Briefs in Support of Summary Judgment Motion

8/6/2019 Briefs in Support of Summary Judgment Motion

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City of Dallas Brief In Support of Its Motion For Summary JudgmentCivil Action No. 3:09-Cv-1452-O-BH Page i

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

UNITED STATES OF AMERICA and

THE STATE OF TEXAS ex rel. DOUG MOORE, et al.,

Plaintiffs, Civil Action No. 3:09-CV-1452-O-BH

ECF

v.

CITY OF DALLAS, TEXAS, et al.,

Defendants.

CITY OF DALLAS BRIEF IN SUPPORT OF ITS MOTION FOR

SUMMARY JUDGMENT

Respectfully submitted,

s/ Amy I. MesserAmy I. Messer

Texas State Bar No. 00790705

Assistant City [email protected] (E-mail)

Janice S. Moss

Texas State Bar No. 14586050

Assistant City [email protected] (E-mail)

Dallas City Hall, 7BN

1500 Marilla StreetDallas, Texas 75201

Telephone: 214.670.3519

Telecopier: 214.670.0622Attorneys for Defendant City of Dallas, Texas

Case 3:09-cv-01452-O -BH Document 112 Filed 07/29/11 Page 1 of 25 PageID 1490


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City of Dallas Brief In Support of Its Motion For Summary JudgmentCivil Action No. 3:09-Cv-1452-O-BH Page ii

TABLE OF CONTENTS

TABLE OF AUTHORITIES ......................................................................................................... iiiI. GROUNDS FOR SUMMARY JUDGMENT .................................................................... 1II. ARGUMENT AND AUTHORITIES ................................................................................. 3

A. Summary Judgment Standard ................................................................................. 3B. The Federal False Claims Act. ................................................................................ 3

1. The Citys legitimate, nonretaliatory reasons for discharging Moore ........ 5C. Texas Whistleblower Act. ..................................................................................... 10D. Texas Medicaid Fraud Prevention Act Retaliation ............................................... 16

III. CONCLUSION ................................................................................................................. 19



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City of Dallas Brief In Support of Its Motion For Summary JudgmentCivil Action No. 3:09-Cv-1452-O-BH Page iii

TABLE OF AUTHORITIES

CasesAnderson v. Liberty Lobby, Inc.,

477 U.S. 242 (1986) .................................................................................................................. 3

Bechtel Const. Co. v. Secretary of Labor,

50 F.3d 926 (11th Cir. 1995) .................................................................................................... 4

Castleberry Indep. Sch. Dist. v. Doe,

35 S.W.3d 777 (Tex.App.Fort Worth 2001) ....................................................................... 11

Celotex Corp. v. Catrett,

477 U.S. 317 (1986) .................................................................................................................. 3

City of Fort Worth v. Johnson

105 S.W.3d 154 (Tex. App.-Waco 2003, no pet.) ................................................................. 15

City of Fort Worth v. Zimlich, 29 S.W.3d 62 (Tex . 2000) ........................................................... 15

Eberhardt v. Integrated Design & Constr., Inc.,167 F.3d 861 (4th Cir.1999) ..................................................................................................... 3

Forsyth v. Barr,19 F.3d 1527 (5th Cir. 1994) .................................................................................................... 3

Graham County Soil & Water Conservation Dist. v. U.S. ex rel. Wilson,

545 U.S. 409 (2005) ................................................................................................................ 17

Harris County v. Lawson,

122 S.W.3d 276 (Tex. App.-Houston [1st Dist.] 2003, pet. denied) ...................................... 14

Lastor v. City of Hearne,

810 S.W.2d 742 (Tex.App. Waco 1991, no pet.)................................................................ 10

Mann v. Olsten Certified Healthcare Corp.,

49 F. Supp. 2d 1307 (M.D. Ala. 1999) ..................................................................................... 4

Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp.,

475 U.S. 574 (1986) .................................................................................................................. 3

McCoy v. City of Shreveport,492 F.3d 551 (5th Cir.2007) ........................................................................................... 4, 5, 10

Med. Arts Hosp. v. Robison,

216 S.W.3d 38 (Tex.App. Eastland 2006, no pet.) ............................................................. 11



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City of Dallas Brief In Support of Its Motion For Summary JudgmentCivil Action No. 3:09-Cv-1452-O-BH Page iv

Rachid v. Jack in the Box, Inc.,

376 F.3d 305 (5th Cir. 2004) ................................................................................................ 4, 5

Robertson v. Bell Helicopter Textron, Inc.,

32 F.3d 948 (5th Cir. 1994) .................................................................................................... 18

Sealed Appellant I v. Sealed Appellee I,

156 F. Appx 630 (5th Cir. 2005) ........................................................................................... 18

Smith v. Xerox Corp.,602 F.3d 320 (5th Cir. 2010) .................................................................................................... 4

Tex. Ass'n of Bus. v. Tex. Air Control Bd.,

852 S.W.2d 440 (Tex. 1993) ................................................................................................... 14

Tex. Dep't of Human Servs. v. Hinds,

904 S.W.2d 629 (Tex. 1995) ................................................................................................... 15

