• Perry testified Benitez had a copy of the October 27 Level Two grievance at the termination meeting, which specifically referenced “illegal conduct” by Bonaparte and Turner that Perry had reported to the district attorney. Based on the foregoing evidence, we conclude the jury reasonably could have inferred that Benitez, Turner, and Bonaparte all knew Perry had reported the destruction of the traffic ticket to the district attorney before making the decision to terminate him.[21] Accordingly, legally sufficient evidence supports the causation element of appellants’ whistleblower claim.[22]
We overrule appellants’ first issue.
B. First Amendment Claim
In their second and third issues, appellants argue Perry did not present legally sufficient evidence of causation on his First Amendment claims against Turner and Bonaparte because he did not show either was a final decision-maker with regard to Perry’s termination or that either knew of Perry’s report of the destruction of the traffic ticket to the district attorney until after Perry’s termination.
First Amendment retaliation employment discrimination claims are authorized under 42 U.S.C. section 1983.[23] To prove a claim under section 1983, a plaintiff must show a violation of a right secured by the Constitution or laws of the United States and demonstrate that the alleged deprivation was committed by a person acting under color of state law. James v. Tex. Collin Cnty., 535 F.3d 365, 373 (5th Cir. 2008). A plaintiff must establish that the defendant was either personally involved in the deprivation or that his wrongful actions were causally connected to the deprivation. Id. A supervisor is not personally liable for his subordinate’s actions in which he had no involvement. Id. Only final decision- makers may be held personally liable. Johnson, 369 F.3d at 831.
Final Decision-Makers.
As we have concluded, the jury reasonably could have inferred that Benitez, Turner, and Bonaparte were joint decision-makers. See id. Appellants presented evidence at trial that only the superintendent or superintendent’s designee has the authority to fire an AISD employee. Benitez testified she was the superintendent’s designee for the purposes of terminating Perry and she was the final decision-maker in that regard. However, Benitez also admitted “the decision to terminate . . . Perry was a joint decision” among her, Turner, and Bonaparte. Moreover, Benitez conceded that Turner and Bonaparte participated in the decision to terminate Perry. See James, 535 F.3d at 373-75 (upholding dismissal of section 1983 claim against individual defendants when plaintiff did not present evidence that they “participated in the decision to terminate his employment”); see also Jones v. City of Port Arthur, No. 1:12-CV-287, 2012 WL 6853909, at *10-11 (E.D. Tex. Dec. 5, 2012) (holding plaintiff had sufficiently pleaded section 1983 claim against four defendants who were not all supervisors but jointly took adverse employment actions against plaintiff who was ultimately terminated), report and recommendation adopted, No. 1:12-CV-287, 2013 WL 149706 (E.D. Tex. Jan. 11, 2013). We conclude that the jury was entitled to infer that Benitez, Turner, and Bonaparte were all final decision-makers for purposes of terminating Perry.
Knowledge of Report to District Attorney.
Appellants argue that Turner was not involved in Perry’s grievances, did not know about them, and did not know about the report to the district attorney until November 30, over two weeks after Perry’s termination. However, as discussed above, Perry presented uncontroverted evidence that Bonaparte and Turner destroyed the traffic ticket. Also, Perry gave Bonaparte a letter on November 1, which included a reference to Perry bringing “the illegal . . . actions of yourself and Captain Turner to the attention of the administration and the District Attorney.” Appellants assert that there is no evidence Turner saw the letter or knew it existed before Perry’s termination on November 11. However, on November 1, Turner sent a memorandum to Benitez referencing a written response from Perry. Perry testified the only “response” he submitted was the November 1 letter. We conclude the jury reasonably could have inferred from this evidence that Turner knew no later than November 1 that Perry had reported the destruction of the traffic ticket to the district attorney.
Appellants similarly argue that Perry did not present evidence that Bonaparte knew about Perry’s report to the district attorney. However, as set forth above, Perry presented evidence that he and Bonaparte discussed the destruction of the ticket on July 15 and Perry gave Bonaparte the November 1 letter stating he reported Bonaparte and Turner’s “illegal actions” to the district attorney. Appellants argue there is no evidence Bonaparte actually read the letter Perry purportedly personally delivered to Bonaparte. It would be reasonable for the jury to infer that Bonaparte read a letter addressed and personally delivered to him, especially in light of the fact that Perry presented evidence that Turner referred to the letter in the memorandum he sent to Benitez the same day Perry gave the letter to Bonaparte. The jury reasonably could have inferred that Bonaparte would have read the letter before providing it to Turner.
We overrule appellants’ second and third issues.
