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 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 postjudgment 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 2 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 3 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 4 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 to 5 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 Levingston was giving him so many cards and talking so much about the inhumane treatment of animals On May 20 1999 Levingston gave his handwritten letter which was to be dated May 21 1999 to the kennel s secretary In the letter Levingston offered suggestions for improving the operation of the facility proposed changes and noted The animals are treated inhumanely including by improper restraints a lack of water and sometimes
View Full Document
Unlocking...