Tex. Dept. of Cmty. Affairs v. Burdine,

450 U.S. 248 (1981) .................................................................................................................. 4

Tharling v. City of Port Lavaca,

329 F.3d 422 (5th Cir. 2003) .................................................................................................. 16

United States ex rel. McKenzie v. BellSouth Telecomm., Inc.,

123 F.3d 935 (6th Cir. 1997) .................................................................................................... 3

United States ex rel. Smart v. Christus Health,626 F.Supp.2d 647 (S.D. Tex. 2009) ................................................................................ 17, 18

United States ex rel. Wall v. Vista Hospice Care, Inc.,Civil No. 3:07-CV-604-M, 2011 WL 816632 (N.D. Tex. March 9, 2011) ............................ 18

United States ex rel. Yesudian v. Howard Univ.,

153 F.3d 731 (D.C. Cir. 1998) .................................................................................................. 3

StatutesTex, Human Res, Code 36.155(a) .............................................................................................. 16

Tex. Govt Code 554.002(a) ...................................................................................................... 10

Tex. Govt Code 554.002(b) ...................................................................................................... 11

Tex. Govt Code 554.004(a) ...................................................................................................... 15

Tex. Govt Code 554.005..................................................................................................... 11, 15

Tex. Govt Code 554.006........................................................................................................... 11



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City of Dallas Brief In Support of Its Motion For Summary JudgmentCivil Action No. 3:09-Cv-1452-O-BH Page v

Tex. Govt Code. 554.006(a) ..................................................................................................... 11

Tex. Gov't Code 554.001 ........................................................................................................... 15

Tex. Hum. Res. Code 36.115 ..................................................................................................... 18

RulesN.D. Tex. Loc. R. LR 15.1(b) ....................................................................................................... 17



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City of Dallas Brief In Support of Its Motion For Summary JudgmentCivil Action No. 3:09-cv-1452-O-BH Page 1

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

UNITED STATES OF AMERICA and

THE STATE OF TEXAS ex rel. DOUG MOORE, et al.,

Plaintiffs, Civil Action No. 3:09-CV-1452-O-BH

ECF

v.

CITY OF DALLAS, TEXAS, et al.,

Defendants.

TO THE HONORABLE U.S. MAGISTRATE JUDGE IRMA CARRILLO RAMIREZ:

Defendant, City of Dallas, (the City or Defendant) files this brief in support of its

motion for summary judgment, pursuant to Federal Rule of Civil Procedure 56 and Northern

District of Texas Local Civil Rules LR 56.156.6. The City is entitled to judgment as a matter of

law on Plaintiff Douglas Moores (hereinafter Moore or Plaintiff or relator) claims of

retaliation under the False Claims Act (FCA), the Texas Medicaid Fraud Prevention Act

(TMFPA), and the Texas Whistleblower Act (TWA) because the pleadings, depositions and

discovery responses on file in this case, together with the evidence included in the accompanying

appendix, establish that no genuine issues of material fact exist for trial.

I. GROUNDS FOR SUMMARY JUDGMENT

The City hired Plaintiff as an Assistant City Auditor III and assigned him to work in

the Fraud Waste and Abuse section of the City Auditors Office in February 2009. Moore was

assigned to the team working on the Emergency Ambulance Fees Audit (the Audit). Moores

involvement in the Audit was to determine if the City was billing ambulance transports properly.

Moore participated in an April 7, 2009 Entrance Conference which was held with the Emergency

Ambulance Fees Audit team, Dallas Fire Rescue (DFR), the Citys Office of Financial



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Services and Special Collections. Shortly after this meeting, in May 2009, Moore began to

contact attorneys, and hired his current attorneys to assist him in filing a false claim act lawsuit

against the City based upon DFRs ambulance services billing practices. Despite Moores

obvious financial interest in the outcome of the audit to which he was assigned, Moore

repeatedly failed to disclose that he had a conflict of interest that impaired his impartiality and

the integrity of the Audit. In fact, Moore intentionally continued to conceal his financial interest

in the subject matter of the Audit even after he filed this FCA lawsuit.

Around November 24, 2009, City Auditor Craig Kinton (Kinton) learned that Moore

had filed a False Claims Act lawsuit alleging that the City was fraudulently billing Medicare and

Medicaid by upcoding and billing all ambulance transports at the Advanced Life Support

(ALS) level. Kinton learned that Moore filed this lawsuit under seal on August 5, 2009, while

Moore remained assigned to, and was actively working on, the Audit. Kinton terminated

Moores employment with the City on December 2, 2009 because Moore had violated his

fiduciary responsibilities to the City and the City Auditors Office, and had violated several

critical Generally Accepted Government Auditing Standards (GAGAS) and numerous City

Auditors Office policies and procedures.

In this lawsuit, Moore alleges the City retaliated against him by terminating his

employment. Moore brings his claims pursuant to the Federal False Claims Act, the Texas

Medicaid Fraud Prevention Act, and the Texas Whistleblower Act. The City moves for

summary judgment based upon its ability to negate at least one element of each of Plaintiffs

statutory claims and for to failure timely file his retaliation claims under the TMFPA and Texas

Whistleblower Act. Moores underlying fraud claims under the FCA have been settled, and are

no longer in issue in this civil action. (doc. 94.)



