City of Killeen v. Barbara Gonzales, 03-14-00384-CV

Barbara Gonzales, appellee, moved for rehearing in City of Killeen v. Gonzales after a prior opinion issued November 3, 2015.
Gonzales challenges the trial court’s dismissal of her whistleblower- retaliation claim via a plea to the jurisdiction and seeks to have a jury resolve contested evidence.
Gonzales presented circumstantial evidence supporting causation: knowledge of the report, negative attitude toward the report, policy failures, disparate treatment, and alleged false reasons for termination.
The court previously discounted or weighed the circumstantial evidence and applied a narrowed standard for ‘similarly situated’ employees in a whistleblower context.
Gonzales urged that the Personnel Review Board’s determination that termination was a disproportionate penalty supported an inference of pretext and causation, which the court allegedly undervalued.
The movant asks the court to withdraw its prior opinion and affirm the trial court’s dismissal, allowing the case to proceed to jury consideration.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Incorrect standard for causation and similarly situated	Gonzales contends the court applied too narrow a standard for similarly situated coworkers.	City of Killeen argues the court properly applied the appropriate standard for whistleblower cases.	Court should reconsider standard and weigh circumstantial evidence for causation

Continental Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444 (Tex. 1996) (circumstantial evidence can establish causation)
City of Fort Worth v. Zimlich, 29 S.W.3d 62 (Tex. 2000) (circumstantial evidence supports causation; multiple factors)
Tex. Dept. of Parks and Wildlife v. Miranda, 133 S.W.3d 217 (Tex. 2004) (plea to the jurisdiction favors nonmovant with favorable inferences)
Haverda v. Hays County, 723 F.3d 586 (5th Cir. 2013) (summary judgment in First Amendment retaliation cases is disfavored)
Beattie v. Madison Cnty. Sch. Dist., 254 F.3d 595 (5th Cir. 2001) (motivation evidence should be for the jury in retaliation cases)
Tolan v. Cotton, 134 S. Ct. 1861 (Supreme Court 2014) (all evidence viewed in the light most favorable to the nonmovant)
Howard v. Texas Dept. of Assistive and Rehabilitative Services, 182 S.W.3d 393 (Tex. App.—Austin 2005) (liberal construction in whistleblower enforcement)
Gold v. City of College Station, 40 S.W.3d 637 (Tex. App.—Houston [1st Dist.] 2001) (broader consideration of comparators in whistleblower contexts)
City of Fort Worth v. Johnson, 105 S.W.3d 154 (Tex. App.—Waco 2003) (considering broader group of similarly situated employees)
Town of Flower Mound v. Teague, 111 S.W.3d 742 (Tex. App.—Fort Worth 2003) (not limited to near-identical coworkers in evaluating whistleblower claims)
Yselta Indep. Sch. Dist. v. Monarrez, 177 S.W.3d 915 (Tex. 2005) (relevant to standard for whistleblower evidence)