Employment – Whistleblower and Free Speech

This litigation graphic was designed for an employment whistleblower and free speech case (claims under 42 U.S.C. § 1983 (free speech) and the Texas Whistleblower Act, TEX.) involving Assistant Medical Examiner, Dr. Murr (latter Murr Doyle).

When Dr. Carter was appointed the Chief Medical Examiner, a number of controversies and lawsuits developed. This controversy began when Dr. Carter offered a friend, Dr. Van Dusen, a position as a medical examiner. Dr. Murr discovered that Dr. Van Dusen did not have the proper credentials to act as a medical examiner and reported this fact up the chain of command. Later, Dr. Murr began to refuse to sign off on Van Dusen’s reports and later met with the District attorney about this credentialing issue.

Eventually, the matter was exposed in the newspaper and Dr. Murr was fired without warning, even though she had an exemplary employment record during her five year employment as a medical examiner. When the matter went to the Texas Workforce Commission, Dr. Carter testified, “I knew whatever we did, it would hang over us like a whistle blower.“

During the case discovery, the plaintiff attorney discovered that Dr. Murr’s employment file had been “stuffed” with false reprimands.

The case went to trial and Dr. Murr prevailed with a significant verdict. However, in a post-trial ruling, the judge vacated the verdict as a matter of law. This was later affirmed on appeal to the Fifth Circuit Court of Appeals. The full appellate decision is below.

In January 2003, Dr. Luis Arturo Sanchez replaced Dr. Carter as Chief Medical Examiner. Dr. Carter started a private pathology consulting practice and authored a book:

I SPEAK FOR THE DEAD is an insightful journey through the medical and legal process of defining the cause of death. The nation’s first black, female chief medical examiner, Dr. Joye M. Carter, provides a frank discussion of the emotional turmoil family members must cope with after experiencing the loss of a loved one. Dr. Carter’s approach to educating the reader is enhanced by two decades of forensic experience. This book helps lift the shroud of mystery that surrounds a sensitive topic, allowing a keen inspirational look into the death as a part of life.

________________________________________________________________________________

United States Court of Appeals
Fifth Circuit
FILED
July 15, 2003
Charles R. Fulbruge III
Clerk

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 01-20366

MARILYN MURR DOYLE, MD
Plaintiff-Appellant,

versus

HARRIS COUNTY,
Defendant-Appellee.
Appeal from the United States District Court
for the Southern District of Texas
(H-98-CV-2201)
Before SMITH and BARKSDALE, Circuit Judges, and DUPLANTIER,
District Judge*.
PER CURIAM:**

This appeal is from a post-trial judgment as a matter of law,
vacating Dr. Marilyn Murr Doyle’s jury award on her claims under 42
U.S.C. § 1983 (free speech) and the Texas Whistleblower Act, TEX.
GOV’T CODE §§ 554.001-.009. At issue is whether a reasonable jury
could have concluded that Dr. Doyle’s termination from her
governmental position was caused by her comments to a newspaper,
among others. AFFIRMED.

I.
Dr. Doyle was an assistant medical examiner, as well as one of
three doctors considered senior pathologists, for the Harris County
Medical Examiner’s Office (HCMEO). She began with the HCMEO in
1992.

In 1996, Dr. Joye Carter was employed as HCMEO Chief Medical
Examiner to implement a number of policy changes for the Harris
County Commissioners Court. These changes included phasing out
doctors’ full-time use of county cars, forbidding doctors from
performing outside autopsies on county time, and creating stricter
attendance and time-scheduling requirements. These changes were
not welcomed by HCMEO doctors and staff.

In September 1997, Dr. Carter employed Dr. Delbert Van Dusen
as a pathologist; Dr. Van Dusen did not have a Texas medical
license, although he was licensed elsewhere and was studying for
his Texas license. The HCMEO staff discovered Dr. Van Dusen did
not have a license because senior pathologists were asked to sign
death certificates for autopsy work he performed.