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II. ARGUMENT AND AUTHORITIES

A. Summary Judgment Standard

The City is entitled to summary judgment on all of Moores claims because there are no

genuine issues of material fact as to at least one essential element of each of Moores claims.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). The City, as the moving party, has

the initial burden of showing that there is no genuine issue of material fact. Id. at 256. The City

may discharge this burden by pointing out the absence of evidence to support one or more

essential elements of Moores claims since a complete failure of proof concerning an essential

element of the nonmoving party's case necessarily renders all other facts immaterial. Celotex

Corp. v. Catrett, 477 U.S. 317, 323-25 (1986).

Once the City has carried its burden, Moore must do more than merely show that there is

some metaphysical doubt as to the material facts. Matsushita Elec. Indus. Co., Ltd. v. Zenith

Radio Corp., 475 U.S. 574, 586 (1986). Moore may not rest on mere allegations or denials of

pleading, but must set forth specific facts showing a genuine issue for trial. Anderson, 477 U.S.

at 248. To meet this burden, Moore must identify specific evidence in the record and articulate

how the specific evidence supports his claims. Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir.

1994). The City is entitled to summary judgment because Moore cannot establish at least one

essential element on each of his claims.

B. The Federal False Claims Act.

Courts require that a plaintiff seeking relief under 31 U.S.C. 3730(h) of the FCA prove

that he engaged in protected conduct and that the defendant retaliated against him because of that

protected conduct. Eberhardt v. Integrated Design & Constr., Inc., 167 F.3d 861, 866 (4th

Cir.1999); United States ex rel. Yesudian v. Howard Univ., 153 F.3d 731, 736 (D.C. Cir.1998);

United States ex rel. McKenzie v. BellSouth Telecomm., Inc., 123 F.3d 935 (6th Cir. 1997).



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To show a prima facie case of retaliation, the plaintiff must prove that: (1) the employee

engaged in protected activity, (2) the employee suffered adverse action, and (3) there is an

inference of causation between the protected activity and the adverse action. Mann v. Olsten

Certified Healthcare Corp., 49 F. Supp. 2d 1307 (M.D. Ala. 1999), citingBechtel Const. Co. v.

Secretary of Labor, 50 F.3d 926 (11th Cir. 1995). Moores evidence cannot clearly demonstrate

that the undisputed facts conclusively establish each essential element of his claim as required.

If Moore establishes a prima facie case, under the traditional McDonnell Douglas

approach, the burden then shifts to the City to rebut the presumption by producing sufficient

evidence to raise a genuine issue of fact as to whether the employer took retaliatory acts against

the employee. Mann, 49 F. Supp. 2d at 1317, citing Tex. Dept. of Cmty. Affairs v. Burdine, 450

U.S. 248, 254 (1981)); McCoy v. City of Shreveport, 492 F.3d 551, 556 (5th Cir. 2007). The

City can meet this burden of production by articulating a legitimate, nonretaliatory reason for the

employment decision. The reason should be clear, reasonably specific, and worthy of credence.

This burden is one of production only and does not have to persuade the court that it was actually

motivated by the proffered reason in order to prevail. McCoy, 492 F.3d at 556.

The burden then shifts back to the plaintiff to show either: (1) that the defendant's reason

is not true, but is instead a pretext for retaliation (pretext alternative); or (2) that the defendant's

reason, while true, is only one of the reasons for its conduct, and another motivating factor is

the plaintiffs protected activity (mixed-motive alternative). Rachid v. Jack in the Box, Inc.,

376 F.3d 305, 312 (5th Cir. 2004); Smith v. Xerox Corp., 602 F.3d 320, 326 (5th Cir. 2010).

Using the pretext analysis, the plaintiff bears the ultimate burden of proving that the employer's

proffered reason is not true but instead is a pretext for the real . . . retaliatory purpose. To carry

this burden, the plaintiff must rebut each . . . nonretaliatory reason articulated by the employer.



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McCoy, 492 F.3d at 556. Under the mixed-motive alternative, if the plaintiff shows that the

plaintiff's protected activity was a motivating factor, then the burden shifts to the employer to

show that the adverse employment decision would have been made regardless of the retaliatory

animus. Rachid, 376 F.3d at 312.

1. The Citys legitimate, nonretaliatory reasons for discharging Moore

Moore alleges the City retaliated against him by terminating his employment

immediately after receiving notice that Relator had notified the government, including the United

States Attorney Generals office of Defendants fraudulent conduct in defrauding the Medicare

program and Texas Medicaid program, in furtherance of a federal False Claims Act action.

(doc. 10 at 92.)

City Auditor Craig Kinton enumerated several legitimate nonretaliatory reasons for

discharging Moores employment with the City. Kinton testified during his oral deposition that

he discharged Moore from employment with the City Auditors Office because:

[Moore] had a fiduciary duty to the City and to my office, and he violated

that. And it came to my attention that he had violated that and that in the

process he had violated government auditing standards and my officespolicies and procedures to ensure our compliance with those standards and

to protect the integrity of the office.

