with students. See Exhibit H, pp. 120, 148, 163-165. 15 of oO Bonaparte has twice asserted his rights under the Fifth Amendment and refused to answer any questions concerning this lawsuit. See Exhibits O & P. In his Affidavit attached as exhibit M to Defendants’ Partial Motion, Turner admits he reported to Human Resources that Perry acted inappropriately with students. Nevertheless, Defendants argue that “[making] these alleged statements to cach other is not a publication as it is to a person within the organization with an interest in the matter.” To be sure, the Texas Supreme Court has held that in defamation cases, an employer has a conditional or qualified privilege that attaches to communications made in the course of an investigation following areport of employee wrongdoing. See Randall's Food Markets, Inc. v. Johnson, 891 S.W.2d 640, 646 (Tex. 1995). The privilege remains intact as long as communications pass only to persons having an interest or duty in the matter to which the communications relate. See id, However, proof that a statement was motivated by actual malice existing at the time of publication defeats the privilege. See id. Further, “[t]o invoke the privilege on summary judgment, an employer must conclusively establish that the allegedly defamatory statement was made with an absence of malice.” Id, Defendants have not offered any competent summary judgment evidence attached to their Motion establishing a lack of malice. First, to the extent Defendants seek to use the Affidavit of Bonaparte attached to their Partial Motion as Exhibit N, Perry reasserts his argument that such affidavit constitutes an offensive use of the Fifth Amendment and should be struck. See Newsome y. State Board of Insurance, 922 S.W.2d 274, 279 (Tex. App. — Austin 1996, writ denied). Bonaparte asserted his Fifth Amendment rights and refused to answer questions at his first deposition on January 22, 2007. See Exhibit O. Subsequently, he executed his Affidavit on March 2, 2007. Bonaparte then reasserted his Fifth Amendment rights and refused to answer questions at his second deposition on May 23, 2007. See Exhibit P. Such use of the Fifth Amendment bars Defendants from relying on Bonaparte’s Affidavit in support of this Motion and their Partial Motion. Second, to the extent Defendants attempt to rely on Turner’s Affidavit attached to their 16 A “ Partial Motion as Exhibit M, Turner’s Affidavit meets a similar fate. On summary judgment in a defamation case, a defendant’s affidavit will negate actual malice as a matter of law “only if [it is] clear, positive, and direct, otherwise credible and free from contradictions and inconsistencies, and able to be readily controverted.” See New Times, Inc. v. Isaacks, 146 S.W.3d 144, 164 (Tex. 2004). Turner’s Affidavit attached to Defendants’ Partial Motion fails in all regards. Turner’s Affidavit States: I received reports from various administrators with the District that Troy Perry’s behavior, with respect to his interactions with students, parents, and faculty, was inappropriate. I used my judgment and found these reports to be reliable and in the interest of Alief and its students and faculty, I reported my findings as well as my observations to Human Resources. This was done without malice. As Police Captain at Alief, the circumstances arose where I was required to make determinations as to the appropriateness of a subordinate officer’s conduct. It sometimes became necessary, as in the case of Troy Perry, to recommend and/or carry out disciplinary measures. These included . . .a recommendation and/or provision of my observations as to a recommendation of termination. It is not my understanding that my issuance of disciplinary measures, such as my . . . recommendation of termination . . . in any way violates the Constitutional rights of any officers under my supervision. However, Turner’s deposition testimony completely contradicts his Affidavit. Turner testified that: . There is not one objective piece of evidence to support the proposition that Perry had inappropriate interaction with students. See Exhibit N, p. 105-106. Turner had nothing to do with Perry’s termination; he did not write any recommendations that Perry be terminated; and he did not meet with any AISD representative regarding disciplining Perry. See Exhibit N, p. 17-18. Benitez testified that Turner was part of the decision to terminate Perry. See Exhibit H, pp. 93-96. Turner never saw Perry acting inappropriately with students. See Exhibit N, p. 31- 32. 17 a “ The facts supporting the statement that Perry had inappropriate interaction with students did not come from Turner. See Exhibit N, p. 100. There are no facts supporting the who, what, when and where of the statement that Perry acted inappropriately with students. See Exhibit N, p. 105-106. Clearly, Tumer’s Affidavit is not clear, positive or direct; is not credible or free from contradictions and inconsistencies; and does not allege the who, what, when, where, and why of his conclusory allegations, and thus, cannot by readily controverted. Tumer’s Affidavit contradicts his sworn deposition testimony and does not conclusively establish that the defamatory statement was made with an absence of malice. 