Dr. Doyle had disciplinary problems under Dr. Carter. In
January 1997, approximately a year before the key dates for this
action, Dr. Carter verbally consulted Dr. Doyle concerning a number
of unplanned absences. Some of these were due to Dr. Doyle’s son’s
illness; nevertheless, unexplained absenteeism continued, as
covered by a memorandum from Dr. Carter to Dr. Doyle on 15 May
1997.

Dr. Doyle also had a number of verbal confrontations with
supervisors and colleagues. On 6 November 1997, Dr. Doyle called
the Deputy Chief Medical Examiner, Dr. Tommy Brown, her direct
supervisor, a liar because she did not believe his response to a
question regarding distribution of undesirable autopsy cases. As
a result of this confrontation, Dr. Brown recommended Dr. Doyle’s
termination. Dr. Carter did not then terminate Dr. Doyle.
Rudy Flores, court coordinator, also reported an incident with
Dr. Doyle on 8 December — Dr. Doyle would not testify at court on
short notice, although the scheduled doctor was sick. Dr. Doyle
was verbally counseled by Drs. Carter and Brown, and Alex Conforti,
HCMEO chief administrative officer, on 18 December, regarding the
Flores incident, properly using the security card system, and other
issues.

Around this time, Dr. Doyle attended a medical conference in
Atlanta where she learned Dr. Van Dusen had failed his pathologist
fellowship program; this caused her concern because she was signing
death certificates for Dr. Van Dusen. Dr. Doyle shared this
information with other HCMEO doctors.

On 5 January 1998, Drs. Carter and Brown met with Dr. Doyle
and instructed her to stop gossiping about Dr. Van Dusen’s
credentials. Dr. Doyle complained about having to sign Dr. Van
Dusen’s death certificates and, according to her testimony,
informed Dr. Carter that she believed Dr. Van Dusen’s performance
of autopsies was an illegal practice of medicine. Dr. Doyle and
Dr. Patricia Moore, an associate medical examiner, testified that
Dr. Carter’s attitude toward Dr. Doyle changed after 5 January.

On 7 January, Dr. Doyle refused to sign one of Dr. Van Dusen’s
death certificates and autopsy reports. Two days later (9
January), Dr. Doyle met with District Attorney Holmes to express
her concerns regarding Dr. Van Dusen. The District Attorney stated
he would maintain Dr. Doyle’s anonymity, unless it was necessary to
reveal her name in the course of prosecution. The District
Attorney informed Dr. Doyle that he thought Dr. Van Dusen might be
illegally practicing medicine and assigned Don Stricklin, the
District Attorney’s first assistant, to investigate.

Stricklin later contacted Rose Garcia, an attorney for HCMEO
on non-criminal matters, to discuss the matter. Stricklin
testified that, in the first meeting, he never mentioned Dr.
Doyle’s name. He was not certain when her name first came up; but,
at some point, he did mention Dr. Doyle by name. Garcia met with
Dr. Carter at least once a week.

Around that time, Dr. Parungao, another senior pathologist,
also met with various judges and prosecutors regarding his similar
concerns about Dr. Van Dusen. He told Dr. Brown, however, about
those conversations with prosecutors. Dr. Brown informed Dr.
Carter of his conversation with Dr. Parungao; Dr. Carter replied
that she did not believe Dr. Van Dusen’s performing autopsies was
a problem because he was supervised.

On 9 January (the day of Dr. Doyle’s first communication with
the District Attorney), Dr. Doyle was provided a follow-up
memorandum concerning her 5 January meeting with Drs. Carter and
Brown. In it, Dr. Carter stated: “Before you criticize our junior
staff, remember the phrase ‘people in glass houses’”. Dr. Carter
then listed a number of Dr. Doyle’s past problems, including
missing photos from an autopsy report, the exhumation of a body
after Dr. Doyle’s autopsy left certain questions unanswered,
attendance problems, and verbal altercations. Dr. Doyle
interpreted the “glass houses” comment as retaliatory and a
reference to her meeting with the District Attorney.