(DAPPX at 259, Kinton Depo. at 131:19-132:1.)

Kinton did not terminate Moores employment with the City because Moore filed an

FCA lawsuit. (DAPPX 179, Kinton Declar. 14.) Rather, Kintons reasons include that Moore

violated his fiduciary responsibility by violating multiple unambiguous Generally Accepted

Government Auditing Standards, as promogulated by the Comptroller General, U.S. Government

Accountability Office. (DAPPX at 178, Kinton Declar. 12; DAPPX at 191-219, Kinton

exhibits 4 and 5.) Further, Moore violated the GAGAS ethical principles when, as a

member of the ambulance fee audit team, Moore failed to maintain his integrity, objectivity and



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independence in discharging his responsibilities. (DAPPX at 178, Kinton Declar. 12a.) Also,

Moore violated independence standards by creating a significant personal financial interest in the

subject of the Audit which could lead objective third parties to conclude that Moore could not

maintain his objectivity. (DAPPX at 178, Kinton Declar. 12b; DAPPX at 303, Moore Depo. at

132:4-17.)

Kintons reasons for terminating Moores employment also include Moores violation of

numerous City Auditor Office policies and procedures. Those violations include:

(1)Section 1.4 Vision, Mission and Statement of Values - Moore violated the missionstatement by impairing his independence and failing to report this fact. This raised

significant concerns about Moores objectivity, professionalism, respect for his duties,

and responsibilities and integrity. (DAPPX at 178, Kinton Declar. 13a, DAPPX at 220-

223, Kinton exhibit 6.)

(2)Section 2.1 Generally Accepted Government Auditing Standards Moore violatedseveral GAGAS including those related to ethics, independence, professional judgment,

and reporting. The Auditors Office has established policies and procedures specifically

to address the Ethical Principles and the General Standards to ensure awareness and

compliance with GAGAS. City Auditor Officer personnel are responsible for knowing

the requirements contained in GAGAS and for complying with those requirements in the

performance of their work. (DAPPX at 178, Kinton Declar. 13b; DAPPX at 224-230,

Kinton exhibit 7.)

(3)Section 2.2 Ethical Principles Moore violated these ethical principles of serving thepublic interest by putting his own interest ahead of the Citys interest. Moore violated

these ethical principles of integrity by acting in his own self interest and by not reporting



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his impaired independence and obvious conflict of interest. Moore violated these ethical

principles of objectivity because he failed to maintain his independence and the

appearance of objectivity. Moore violated these ethical principles when he improperly

used the Citys and its citizens sensitive information, and when he used his position and

information obtained through job duties for personal gain. (DAPPX at 178-179, Kinton

Declar. 13c; DAPPX at 230-234, Kinton exhibit 8.)

(4)Section 2.3 Assessing and Certifying Auditor Independence in all matters relating to theaudit work the individual auditor must be free from personal, external, and organizational

impairments to independence, and must avoid the appearance of such impairments to

independence. Moore failed to report his impaired independence, falsely certified his

independence in audit working papers documentation, and falsely signed Auditors

Office annual checklists designed to ensure professional independence even after Moore

knew that he had impaired his independence. (DAPPX at 179, Kinton Declar. 13d;

DAPPX at 235-244, Kinton exhibit 9.)

(5) Section 6.7 Release of Official Information and External Contacts Related to the CityAuditors Office Moore released information about the Audit without the offices

approval. (DAPPX at 179, Kinton Declar. 13e; DAPPX at 245-249, Kinton exhibit

10.)

(6)Section 6.9 Problem Resolution, Gifts, Dress Code and Personal Business Moore had aprofessional responsibility to bring to the City Auditors attention any disagreement or

concern that he had with how the Audit was being handled, which he failed to do. Moore

had an additional responsibility to complete a form to disassociate himself with the Audit



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if he disagreed with how an issue was being handled, which he also failed to do.

(DAPPX at 179, Kinton Declar. 13f; DAPPX at 250-255, Kinton exhibit 11.)

In an attempt to elicit testimony that the City terminated Moore for unlawful, retaliatory

reasons, Moores attorney specifically asked Kinton the real reason for terminating Moore,

Kintons response was the following:

Q. So again, given the time period, given what you said before -- the real

reason he was fired was because he filed the lawsuit? I mean, that's the

bottom line, isn't it?

A. No, thats not the bottom line. The real reason that he was fired wasbecause he had a fiduciary responsibility to me, to the City and that he had

made a significant breach of government auditing standards and my

internal policies and procedures. In my 30-year career, I had never seen a

breach, in my opinion, that was as egregious as these, and that's the reasonI terminated my employment relationship with Mr. Moore.

(DAPPX at 260-261, Kinton Depo. at 165:25-166:11.)

Kinton was the sole decision maker regarding Moores termination of employment.

(DAPPX at 179, Kinton Declar. 14.) Moore will attempt to use former Mayor Tom Lepperts

testimony that Kinton was angry to support Moores speculation that his termination was due to

the filing of a lawsuit. However, Leppert testified clearly that Kinton expressed frustration,

concern and anger over Moores ethical breaches and violations of accepted standards of

professional conduct. (DAPPX at 459-461, Leppert Depo. at 12:18-22, 16:5-18, 17:9-17.)

