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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, v. CITY OF DALLAS, TEXAS, et al., Defendants.

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

CITY OF DALLAS BRIEF IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT

Respectfully submitted,

s/ Amy I. Messer Amy I. Messer Texas State Bar No. 00790705 Assistant City Attorney amy.messer@dallascityhall.com (E-mail) Janice S. Moss Texas State Bar No. 14586050 Assistant City Attorney janice.moss@dallascityhall.com (E-mail) Dallas City Hall, 7BN 1500 Marilla Street Dallas, Texas 75201 Telephone: 214.670.3519 Telecopier: 214.670.0622 Attorneys for Defendant City of Dallas, Texas

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TABLE OF CONTENTS TABLE OF AUTHORITIES ......................................................................................................... iii I. II. GROUNDS FOR SUMMARY JUDGMENT .................................................................... 1 ARGUMENT AND AUTHORITIES ................................................................................. 3 A. B. Summary Judgment Standard ................................................................................. 3 The Federal False Claims Act. ................................................................................ 3 1. C. D. III. The Citys legitimate, nonretaliatory reasons for discharging Moore ........ 5

Texas Whistleblower Act. ..................................................................................... 10 Texas Medicaid Fraud Prevention Act Retaliation ............................................... 16

CONCLUSION ................................................................................................................. 19

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TABLE OF AUTHORITIES Cases Anderson 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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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 Statutes Tex, 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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Tex. Govt Code. 554.006(a) ..................................................................................................... 11 Tex. Gov't Code 554.001 ........................................................................................................... 15 Tex. Hum. Res. Code 36.115 ..................................................................................................... 18 Rules N.D. Tex. Loc. R. LR 15.1(b) ....................................................................................................... 17

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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, v. CITY OF DALLAS, TEXAS, et al., Defendants.

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

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. A.

ARGUMENT AND AUTHORITIES

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), citing Bechtel 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 offices policies 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 mission statement 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 220223, Kinton exhibit 6.) (2) Section 2.1 Generally Accepted Government Auditing Standards Moore violated several 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 the public 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 the audit 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 City Auditors 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 a professional 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 was because 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 reason I 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 132:1317.) 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 in furtherance 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 same seniority 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 the discrimination, 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 limitations for these claims is therefore governed by the most clearly analogous state limitation period. Graham County Soil & Water Conservation 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. 3:07CV-604-M, 2011 WL 816632 (N.D. Tex. March 9, 2011). Here, as in the Christus Health and Wall cases, 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. judgment on this claim should be granted. Therefore, summary

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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 Attorney Texas State Bar No. 00790705 amy.messer@dallascityhall.com Janice S. Moss Assistant City Attorney Texas State Bar No. 14586050 janice.moss@dallascityhall.com 1500 Marilla Street, 7CN Dallas, Texas 75201 214-670-3500 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 with the 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 as service of this document by electronic means: Kyla G. Cole Charles S. Siegel Loren Jacobson Waters & Kraus LLP Counsel for Plaintiff David L. Haron Maro E. Bush Frank Haron Weiner Counsel for Plaintiff D. Paul Dalton Cowles & Thompson PC Counsel for Co-Defendant Southwest General Services William McMurrey Joshua Bock Jacqueline A. Garza-Rothrock Patrick Hanchey Bracewell & Giuliani Counsel for Co-Defendant Southwest General Services

s/ Amy I. Messer

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