II. Exclusion of Bonaparte’s Testimony
In their seventh issue, appellants argue the trial court abused its discretion in preventing Bonaparte from testifying in his own defense at trial.[24] Perry took Bonaparte’s deposition twice at a time when Bonaparte could be subjected to criminal prosecution.[25] During both depositions, Bonaparte asserted the privilege against incriminating himself under the Fifth Amendment of the United States Constitution and refused to answer any questions.[26] Appellants provided their witness list eight days before trial, indicating for the first time that Bonaparte intended to testify at trial, but the trial court granted Perry’s motion to exclude Bonaparte’s testimony. Appellants argue the effect of the trial court excluding Bonaparte’s testimony was an unauthorized sanction and Perry did not properly challenge Bonaparte’s assertion of the privilege by obtaining an order on his motions to compel Bonaparte’s testimony.[27] Perry argues Bonaparte could not use the Fifth Amendment as a shield in discovery and a sword at trial, which would result in “trial by ambush.” Perry further argues a party must withdraw in a timely manner his assertion of the Fifth Amendment privilege to be entitled to testify at trial. We agree with Perry.
The Fifth Amendment guarantees that a person may not be compelled to testify or give evidence against himself. See U.S. Const. amend. V; Maness v. Meyers, 419 U.S. 449, 461 (1975); In re Ferguson, No. 01-12-00607-CV, 2013 WL 941802, at *2 (Tex. App.—Houston [1st Dist.] Mar. 12, 2013, no pet.). The Fifth Amendment can be asserted in civil cases “‘wherever the answer might tend to subject to criminal responsibility [he] who gives it.’” Tex. Dept. of Pub. Safety Officers Ass’n v. Denton, 897 S.W.2d 757, 760 (Tex. 1995) (quoting McCarthy v. Arndstein, 266 U.S. 34, 40 (1924)).[28] Thus, it may be asserted to avoid general civil discovery if the person invoking it reasonably fears the answer would tend to incriminate him. Id.; Ferguson, 2013 WL 941802, at *2.
The Supreme Court has cautioned that the United States Constitution limits “‘the imposition of any sanction which makes assertion of the Fifth Amendment privilege ‘costly.”” Davis-Lynch, Inc. v. Moreno, 667 F.3d 539, 547 (5th Cir. 2012) (quoting Spevack v. Klein, 385 U.S. 511, 515 (1967)). “Given this consideration—and because all parties should have a reasonable opportunity to litigate a civil case fully—courts should seek out ways to permit as much testimony as possible to be presented in the civil litigation, despite the assertion of the privilege.” Id. (internal quotations omitted). However, courts must measure “the relative weights of the parties’ competing interests [posed by an invocation of the Fifth Amendment] with a view toward accommodating those interests, if possible.” Id. Accordingly, courts weigh the specific facts of each case in which a civil litigant has attempted to withdraw his invocation of the Fifth Amendment privilege. Id.
Generally, courts should allow withdrawal of the privilege if the opposing parties will not suffer undue prejudice from the litigant’s earlier decision to invoke the Fifth Amendment. Id. Conversely, withdrawal is not permitted if the litigant is trying to abuse, manipulate or gain an unfair strategic advantage over opposing parties. Id. The timing and circumstances under which a litigant withdraws the privilege are relevant factors in considering whether a litigant is attempting to abuse or gain some unfair advantage because withdrawing the Fifth Amendment privilege at a late stage places the opposing party at a significant disadvantage from increased costs, delays, and the need for a new investigation. Id. at 547-48.
Bonaparte asserted his Fifth Amendment privilege twice during the discovery period and did not seek to withdraw it until eight days before trial. In withdrawing the privilege at such a late stage, Bonaparte withheld information that Perry could have used in his investigation, only to provide information at the last moment, leaving Perry at a disadvantage. See id. at 549 (holding defendant’s withdrawal of Fifth Amendment privilege five days before end of discovery period would put plaintiff at a disadvantage by leaving him less than a week to depose defendant and conduct investigation). Given Bonaparte’s eleventh-hour withdrawal of the privilege long after the discovery period had closed, we are satisfied that the trial court did not abuse its discretion in preventing Bonaparte from testifying at trial. See id.
Appellants nonetheless argue that Perry was required to file a motion to compel Bonaparte’s testimony and obtain a ruling from the trial court to challenge Bonaparte’s assertion of the privilege. Perry, however, did not challenge the assertion of the privilege; rather, he challenged Bonaparte’s withdrawal of the privilege. Thus, the authority Bonaparte cites to support his argument that Perry was required to challenge Bonaparte’s assertion of the privilege by filing a motion to compel and obtaining a ruling is inapposite.[29] Instead, Bonaparte was required to timely amend or supplement his deposition testimony before he could testify at trial as to any information withheld under his claim of privilege. See Tex. R. Civ. P. 193.4(c) (“A party may not use—at any hearing or trial—material or information withheld from discovery under a claim of privilege . . . without timely amending or supplementing the party’s response to that discovery.”), 193.5 (requiring party to supplement incomplete or incorrect discovery responses). We conclude Perry was not required to file a motion to compel to challenge Bonaparte’s withdrawal of the privilege.