Leppert testified that Kinton advised him he wanted to terminate Moore because of the

incredible breach of ethics. (DAPPX at 462, Leppert Depo. at 25:7-14.) Leppert further

testified that he did not make a recommendation with regard to the specific course of action the

City should take with regard to Moore. (DAPPX at 463, Leppert Depo. at 28:19-21.) Lepperts

testimony simply does not support a contention that Kinton discharged Moore because of the

filing of the FCA lawsuit.



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Moore contends that government auditing standards did not apply to him because he was

assigned to be a fraud waste abuse investigator, not an auditor. (DAPPX at 302, Moore Depo. at

126:20-128:4.) Moore is incorrect. The Auditors Office policies and procedures explicitly state

that GAGAS professional standards applied to both audit and non-audit services. (DAPPX at

407, Moore Depo. exhibit 15.) The Auditors Office annual checklists, which Moore was

required to complete and verify and which imposed upon Moore a continuing obligation to

revise should an impairment arise make clear that the GAGAS standards applied to Moore.

(DAPPX at 389-394, Moore Depo. exhibit 13.) There is absolutely no evidence that GAGAS

standards and the Auditors internal ethical policies and procedures did not apply to Moore, and

no rational juror could believe that those basic standards did not apply to Moore.

Moores own testimony supports Kintons assertions that Moore was terminated for

breaching GAGAS standards and the City Auditors internal policies and procedures. Moore

was questioned about annual check lists to ensure independence against personal and external

impairments. Moore testified he signed these documents on February 27, 2009 and on October

2, 2009. (DAPPX at 302-303, Moore Depo. at 129:4-130:21; DAPPX 396, exhibit 13.)

Moore admitted he had a financial interest that was significant and material in the ambulance

billing audit, and he testified that he did not indicate the impairment because he was providing

information to government and thought that by saying yes it would draw more questions,

including his termination for providing information to the government. (DAPPX at 303, Moore

Depo. at 130:20-131:3.) Moore also admitted that he falsified his answers regarding impairment

on his own with no instruction from anyone how to answer the impairment checklist. (DAPPX

at 324, Moore Depo. at 267:5-268:11.) Moore testified that he did not consider the financial

reward under the False Claims Act an impairment because he was still doing his job. (DAPPX at



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303, Moore Depo. at 131:18-132:9.) Moore did agree that his financial interest in the ambulance

audit may have the appearance of impairment to some. (DAPPX at 303, Moore Depo. at 132:13-

17.) On June 16, 2009 Moore electronically acknowledged the annual independence checklist

regarding impairment specifically for the ambulance audit and indicated he had no impairment,

although this was after he had started meeting with his attorneys. (DAPPX at 304, Moore Depo.

at 134:9-135:25; DAPPX at 397-399, Moore Depo. exhibit 13.)

Moore must show that all of Kintons reasons for his termination were not true, and were

a pretext for retaliation. Moore bears the ultimate burden of proving that the employer's

proffered reason is not true but instead is a pretext for the real . . . retaliatory purpose. To carry

this burden, the plaintiff must rebut each . . . nonretaliatory reason articulated by the employer.

McCoy, 492 F.3d at 556. In order to rebut each legitimate nonretaliatory reason articulated by

the City, Moore would have to show that each reason is untrue, or not worthy of belief.

C. Texas Whistleblower Act.

The Texas Whistle Blower Act provides, [a] state or local governmental entity may not

suspend or terminate the employment of, or take other adverse personnel action against, a public

employee who in good faith reports a violation of law by the employing governmental entity or

another public employee to an appropriate law enforcement authority. Tex. Govt Code

554.002(a); see Lastor v. City of Hearne, 810 S.W.2d 742, 743 (Tex.App. Waco 1991, no

pet.). The Act further provides that, [i]n this section, a report is made to an appropriate law

enforcement authority if the authority is a part of a state or local governmental entity or of the

federal government that the employee 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. Id. 554.002(b).



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The Act also provides that, [e]xcept as provided by Section 554.006 a public employee

who seeks relief under this chapter must sue not later than the 90th day after the date on which

the alleged violation of this chapter: (1) occurred; or (2) was discovered by the employee through

reasonable diligence. Tex. Govt Code 554.005. Also, section 554.006 states that [a] public

employee must initiate action under the grievance or appeal procedures of the employing state or

local governmental entity relating to suspension or termination of employment or adverse

personnel action before suing under this chapter. Tex. Govt Code. 554.006(a). Thus, [t]he

Whistleblower Act requires a claimant to timely initiate grievance or appeal procedures of the

employing state or local governmental entity relating to suspension or termination of

employment or adverse personnel action before suing. The statute provides the claimant with the

discretion to exhaust any applicable grievance proceedings prior to filing suit. Med. Arts Hosp.

v. Robison, 216 S.W.3d 38, 40 (Tex.App. Eastland 2006, no pet.). The 90 day limitations

period imposed by 554.005 is tolled during the time the employee is following the grievance

procedure. Castleberry Indep. Sch. Dist. v. Doe, 35 S.W.3d 777, 781 (Tex.App.Fort Worth

2001, pet. dismd w.o.j.)(abrogated on other grounds by Texas A&M Univ. Sys. v. Koseoglu, 233

S.W. 3d 835 (Tex. 2007)).