The Houston Chronicle ran the first of a series of newspaper
articles on 16 January concerning the investigation of Dr. Van
Dusen. Two days earlier, Dr. Doyle had granted an interview to a
Houston Chronicle reporter, after he agreed not to publish her
name. The article quoted her, without attribution, as stating she
was concerned about signing Dr. Van Dusen’s death certificates.
The article, however, attributed Dr. Doyle’s quotes to two
pathologists.

Although the Houston Chronicle was delivered daily to Dr.
Carter’s office for the staff to read, Dr. Carter testified she
never read it. Dr. Brown testified he believed Dr. Parungao had
spoken to the District Attorney and that conversation had caused
the investigation.

On 12 February, Dr. Doyle again met with the District Attorney
and other county prosecutors. On 26 February, Dr. Doyle had another
verbal confrontation with Dr. Brown; she told Dr. Brown she would “write him up”.
Another HCMEO employee witnessed the confrontation.
During this period, because of concerns with using a new
security card system and attendance, Dr. Carter conducted a number
of time sheet analyses. On 3 March, Dr. Doyle received a
memorandum from Conforti indicating she had not followed the
security/time sheet policies.

On 16 or 17 March, Dr. Carter learned of three more incidents
involving Dr. Doyle. Although the facts are contested, a
pathologist assistant reported to Dr. Carter that Dr. Doyle called
the assistant a “tonto” and a “maid”. Further, Dr. Carter learned
from the Chief Toxicologist that Dr. Doyle continued to disregard
standard operating procedures for testing. Finally, on 17 March,
Dr. Carter reviewed an autopsy report for the Smither case,
prepared earlier by Dr. Doyle.

While performing that autopsy, Dr. Doyle had not followed Dr.
Carter’s instructions on which procedures to conduct. Further,
the report had not been corrected, contrary to Dr. Carter’s
instructions more than eight months before. The report did not
properly identify trace hair evidence, which had confused the
homicide investigation.

On 18 March, with Dr. Brown present, Dr. Carter told Dr. Doyle
she could choose to either resign or be terminated and gave Dr.
Doyle a memorandum listing reasons for her discharge. These
included problems with the Smither autopsy, verbal altercations
with Dr. Brown and others, disregard for toxicology procedures,
insults to the pathology assistants, and failure to properly fill
out time-sheets and use the security card system. Also listed was:
“Your activities outside the autopsy suite continue to serve only
to divide the office”.

Two days after Dr. Doyle was terminated, a newspaper article
revealed she was the whistleblower. The next month (April 1998),
Dr. Carter was contacted by a representative from the Texas
Workforce Commission, concerning a claim filed by Dr. Doyle.
According to the report of that communication, Dr. Carter said:
When all of these things [problems with
autopsy, failure to follow toxicology
procedures, insults to pathologist assistants]
were brought to me from the prior week and
weekend[,] on Tuesday I released the claimant
[Dr. Doyle]. I knew whatever we did[,] it
would hang over us like a whistleblower, but
the letter to her predates any media action as
do a lot of the general counselings to improve.

Dr. Doyle brought this action against Harris County in mid-
1998. After a 14-day jury trial, in March and April 2000, the
County was found liable for violating Dr. Doyle’s First Amendment
right to free speech and the Texas Whistleblower Act. Post-trial,
however, the district court granted the County’s motion for
judgment as a matter of law, holding the evidence insufficient for
a reasonable juror to find causation.

II.
A judgment as a mater of law (JMOL) is reviewed de novo.
E.g., Travis v. Bd. of Regents of Univ. of Texas Sys., 122 F.3d
259, 263 (5th Cir. 1997), cert. denied, 522 U.S. 1148 (1998). If,
after reviewing all the evidence in the light most favorable to the
non-movant and drawing all reasonable inferences in the non-
movant’s favor, the evidence is insufficient for a reasonable jury
to find for the non-movant, we will affirm the JMOL. E.g., Serna
v. City of San Antonio, 244 F.3d 479, 481 (5th Cir.), cert. denied,
534 U.S. 951 (2001). In evaluating the evidence, we must review
the record as a whole. Reeves v. Sanderson Plumbing Prods., Inc.,
530 U.S. 133, 150 (2000). The court should give credence to all
evidence favoring the non-movant and all uncontradicted and
unimpeached evidence supporting the moving party, at least to the
extent it comes from disinterested witnesses. Id. at 151.
Because the standards for recovery for the free speech and
Whistleblower claims are similar, we will address them together.