We overrule appellants’ seventh issue.
III. One Satisfaction Rule
In their eighth issue, appellants argue the trial court abused its discretion by failing to require Perry to elect his remedies between his whistleblower and First Amendment claims in violation of the one satisfaction rule. See Tony Gullo Motors I, L.P. v. Chapa, 212 S.W.3d 299, 303 (Tex. 2006). Perry argues the final judgment complies with the one satisfaction rule because it imposes joint and several liability for Perry’s single, indivisible injury.
The one satisfaction rule applies to prevent a plaintiff from obtaining more than one recovery for the same injury. Id.; Christus Health v. Dorriety, 345 S.W.3d 104, 114 (Tex. App.—Houston [14th Dist.] 2011, pet. denied). The rule applies when multiple defendants commit the same act as well as when defendants commit technically different acts that result in a single injury. Christus Health, 345 S.W.3d at 114. If a party receives favorable findings on two or more theories of recovery that are consistent with each other and result in the same damages, then the trial court may render judgment awarding a single recovery of these damages, and the judgment may be based on all of these theories. Hatfield v. Solomon, 316 S.W.3d 50, 59 (Tex. App.—Houston [14th Dist.] 2010, no pet.).
Here, the trial court entered a final judgment imposing a single recovery of damages holding appellants jointly and severally liable up to the amount of AISD’s capped damages.[30] Turner and Bonaparte also are jointly and severally liable under the final judgment for the difference between the capped and non-capped amounts. Because the damages recoverable under the whistleblower and First Amendment claims are identical (but for the statutorily capped amount as to AISD) and because the trial court awarded a single recovery of damages, Perry was not required to elect between these theories of recovery. See id. Moreover, the See, e.g., Crown Life Ins. Co. v. Casteel, 22 S.W.3d 378, 390-92 (Tex. 2000) (holding when defendants commit technically different acts that cause a single injury, nonsettling defendants may claim settlement credit based on damages for which all tortfeasors are jointly and severally liable to avoid double recovery); Direct Value, L.L.C. v. Stock Bldg. Supply, L.L.C., 388 S.W.3d 386, 394-95 (Tex. App.—Amarillo 2012, no pet.) (“[T]he trial court’s joint and several judgment [against two defendants on two theories of liability] is proper because it does not permit more than one recovery for [the plaintiff's] single injury.”); Spillman v. Self-Serv Fixture Co., 693 S.W.2d 656, 658 (Tex. App.—Dallas 1985, writ ref’d n.r.e.) (acknowledging failure to impose joint and several liability on multiple defendants for single injury permits potential double recovery).
We overrule appellants’ eighth issue.
IV. Segregation of Attorneys’ Fees
In their ninth issue, appellants argue the trial court erred in failing to require Perry to segregate his attorneys’ fees by theory of liability because AISD cannot be held liable under section 1983 for the conduct of Bonaparte and Turner and Bonaparte and Turner cannot be held liable under the Whistleblower Act.[31] See Eugene v. Alief Indep. Sch. Dist., 65 F.3d 1299, 1304 (5th Cir. 1995) (noting AISD cannot be held vicariously liable under section 1983 for the actions of its employees); see also Tex. Gov’t Code § 554.002(a) (applicable to state or local government entity). Perry argues that he properly segregated his fees by applying an appropriate percentage reduction under the standard enunciated by the Texas Supreme Court in Chapa, 212 S.W.3d at 314.
Generally, a party seeking attorney’s fees must segregate those fees incurred in connection with a claim that allows their recovery from fees incurred in connection with claims for which no such recovery is allowed. Westergren v. Nat’l Prop. Holdings, L.P., Nos. 14-11-00058-CV, 14-11-00229-CV, 2013 WL 4857689, at *20 (Tex. App.—Houston [14th Dist.] June 28, 2013, pet. filed). Texas courts recognize an exception to this general rule. Chapa, 212 S.W.3d at 311; Westergren, 2013 WL 4857689, at *20. When discrete legal services advance both recoverable and unrecoverable claims, attorneys are not required to segregate fees to recover the total amount covering all claims. Chapa, 212 S.W.3d at 313-14; Westergren, 2013 WL 4857689, at *20. In this situation, the claims are said to be “intertwined, ” and the mere fact that attorneys’ fees are incurred in advancing both recoverable and unrecoverable claims does not render those fees unrecoverable. Chapa, 212 S.W.3d at 313–14; Westergren, 2013 WL 4857689, at *20. But if any attorney’s fees relate solely to a claim for which fees are unrecoverable, a claimant must segregate recoverable from unrecoverable fees. Chapa, 212 S.W.3d at 313; Westergren, 2013 WL 4857689, at *20.
