Chapter § 7-5 § 554.004. Burden of Proof; Assumption; Affirmative Defense

• Jurisdiction: United States

7-5 § 554.004. Burden of Proof; Assumption; Affirmative Defense

(a) A public employee who sues under this chapter has the burden of proof, 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.

(b) It is an affirmative defense to a suit under this chapter that 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 this chapter of a violation of law.

7-5:1 Commentary

• City of Fort Worth v. Zimlich, 29 S.W.3d 62 (Tex. 2000) (mere fact that plaintiff engaged in protected conduct cannot, by itself, establish causation; it may, however, support inference if combined with other evidence, such as a false reason for employer's actions or hostility by decision makers toward employee's protected activity).

The Fifth Circuit has followed Zimlich in reversing a summary judgment for an employer.

• Bosque v. Starr Cty., 630 F. App'x 300 (5th Cir. 2015) (holding that circumstantial evidence is sufficient to create a genuine issue of material fact and thus defeat summary judgment motion and can include employer's knowledge of report of illegal conduct, evidence that stated reason for adverse employment action is false, and temporal proximity between report and adverse action).

An illuminating application of this defense is seen in the following case in which an appeals court affirmed summary judgment for an employer.

• Lopez v. Tarrant Cty, No. 02-13-00194, 2015 Tex. App. LEXIS 8899 (Tex. App.—Fort Worth Aug. 25, 2015) (court states that the defense imposes a but-for causal nexus requirement; as such, summary judgment was warranted for employer when plaintiff did not deny that she engaged in some of the unprofessional conduct for which she was terminated; with court holding "if the employee's (protected activity) would not have been

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