To recover under a First Amendment retaliation claim, brought
through § 1983, a party must: (1) suffer an adverse employment
action; (2) show that the speech in question was a matter of public
concern; (3) show that the party’s interest in commenting on
matters of public concern outweighs her employer’s interest in
efficiency; and (4) show that the speech motivated the adverse
employment action. Serna, 244 F.3d at 482. For the fourth prong
(causation), the employee must show the protected speech was, as
noted, a “motivating” or “substantial” factor in the adverse
employment decision; but, if the employee satisfies this burden,
the employer is entitled to show that he would have made the
employment decision even if the employee had not engaged in the
protected activity. Mt. Healthy City Sch. Dist. Board of Educ. v.
Doyle, 429 U.S. 274, 287 (1977); Click v. Copeland, 970 F.2d 106,
113 (5th Cir. 1992) (applying standard to review JMOL after
plaintiff’s evidence).

Along these lines, the Supreme Court has stated:
A rule of causation which focuses solely on
whether protected conduct played a part,
“substantial” or otherwise, in a decision not
to rehire, could place an employee in a better
position as a result of the exercise of
constitutionally protected conduct than he
would have occupied had he done nothing….
The constitutional principle at stake is
sufficiently vindicated if … an employee is
placed in no worse a position than if he had
not engaged in the conduct. A borderline or
marginal candidate should not have the
employment question resolved against him
because of constitutionally protected conduct.

But that same candidate ought not be able, by
engaging in such conduct, to prevent his
employer from assessing his performance record
and reaching a decision …, simply because
the protected conduct makes the employer more
certain of the correctness of its decision.
Doyle, 429 U.S. at 286.

To recover under the Texas Whistleblower Act, TEX. GOV’T CODE §§
554.001-.009 (TWA), a party must show: (1) a good faith report of
a violation of law; (2) the report was made to an appropriate law
enforcement authority; and (3) a suspension or termination of
employment, or other adverse personnel action, as a result of the
report. TEX. GOV’T CODE § 554.002(a); Serna, 244 F.3d 479. “To show
causation, a public employee must demonstrate that … the employee
suffered discriminatory conduct … 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). Along
these lines, in determining this causation standard, the Texas
Supreme Court relied upon Doyle and cited the above-quoted section
of that opinion. Texas Dep’t of Human Servs. of the State of Texas
v. Hinds, 904 S.W.2d 629, 636 (Tex. 1995).

Circumstantial evidence may be used to show causation under
the TWA. Such evidence includes: (1) knowledge of the report of
illegal conduct; (2) a negative attitude toward the employee’s
report of the conduct; (3) failure to adhere to the employer’s
policies regarding employment decisions; (4) discriminatory
treatment in comparison to similarly situated employees; and (5)
evidence that the stated reason for the adverse employment action
was false. Zimlich, 29 S.W.3d at 69 (Tex. 2000). Causation,
however, cannot be found without some evidence. Id. at 68. Under
the TWA, the employee has the burden of proof; but, if the action
is filed within 90 days of termination, there is a rebuttable
presumption that it was caused by the report. TEX. GOV’T CODE §
544.004(a).

Generally, Dr. Doyle contends the discharge-reasons given by
Dr. Carter are pretextual. On appeal, as in its post-trial JMOL
motion, the County contends the evidence was insufficient to
support finding causation. (For the TWA claims, the County has
presented evidence sufficient to rebut the presumption of
causation. See Texas Natural Resources Conservation Commission v.
McDill, 914 S.W.2d 718, 723-24 (Tex. App. – Austin 1996, no writ)
(presumption rebutted when evidence offered showing no causation).)
Dr. Doyle maintains she engaged in three instances of
protected activity: (1) her report to Dr. Carter at the 5 January
1998 meeting; (2) her reports to the District Attorney, beginning
9 January; and (3) her 14 January interview with the Houston
Chronicle reporter. Dr. Doyle failed, however, to brief, and
therefore waived, her First Amendment claims for any conduct but
the newspaper interview.