Attorneys are not required to keep separate records documenting the exact amount of time working on one recoverable claim versus an unrecoverable claim. See Chapa, 212 S.W.3d at 314; Citizens Nat’l Bank of Tex. v. NXS Const., Inc., 387 S.W.3d 74, 87 (Tex. App.—Houston [14th Dist.] 2012, no pet.). Rather, segregation is sufficiently established if, for example, an attorney testifies that a given percentage of the drafting time would have been necessary even if the claim for which attorney’s fees are unrecoverable had not been asserted.[32] Chapa, 212 S.W.3d at 314; Citizens Nat’l Bank, 387 S.W.3d at 87.
Appellants argue Perry did not properly segregate fees among claims attributable to each party. Perry submitted redacted invoices of his attorneys in support of his motion for attorneys’ fees, along with an affidavit of his attorney James L. Reed. Reed attested that he reduced the reasonable and necessary attorneys’ fees Perry incurred in prosecuting his claims by ten percent to segregate out claims for which attorneys’ fees were not recoverable. Perry sought $520, 498.53 in attorneys’ fees, before applying a multiplier.[33]
Reed further attested:
With regard to all of the claims asserted in this lawsuit, both the claims that were non-suited and the claims that were tried, the underlying facts which would have supported the liability claims and damages were the same. More particularly, all of the claims asserted related to the fact that the Defendants retaliated against Plaintiff, deprived Plaintiff of fundamental rights guaranteed by AISD policy and Texas law, and damaged his reputation, causing mental anguish. All of the discovery that was taken in the case would have been equally applicable to the claims that were non-suited prior to the trial and the claims that were tried to the jury. All of the claims that were tried to the jury are claims for which attorneys’ fees can be recovered.
[I]t is my opinion that less than 10% of the attorneys’ fee time spent in this case relates solely to the claims that were non-suited prior to trial. In the abundance of caution, and to put forth a conservative segregation claim, I have subtracted 10% of the hours of [attorney] time spent in this case . . . .[34] In their response to the motion, appellants complained that Perry was required to further “segregate his damages attributable to the governmental entity from those attributable to the individual defendants.” In reply, Perry submitted another affidavit from Reed reducing the attorneys’ fees by another ten percent, five percent as to each claim, to segregate the fees as between the whistleblower and section 1983 claims (First and Fourteenth Amendments).
Reed attested:
In my opinion, the basic underlying conduct related to the Texas Whistleblower claim and the First Amendment claim is the same or substantially the same (the reporting of illegal conduct to the Harris County District Attorney’s Office (“HCDA”)). As a consequence, AISD is receiving the appropriate [Chapa] reduction. [I]n my opinion, the attorneys’ fees attributable to each of Plaintiff’s three causes of action [whistleblower and First and Fourteenth Amendments] should be reduced by an additional five (5) percent for each claim that a Defendant is not liable. The five (5) percent reduction with regard to each of the claims is to address the legal aspects and characteristics of research and specific legal analysis that would be attributable only to either the whistleblower claim, and/or the First and Fourteenth Amendment claims. The result of such reduction is as follows:
• AISD – reduction of another ten (10) percent, added to the original ten (10) percent reduction (5%, related to the First Amendment claim and 5% related to the Fourteenth Amendment claim [only being sought as an alternative claim]); and
• Turner and Bonaparte reduction of another ten (10) percent, added to the original ten (10) percent (5% related to the Texas Whistleblower claim and 5% related to the Fourteenth Amendment claim [only being sought as an alternative claim]). Accordingly, Perry attributed approximately 80% of his attorneys’ fees to each claim to each appellant for which fees were recoverable. After the additional discount and segregation of fees, the total amount of attorneys’ fees sought before a multiplier was $468, 445.[35] We conclude Perry presented evidence of how he segregated fees as to liability for each claim by each party. We hold that the evidence supports a conclusion that Perry properly and adequately segregated attorneys’ fees as between his whistleblower and section 1983 claims under the standard enunciated in Chapa. See 212 S.W.3d at 314 & n.83; see also Citizens Nat’l Bank, 387 S.W.3d at 88.
We overrule appellants’ ninth issue.
Conclusion
We overrule appellants’ six issues challenging the judgment against them on Perry’s whistleblower and First Amendment claims. We do not reach appellants’ issues involving the alternative judgment in favor of Perry on his Fourteenth Amendment claim. We affirm the judgment of the trial court.
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