In his first amended complaint, Moore does not allege a cause of action pursuant to the

Texas Whistleblower Act. (doc. 10.) Moore did not file his second amended complaint within

the 90 day period prescribed by the Texas Whistleblower Act. Moore was terminated on

December 2, 2009. On January 25, 2010, Moore sent a letter to the City seeking to file a

grievance with the City. (DAPPX at 172-174.) The City responded to Moores grievance on

February 24, 2010, notifying Moore that there was no grievance process available. (DAPPX at

175.) Moore failed to meet the statutory requirement of filing suit as a matter of law because



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Moore did not file his second amended complaint adding the Texas Whistleblower Act claim

within 90 days after exhausting the grievance procedure.

The Magistrate Judges June 18, 2010 Memorandum Opinion and Order correctly reflects

that [o]n March 24, 2010, the relator requested leave to file a second amended complaint to

include the Citys violation of the Texas Government Code. . . . The Court granted his request

for leave to file the second amended complaint on April 1, 2010. (doc. 100 at 1-2.) Moore did

not file his second amended complaint on or around April 1, 2010. The Courts August 31, 2010

electronic order made it abundantly clear that, although the Court had granted the Moores

motion for leave to file his second amended complaint, the complaint had not been filed by that

date. (doc. 19.) On August 31, 2010, 152 days had passed since the Courts April 1, 2010 order

granting Moore leave to file his second amended complaint. Moore clearly exceeded the 90 days

allowed by the statute to file his claim. Logically, Moore had not filed his second amended

complaint at any time from April 1, 2010 to August 31, 2010; otherwise United States District

Judge OConnor would not have ordered Moore to file his second amended complaint on or

before Friday, September 3, 2010. (doc. 19.)

Furthermore, Northern District of Texas Local Rule LR 15.1(b) provides that when a

party files by electronic means a motion for leave to file an amended pleading, the party must

attach the proposed amended pleading to the motion as an exhibit. If leave to amend is granted,

the party must then electronically file the amended pleading, subject to restrictions and

requirements of the district clerks ECF Administrative Procedures manual. Here, Moore did not

comply with the local rule and electronically file his second amended complaint before August

31, 2010. (doc. 19.) Yet, despite all of the orders indicating that the second amended complaint



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had not been filed, Moores second amended complaint inexplicably bears a file mark date of

April 1, 2010. (doc. 20.)

In addition to the irregular, unexplained, and inexplicable retroactive file-marking of

Moores second amended complaint, Moore served to the City a second amended complaint that

is vastly different than the ECF document that is presently file-marked as Moores second

amended complaint. On September 9, 2010 Moore served to the City a copy, not file marked

with the usual ECF information at the top of each page, of a second amended complaint which

included a page that reflected that the document had been received by the clerk of the U.S.

District Court Northern District of Texas on March 24, 2010. (DAPPX at 5.) The second

amended complaint served on the City contained 128 pages. (DAPPX at 4-132.) However, the

second amended complaint on file with this Court comprises only 36 pages. (doc. 20.) The

second amended complaint served to the City was signed by Loren Jacobson, a Waters Kraus

attorney, and Maro Bush, a Frank, Haron, Weiner and Navarro attorney. (DAPPX at 28.) In

contrast, the second amended complaint on file with this Court is signed by only one attorney.

(doc. 20.)

On May 11, 2010 the Court ordered the amended complaint to be unsealed and served on

the defendants in accordance with Fed. R. Civ. P. 4. (doc. 18.) Moore did not comply with this

order. Moore clearly did not comply with Fed. R. Civ. P. 4 (b) which requires that, on or after

filing the complaint, the plaintiff may present a summons to the clerk for signature . . . and in

this case the complaint that was served on the City was not filed and was not the same document

now on file with the court as Plaintiffs second amended complaint.

Then, on June 21, 2011, Moore produced a file-marked copy of his second amended

complaint as part of the appendix to his summary judgment reply brief responding to the Citys



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argument that the Texas Whistleblower Act claim was not contained in the live pleadings. Prior

to that filing, the City had never seen, been granted access on the ECF docket to, or been served

with, this filed-marked document. Yet, the file mark on this complaint was April 1, 2010, and

doc. 20 had been unsealed with the following notation: Second Amended Complaint pursuant

to order dated 8/31/2010 filed by Douglas Moore (svc) File date modified per chambers.

Modified on 9/2/2010 (dnc). Security restrictions removed on 6/21/11 per Document 26 (order).

(gmg) (Entered:09/02/2010). (doc. 20.)

