Opinion issued July 27, 2006 In The Court of Appeals For The First District of Texas NO. 01-03-00678-CV __________ THE CITY OF HOUSTON, Appellant V. SAM LEVINGSTON, D.V.M., Appellee On Appeal from the 125th District Court Harris County, Texas Trial Court Cause No. 2000-24777 OPINION ON REHEARING We grant appellant’s motion for rehearing, withdraw our opinion dated February 2, 2006, and substitute this opinion in its place.2 In this Texas Whistleblower Act1 lawsuit, appellant, the City of Houston (“the City”), challenges the trial court’s judgment, rendered after a jury verdict, awarding appellee, Dr. Sam Levingston, $116,500 in past lost wages, $235,000 as the value of reinstatement to Levingston’s former position, fringe benefits and seniority rights, and $250,000 in capped compensatory damages, plus attorneys’ fees, pre- and post-judgment interest, and court costs. In three of its seven issues, the City contends that there is no evidence to support the jury’s findings that Levingston, in good faith, reported a violation of law to an appropriate law enforcement authority, that the termination of Levingston’s employment was caused by the report, and the jury’s award of mental-anguish damages. In its remaining issues, the City contends that the trial court erred in awarding Levingston the monetary value of reinstatement to his former position without subjecting that award to the applicable statutory damages cap; awarding Levingston prejudgment interest on his capped compensatory damages; applying a “multiplier” to its award of Levingston’s attorneys’ fees; denying the City’s request to include a separate question in the jury charge regarding the City’s affirmative defense; and denying the City’s pretrial motion to strike Levingston’s untimely request for a 1 See TEX. GOV’T CODE ANN. §§ 554.001–.010 (Vernon 2004).3 jury trial. We modify the trial court’s judgment to provide for the award of prejudgment interest on the amount of $116,500 rather than on the amount of $365,500. We affirm the judgment of the trial court in all other respects. Factual and Procedural Background Dr. Levingston served the City as a senior veterinarian in its Bureau of Animal Regulation and Care (“BARC”), a division of the City’s Department of Health and Human Services, from September 8, 1992 until his employment was terminated on March 23, 2000. Prior to his termination, Levingston had over 40 years of experience as a licensed veterinarian. BARC, previously known as “the City of Houston Rabies Control Facility,” has the responsibility for the control of rabies within the City.2 The record reveals, moreover, that “BARC has law enforcement responsibilities in animal-related issues within the City.” The BARC facility intakes approximately 28,000 to 30,000 animals in a given year. Out of these animals, approximately 25,000 are euthanized by BARC, and another 120 to 140 animals are dead on arrival or die of natural or unexplained causes while in BARC’s care. 2 HOUSTON, TEX., ORDINANCES ch. 6, art. I, § 6-1(a).4 At trial, Levingston testified that during his employment with BARC, he saw “a number of things” occurring at BARC’s facility that “rose to the level of animal abuse.” Among other problems, he noted that individual pens in the BARC kennel were too small and overcrowded and that this caused animals to fight over food. He also noted that when the air conditioners on BARC trucks did not work, animals would arrive at the BARC facility heated, exhausted, and sometimes dead. Levingston stated that BARC kennel attendants, in a cruel and inhumane manner, held animals in a dip tank with their heads under water “to teach them a lesson.” He saw BARC kennel attendants jerk dogs off of BARC trucks onto a concrete floor, which would “create painful breaks.” Levingston also saw BARC kennel attendants pitch puppies “like a baseball from the truck to the holding pen, which had a concrete floor.” He explained that when mother dogs were brought into the BARC facility, their puppies, due to a “faulty floor,” would often get stuck down into a four inch drain. On one occasion, BARC kennel attendants washed three puppies down the sewer line. Levingston also stated that cats were sometimes “euthanized in burlap sacks by throwing them under the back wheels of a truck.”3 He also explained that BARC employees did not properly feed and water animals, that 3 Although Levingston did not see this happen, he did see, on at least six occasions, in the BARC freezer, burlap sacks containing animals “with crushed skull[s], bones, [and] legs.”5 they would ration food for animals scheduled to be euthanized, and that “the attitude was, ‘Well, they’re only going to be here three days, so they’ll either go home or they’ll be euthanized, so why waste the food on them?’” Levingston further testified that he reported these matters to the attention of John Nix, the Division Manager of BARC, from the time that Nix became Division Manager in September 1996 until May 21, 1999. He normally communicated his complaints to Nix by periodically leaving Nix notes written on 5-inch by 8-inch index cards. Levingston would complete an index card when he “found the abuse,” typically at the end of his workday between 4:00 and 7:00 p.m. He had to leave Nix written reports because Nix typically left the BARC facility at 2:00 p.m. on business days. Levingston explained that animal abuse at BARC grew worse after Nix became Division Manager because, unlike his predecessor, who “was in the kennel every single day,” Nix was in the kennel only “twice a month” as he walked “through to pick up a city vehicle.” Despite his complaints, Levingston “never saw a change” at BARC. In May 1999, Levingston decided to handwrite a formal letter outlining his complaints to Nix because his complaints about animal abuse were being “ignored.” Levingston was concerned that his written reports “probably had been thrown away without any action taken, so [he] wanted this letter typed and placed in [his] file and to6 show evidence of the inhumane treatment.” When Levingston spoke with his direct supervisor, Dr. Adel Hanna, who was also a senior veterinarian at BARC, about Nix’s failure to respond to his complaints, Hanna told him that “Nix was getting kind of irritated because
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