2. With regard to the truth of the statements made, Turner and Bonaparte acted with actual malice. Notwithstanding Defendants’ failure to establish a lack of malice, Perry’s summary judgment evidence raises a genuine issue of material fact that Turner and Bonaparte indeed acted with actual malice. In the defamation context, “actual malice” requires proof that the defendant made a statement with knowledge that is was false or with reckless disregard of whether it was truc or not. See New Times, Inc., 146 S.W.3d at 162. The following evidence raises a genuine issue of material fact regarding whether Turner and Bonaparte acted with actual malice: . Benitez testified that Turner told her that Perry acted inappropriately with students. See Exhibit H, pp. 120, 141-148, 163-165 Benitez testified that Bonaparte told her that Perry acted inappropriately with students. See Exhibit H, pp. 120, 148, 163-165. Bonaparte has twice asserted his rights under the Fifth Amendment and refuses to answer any questions concerning this lawsuit. See Exhibits O & P. In his Affidavit attached as exhibit M to Defendants’ Partial Motion, Turner admits he reported to Human Resources that Perry acted inappropriately with students. 18 a Tumer testified that: . There is not one objective piece of evidence to support the proposition that Perry had inappropriate interaction with students, See Exhibit N, p. 105-106. Tumer had nothing to do with Perry’s termination; he did not write any recommendations that Perry be terminated; and he did not meet with any AISD representative regarding disciplining Perry. See Exhibit N, p. 17-18 Benitez testified that Turner was part of the decision to terminate Perry. See Exhibit H, pp. 93-96. . Turner never saw Perry acting inappropriately with students. See Exhibit N, p. 31-32. The facts supporting the statement that Perry had inappropriate interaction with students did not come from Turner. See Exhibit N, p. 100. There are no facts supporting the who, what, when and where of the statement that Perry acted inappropriately with students. See Exhibit N, p. 105-106. Alternatively, Perry would show the Court that pursuant to element 5 above, Defendants are liable without regard to fault. In defamation suits brought by private plaintiffs against non-media defendants, defendants are liable without a showing of actual malice. “The publication of defamatory matter, actionable per se, entitles the person defamed to compensation for the actual injury done him without regard to the motive with which the publication was made and want of actual intent to injure or defame furnishes no legal excuse . . . Proof of the publication of the false injurious statement is sufficient without any necessity of showing a particular mental state, for one is assumed to intend to make the statement that issues from his mouth or pen.” Peshak v. Greer, 13 S.W.3d 421, 426 (Tex. App.— Corpus Christi 2000, no pet.); see also Snead v. Redland Aggregates Lid, 998 F.2d 1325, 1334 (5" Cir. 1993) (“Under Texas law, presumed damages are available in cases of libel per se without any showing of fault on the part of the defendant.”), As shown herein, Turner and Bonaparte made slanderous statements to Benitez that Perry 19 cn ry ey had “inappropriate interaction with students and engaged in conduct detrimental to the AISD police force.” After Turner and Bonaparte communicated this to Benitez, a written statement stating the same was placed in Perry’s personnel file. These defamatory statements constitute slander per se because, by way of these statements, Defendants falsely asserted malfeasance in Plaintiffs business, profession or occupation as an AISD officer. See Bradbury v. Scott, 788 S.W.2d 31, 38 (Tex. App.— Houston [1* Dist.] 1989, writ denied). 3. The statements made by Turner and Bonaparte was false. The following evidence raises a genuine issue of material fact regarding whether Turner and Bonaparte’s statements were false: . Perry states that the statement is not true. He has not had inappropriate interaction with students. See Exhibit A & Q. There is not one objective piece of evidence to support the proposition that Perry had inappropriate interaction with students. See Exhibit N, pp. 105-106. 4. Not only did Perry suffer pecuniary injury, but injury is presumed. The following evidence raises a genuine issue of material fact regarding whether Perry suffered pecuniary injury: . It is undisputed that Perry was terminated from his employment with AISD. See Exhibit A. As shown herein, Perry was retaliated against for exercising Constitutionally protected speech and for reporting the conduct of Tumer and Bonaparte to the Harris County District Attoey’s Office. One of the vehicles used by Defendants to effect their retaliation, and to create a ruse that their actions were justified, was the defamatory statements made by Turner and Bonaparte that lead to Perry’s termination. Perry suffered pecuniary injury as a result of his termination. See Exhibit R. However, Perry’s injury is nevertheless presumed under Texas law because the statements made by Turmer and Bonaparte are defamation per se, and Defendants have not offered any evidence 20 oN x to rebut such a presumption. See Bentley, 94 S.W.3d at 604 (“Our law presumes that statements that are defamatory per se injure the victim's reputation and entitle him to recover general damages, including damages for loss of reputation and mental anguish”); see also Snead, 998 F.2d at 1334; Peshak, 13 S.W.3d at 426-427. Vv. ON! 1 ND PE ER Pursuant to the arguments and evidence cited herein, the Court should deny Defendants’ Motion in its entirety. Respectfully submitted, LOOPER REED & McGRAW, P.C. By JameS L. Reed State Bar Number 16679200 Michael A. Ackal, III State Bar Number 24045367 1300 Post Oak Blvd., Suite 2000 Houston, Texas 77056 (713) 986-7000 Telephone (713) 986-7100 Telecopier ATTORNEYS FOR PLAINTIFF 21 CERTIFICATE OF SERVI E