In light of these facts, the City asserts that Moores refusal to timely file his second

amended complaint, even after the court ordered him to do so at least twice, constitute a failure

to comply with the statutory prerequisites to proceed with his claim under the Texas

Whistleblower Act. (doc. 18, 19.) Because of Moores failure to timely file his complaint, this

Court lacks jurisdiction over this claim. The City has affirmatively pled that any of Moores

claims outside the applicable statute of limitations are time barred. (doc. 51 at 11.) Because

Moore failed to comply with the statutory prerequisites to filing suit under the Texas

Whistleblower Act, the Citys governmental immunity has not been waived. In fact, subject

matter jurisdiction is a question of law and cannot be waived. Tex. Ass'n of Bus. v. Tex. Air

Control Bd., 852 S.W.2d 440, 445, (Tex. 1993); Harris County v. Lawson, 122 S.W.3d 276, 279

(Tex. App.-Houston [1st Dist.] 2003, pet. denied). In the absence of a waiver of governmental

immunity, a court has no jurisdiction to entertain a suit against a governmental unit. Lawson,

122 S.W.3d at 279. When a trial court learns that it lacks jurisdiction to hear a claim, the court

must dismiss the cause and refrain from rendering a judgment on the merits. Id.

Moore failed to comply with Texas Government Code 554.005 which requires a public

employee to sue not later than 90 days after the date on which the alleged violation occurred.



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Tex. Gov't Code 554.005 (Vernon 2004). Therefore, this Court does not have subject-matter

jurisdiction over Moores Texas Whistleblower Act retaliation claim as a matter of law and must

dismiss that claim.

Alternatively, and solely for the sake of completeness, the City will address this claim on

its merits. A governmental entity is liable for damages under the Texas Whistleblower Act if it

discriminates against a public employee who reports a violation of the law. Tex. Govt Code

554.001 (Vernon 2004.) To show causation, a public employee must demonstrate that after

he or she reported a violation of the law 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); Tex. Dept of Human Servs. v. Hinds, 904

S.W.2d 629, 633 (Tex. 1995). Moore cannot conclusively establish each essential element of

this claim.

The employee must establish a but for causal connection between the reported violation

of law and the employer's actions. City of Fort Worth v. Johnson, 105 S.W.3d 154, 163 (Tex.

App.Waco 2003, no pet.). Moore claims the pertinent adverse personnel action was taken

within 90 days of his report and, therefore, the adverse personnel action is presumed, subject to

rebuttal, to be because the employee made the report. Tex. Govt Code 554.004(a). Moores

report to law enforcement was on July 21, 2009. (DAPPX at 169-171.) Moores termination,

the adverse personnel action was taken approximately 134 days later, on December 2, 2009.

As required to establish his claim, Moore has no evidence to support that he suffered

retaliation as a result of making the report. Tharling v. City of Port Lavaca, 329 F.3d 422, 428

(5th Cir. 2003). The City has set fourth its reasons for terminating Moores employment with the



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City in section B-1, above. The City Auditor, Kinton, would have terminated Moores

employment for the several valid and compelling reasons that Kinton proffered, and not because

of Moores report. Therefore, in addition to this Courts lack of subject-matter jurisdiction, the

City also is entitled to summary judgment as to this claim on its merits.

D. Texas Medicaid Fraud Prevention Act Retaliation

Texas Human Resources Code 36.155(a), commonly referred to as the Medicaid Fraud

Prevention Act, states:

A person who is discharged, demoted, suspended, threatened, harassed, or

in any other manner discriminated against in the terms of employment by

the person's employer because of a lawful act taken by the person infurtherance of an action under this subchapter, including investigation for,

initiation of, testimony for, or assistance in an action filed or to be filed

under this subchapter, is entitled to: (1) reinstatement with the sameseniority status the person would have had but for the discrimination; and

(2) not less than two times the amount of back pay, interest on the back

pay, and compensation for any special damages sustained as a result of thediscrimination, including litigation costs and reasonable attorney's fees.

In his amended complaint, Moore does not allege retaliation under this statute and he did not file

his second amended complaint within the applicable 180 day limitations period. (doc. 10.)

Moore was terminated on December 2, 2009. According to the Magistrate Judges June 18, 2010

Memorandum Opinion and Order, [o]n March 24, 2010, the relator requested leave to file a

second amended complaint to include the Citys violation of the Texas Government Code. . . .

The court granted his request for leave to file the second amended complaint on April 1, 2010.

(doc. 100 at 1-2.) Moore did not file his second amended complaint timely to meet the

limitations period for his TMFPA retaliation claim. Further, the Courts August 31, 2010

electronic order made it abundantly clear that, although the Court had granted Moores motion

for leave to file his second amended complaint, the complaint had not been filed. (doc. 19.) By

August 31, 2010, over 270 days had passed since Moores termination. Moore clearly exceeded



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the 180 days allowed to file his claim. Logically, the second amended complaint was not filed as

of August 31, 2010; otherwise United States District Judge OConnor would not have ordered

relator to file his second amended complaint on or before Friday, September 3, 2010. (doc. 19.)

Northern District Local Rule LR 15.1(b) provides that, when a party files by electronic means a

motion for leave to file an amended pleading, the party must attach the proposed amended

pleading to the motion as an exhibit. If leave to amend is granted, the party must then

electronically file the amended pleading, subject to restrictions and requirements of the ECF

Administrative Procedures manual. Relator did not comply with the local rule and electronically

file his second amended complaint before August 31, 2010.