A.
Dr. Doyle has failed to present evidence sufficient to show
Dr. Carter knew Dr. Doyle spoke with the Houston Chronicle. “It is
axiomatic that a party cannot be ‘substantially motivated’ by a
circumstance of which that party is unaware.” Tharling v. City of
Port Lavaca, 329 F.3d 422, 428 (5th Cir. 2003).
As noted, Dr. Carter testified that she never read the 16
January article. As Dr. Doyle correctly states, the jury is
entitled to disbelieve Dr. Carter. Nevertheless, Dr. Doyle must
present some evidence that Dr. Carter knew, or believed, Dr. Doyle
was the source for the article. For this purpose, Dr. Doyle
contends the jury could so infer for the following reasons: the
District Attorney instructed Stricklin, his first assistant, to
investigate; Stricklin spoke with Garcia, the HCMEO attorney, about
an HCMEO doctor reporting that “she” perceived a problem with Dr.
Van Dusen; the newspaper article quoted two pathologists, one of
whom expressed concern about signing death certificates for Dr. Van
Dusen; and only senior pathologists sign death certificates.
Combining these facts, Dr. Doyle claims that, because she was
the only female senior pathologist signing Dr. Van Dusen’s reports,
Dr. Carter knew the newspaper article quoted Dr. Doyle. Dr. Doyle,
however, has not presented any evidence, circumstantial or
otherwise, regarding the content of any discussions Dr. Carter had
with Garcia. Dr. Doyle’s theory is pure speculation. See Tharling,
329 F.3d at 428 (“notice that unnamed witnesses had lodged
complaints … is not tantamount to notice that [plaintiff] himself
made any allegations”).

Dr. Doyle also generally claims that a jury could infer Dr.
Carter believed Dr. Doyle was the newspaper’s source because, prior
to the article, Dr. Doyle had stated to Dr. Carter that she (Dr.
Doyle) believed Dr. Van Dusen was illegally practicing medicine.
She supports this claim with the following two pieces of evidence.
First, Dr. Doyle and two colleagues testified that Dr.
Carter’s attitude changed toward her after that 5 January meeting.
Although this change may be attributed to her report to Dr. Carter,
it predates the newspaper article and cannot be used to show Dr.
Doyle was terminated because of her subsequent report to the
newspaper.

Second, Dr. Doyle contends that, on 16 January, in a staff
meeting, Dr. Carter criticized those who spoke to the media and,
while doing so, stared at Drs. Parungao and Doyle. This one piece
of evidence does not create a sufficient conflict to present a jury
question. See Zimlich, 29 S.W.3d at 69 (“[E]vidence that an
adverse employment action was preceded by a superior’s negative
attitude toward an employee’s report of illegal conduct is not
enough, standing alone, to show a causal connection between the two
events”); see also Reeves, 530 U.S. at 148 (discussing sufficient
evidence in a Title VII context: “[A]n employer would be entitled
to judgment was a matter of law … if the plaintiff created only
a weak issue of fact as to whether the employer’s reason was untrue
[i.e., pretextual] and there was abundant and uncontroverted
independent evidence that no discrimination had occurred”).
In any event, as discussed below, faced with the overwhelming,
uncontested evidence of her numerous violations of office policy,
Dr. Doyle has failed to rebut that Dr. Carter would have terminated
her regardless of her report to the newspaper.

B.
As for the other two claimed instances of protected activity
(reports to Dr. Carter and to the District Attorney), reviewed only
in reference to the TWA, Dr. Doyle contends Dr. Carter knew of her
report to the District Attorney, using reasoning similar to that
above: the District Attorney instructed Stricklin to investigate;
Stricklin spoke with Garcia; Garcia spoke with Dr. Carter; and,
therefore, it follows that Dr. Carter knew Dr. Doyle reported.
Again, Dr. Doyle has provided no evidence regarding the content of
any of these conversations. Moreover, although Stricklin stated he
mentioned Dr. Doyle’s name at some point, he noted it was not in
his initial discussions with Garcia and could not recall when he
did.

Further, Dr. Doyle asserts Dr. Carter’s reasons for
termination are pretext because, directly after meeting with
Garcia, Dr. Carter ordered the time sheet comparisons. Dr. Doyle
contends this shows Dr. Carter attempted to set-up Dr. Doyle and
create a paper trail.

First, without any evidence of the content of conversations
between Dr. Carter and Garcia, Dr. Doyle’s contention is mere
speculation. Second, Dr. Doyle had ongoing problems in using her
security card and properly filling out her time-sheets; the time-
sheet comparison was new, but the motivating problems were not.
Third, Dr. Doyle ignores undisputed evidence that she was
terminated directly after Dr. Carter learned about problems with
the Smither autopsy, abuses of toxicology procedures, and
inconsiderate comments made to Dr. Doyle’s colleagues. None of
these events relate to the time-sheet comparison.
In any event, Dr. Doyle also claims Dr. Carter retaliated
against her because Dr. Doyle told Dr. Carter that she believed Dr.
Van Dusen was practicing medicine illegally. As stated above, she
also claims Dr. Carter could infer from this report that Dr. Doyle
was the source for the subsequent newspaper article. Again, Dr.
Doyle has failed: (1) to rebut the County’s uncontested evidence
of her many disciplinary problems; and (2) to show that she would
not have otherwise been terminated.

First, Dr. Doyle claims the “people in glass houses” comment
in Dr. Carter’s 9 January memorandum referred to her recent meeting
with the District Attorney or Dr. Carter; and Dr. Carter wanted to
retaliate against her. That statement, however, was followed by
examples of disciplinary problems and mistakes Dr. Doyle had made.

It is evident from the context of the statement that Dr. Carter
merely wished to point out that Dr. Doyle should not criticize her
colleagues when she had so many problems herself. No other
reasonable inference can be made.

Further, Dr. Doyle contends that Dr. Carter’s summarized
statement to the Texas Workforce Commission that she knew Dr.
Doyle’s termination would “hang over [us] like a whistleblower”
evinces Dr. Carter’s discriminatory intent. As noted, this
statement was made after a news article had identified Dr. Doyle as
the whistleblower. Dr. Carter’s statement shows no more than an
awareness that the termination could be perceived as being
motivated by whistle-blowing activities; a reasonable inference
cannot be made that Dr. Carter was motivated to terminate for those
reasons.

Dr. Doyle also claims that one of the reasons listed in the
termination memorandum — “Your activities outside of the autopsy
suite continue to serve only to divide the office” — references her
report to the District Attorney and Dr. Carter. In the light of
undisputed evidence of Dr. Carter’s continued discipline of Dr.
Doyle for other activities, there is insufficient evidence for a
reasonable jury to infer that Dr. Doyle’s termination would not
have occurred when it did, if not for reporting to Dr. Carter.
This is especially so considering: Dr. Doyle was terminated 18
March, directly after three other events in which Dr. Doyle
violated HCMEO policy; and Dr. Parungao, known by Dr. Brown to
have possibly reported to the District Attorney, was not terminated
or otherwise disciplined for his report.

The evidence Dr. Doyle presents does not create a sufficient
conflict, and judgment as a matter of law was, therefore,
appropriate. As quoted earlier: “[T]he [marginal or borderline
employee] ought not be able, by engaging in [protected] conduct, to
prevent his employer from assessing his performance record and
reaching a[n adverse] decision …, simply because the protected
conduct makes the employer more certain of the correctness of its
decision”. Doyle, 429 U.S. at 286.
III.
For the foregoing reasons, the judgment is
AFFIRMED.