The TMFPA does not provide a specific statute of limitations period applicable to

employment retaliation claims. The statute of limitationsfor these claims is therefore governed

by the most clearly analogous state limitation period. Graham County Soil & Water Conser-

vation Dist. v. U.S. ex rel. Wilson, 545 U.S. 409, 419 (2005) ([W]e borrow the most closely

analogous state time limit absent an expressly applicable one.) In Graham County, the Supreme

Court suggested without deciding the issue that two potentially analogous limitations periods that

may be applicable under Texas law: the two year personal injury limitations period, and the 90

day limitations period under the Texas Whistleblower Act. Id. at 417-19. However, the United

States District Court for the Southern District of Texas decided this precise issue, holding that

the 180 day limitations period applied to hospital whistleblower claims was the most analogous.

United States ex rel. Smart v. Christus Health, 626 F. Supp. 2d 647, 657-58 (S.D. Tex. 2009).

This Court recently adopted the Southern District of Texas reasoning in Christus Health, finding

that for a retaliation action under the TMFPA brought by a plaintiff in the healthcare industry,

the 180 day limitations period for a hospital whistleblower's retaliation action under the Texas



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Whistleblower Act is clearly more analogous than is the two-year limitations period for personal

injury actions in Texas. United States ex rel. Wall v. Vista Hospice Care, Inc., Civil No. 3:07-

CV-604-M, 2011 WL 816632 (N.D. Tex. March 9, 2011). Here, as in the Christus Health and

Wallcases, Moore alleges retaliation for whistleblowing in the health care industry, and both of

these courts have applied the 180 day limitations period for retaliation. Because the application

of the 180 day rule should apply in this case, Moores TMFPA retaliation claim would be barred

by statute of limitations.

Alternatively, and solely for the sake of completeness, the City will address this claim on

its merits. The TMFPA prohibits an employer from retaliation against an employee for lawful

acts done in furtherance of an action under the statute, including investigation for, initiation of,

testimony for, or assistance in an action filed or to be filed under this section. Tex. Hum. Res.

Code 36.115. To prove his claim, Moore must prove he engaged in behavior protected by this

statute; that the City knew he was engaged in protected activity; and that the City retaliated

against him because of that protected activity. Robertson v. Bell Helicopter Textron, Inc., 32

F.3d 948, 951 (5th Cir. 1994); Sealed Appellant I v. Sealed Appellee I, 156 F. Appx 630, 634

(5th Cir. 2005). Moore cannot establish each essential element of his claim as required.

Specifically, Moore has no evidence that the City retaliated against him because of

protected activity. The City has set fourth several legitimate, nonretaliatory reasons for

terminating Moores employment with the City in section B-1, above. Moore has not established

the prima facie elements of his retaliation claim under the TMFPA. Furthermore, the City has

articulated legitimate, nonretaliatory reasons for Moores termination. Therefore, summary

judgment on this claim should be granted.



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III. CONCLUSION

Moore is not entitled to relief on any of his claims because he cannot meet the burden of

proof on his retaliation claims and has failed to timely file claims. Moore is not entitled to any of

the relief requested, including attorneys fees. Therefore, summary judgment should be granted

to the City on all of Moores claims.

WHEREFORE, PREMISES CONSIDERED, the City respectfully prays that its

motion for summary judgment be granted and that this action be dismissed with prejudice; that

Moore take nothing by this suit and that the relief requested by Moore be denied; that the City

recover from Moore all reasonable attorneys fees and all costs of suit; and for such other and

further relief, general or specific, at law or in equity, to which it is justly entitled.

Respectfully submitted,

THOMAS P. PERKINS, JR.DALLAS CITY ATTORNEY

s/Amy I. Messer

Amy I. Messer

Assistant City AttorneyTexas State Bar No. [email protected]

Janice S. Moss

Assistant City Attorney

Texas State Bar No. [email protected]

1500 Marilla Street, 7CN

Dallas, Texas 75201214-670-3500

214-670-0622 Fax

Attorneys for the City of Dallas, Texas



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CERTIFICATE OF SERVICE

I hereby certify that on July 29, 2011, I electronically filed the foregoing document withthe clerk of the court of the U.S. District Court, Northern District of Texas, using the electronic

case filing system of the court. The electronic filing system sent a Notice of Electronic Filing

to the following attorneys of record who have consented in writing to accept this notice asservice of this document by electronic means:

Kyla G. Cole

Charles S. SiegelLoren Jacobson

Waters & Kraus LLP

Counsel for Plaintiff

David L. Haron

Maro E. Bush

Frank Haron WeinerCounsel for Plaintiff

D. Paul DaltonCowles & Thompson PC

Counsel for Co-Defendant Southwest General Services

William McMurrey

Joshua Bock

Jacqueline A. Garza-RothrockPatrick Hanchey

Bracewell & Giuliani

Counsel for Co-Defendant Southwest General Services

s/ Amy I. Messer


Briefs in Support of Summary Judgment Motion

Documents