Crampton Appellate Brief

Case: 17-51126 Document: 00514370288 Page: 1 Date Filed: 03/02/2018
No. 17-51126
IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT
JENNIFER CRAMPTON,
Plaintiff-Appellant
-v-
JON WEIZENBAUM, individually and in his official capacity, SYLVIA

RODRIGUEZ, individually and in her official capacity, and TEXAS
DEPARTMENT OF AGING AND DISABILITY SERVICES,
Defendant-Appellees
Appeal from the United States District Court

for the Western District of Texas, No. 1:16-cv-959-SS
INITIAL BRIEF OF APPELLANT
Colin Walsh
Texas Bar No. 24079538
Board Certified in Labor and
Employment Law by the Texas
Board of Legal Specialization
WILEY WALSH, P.C.

1011 San Jacinto Blvd, Ste 401
Austin, TX 78701
Telephone: (512) 271-5527
Facsimile: (512) 201-1263
ATTORNEY FOR APPELLANTS
1
CERTIFICATE OF INTERESTED PERSONS
The undersigned counsel of record certifies that the following listed
persons and entities as described in the fourth sentence of Rule 28.2.1
have an interest in the outcome of this case. These representations are
made in order that the judges of this court may evaluate possible
disqualification or recusal:
Jennifer Crampton – Plaintiff/Appellant
Colin Walsh – Counsel for Plaintiff/Appellant
Robert J. Wiley – Counsel for Plaintiff/Appellant
Wiley Walsh, P.C. – Counsel for Plaintiff/Appellant
Jon Weizenbaum – Defendant/Appellee
Sylvia Rodriguez – Defendant/Appellee
Texas Department of Aging and Disability Services –

Defendant/Appellees
Susan Watson – Counsel for Defendant
Heather Hacker – Counsel for Appellees
Texas Office of the Attorney General – Counsel for Defendant
Texas Office of the Solicitor General – Counsel for Appellees
/s/ Colin Walsh

Colin Walsh
Texas Bar No. 24079538
ii
REQUEST FOR ORAL ARGUMENT
Appellant requests oral argument on two matters:
I.
Does the decision-makers’ discussion of an employee’s protected
activity during a termination meeting allow for a reasonable inference of
retaliation? In this Texas Whistleblower Act case, handwritten meeting
notes show the decision-makers discussed Appellant’s complaint of
violations of law to the Office of the Inspector General at a management
meeting. According to testimony by Appellant’s manager, that
management meeting resulted in the decision to propose Appellant’s
termination. Appellant contends that the district court failed to view the
evidence in the light most favorable to Appellant and to make reasonable
inferences in her favor by holding no jury could find her OIG report
caused her termination. Indeed, the district court opinion conflicts with
the San Antonio Court of Appeals decision in Torres v. City of San
Antonio, No 04-15-664, 2016 WL 7119056 (Tex. App. – San Antonio Dec.
7, 2016, no pet.).
iii
II.
Are complaints to elected representatives that statutorily
mandated job qualification checks are not being performed on health care
personnel sent to the homes of the sick and elderly a matter of public
concern entitled to constitutional protection? In this case, Appellant sent
a detailed packet of information to numerous public officials (e.g.,
Governor Abbott, Attorney General Paxton, Congressman McCaul, etc.)
and entities alleging violations of law and fraud by DADS that could put
the public at risk of abuse. The district court failed to analyze the
content, form, and context of Appellant’s complaints, instead finding that
her personal interest in making those allegations stripped them of any
constitutional protection. The district court’s ruling conflicts with
Modica v. Taylor, 465 F.3d 174 (5th Cir. 2006).
Oral discussion of the facts and applicable case law in this matter
would be helpful to the Court in determining what reasonable inferences
can be made by knowing the topics discussed at a meeting and the result
of that meeting as well as whether complaints to elected officials alleging
violations of law and misconduct constitute matters of public concern.
iv
TABLE OF CONTENTS
CERTIFICATE OF INTERESTED PERSONS .........................................ii

REQUEST FOR ORAL ARGUMENT ...................................................... iii
TABLE OF CONTENTS .............................................................................. v
TABLE OF AUTHORITIES ...................................................................... xii
STATEMENT OF JURISDICTION ............................................................ 1
ISSUES PRESENTED ................................................................................ 2
STATEMENT OF THE CASE .................................................................... 3
A. DADS discussed Crampton’s OIG whistleblower complaint in the

meeting where it decided to propose her termination. Before that,
DADS disciplined Crampton shortly after becoming aware of each
report she made that DADS was violating the law.......................... 3
B. DADS hired Crampton in December 2014. DADS thought she was

a very good employee until she started complaining about violations
of law. .................................................................................................. 9
1. Mary Jo Grassmuck, Crampton’s original manager, rated her

“commendable,” the second highest performance rating
available ........................................................................................ 9
2. Co-workers also thought highly of Crampton .......................... 10
C. Grassmuck retired in June 2015 and was replaced by Sylvia

Rodriguez .......................................................................................... 10
1. Rodriguez lacked management and subject-matter experience.

..................................................................................................... 10
v
2. Rodriguez also had a reputation for holding grudges and

retaliating against employees who questioned her ................. 11
D. In September 2015, Rodriguez directed employees to stop reviewing

resumes for management changes, which violates the Texas Health
and Safety Code and the Administrative Code .............................. 11
E. Crampton felt compelled to report the violations of law she

witnessed at DADS both internally and to her elected officials ... 13
1. In September and October, Crampton engaged in whistleblower

activity and free speech when she reported to over 40 officials
that Rodriguez’s resume policy violated the law. .................... 13
2. In October, Ms. Crampton engaged in free speech when she

discovered and reported to Cindy Bourland, the department
director, that Rodriguez was forging letters by “recreating”
them and signing Grassmuck’s name ....................................... 15
F. After Crampton reported the violations of law, Rodriguez and

DADS retaliated against her ........................................................... 17
1. Hours after Rodriguez found out Crampton had both

complained to the Office of the Governor that the resume policy
violated the law and also filed a civil rights complaint, she gave
Crampton her first disciplinary write-up ................................. 17
2. A few days after Crampton’s first write-up, Bourland and

Rodriguez began inquiring about putting Crampton on decision-
making leave in an effort to force Crampton to resign ............ 18
vi
3. In late November, HHS Commissioner Jon Weizenbaum found

out Crampton complained to the Governor about violations of
law within DADS. He assigned Amy Tippie to deal with it .... 18
G. Because DADS did not address Crampton’s concerns and instead

retaliated against her, Crampton continued to report the violations
of law and misconduct she witnessed to the Governor’s Office and
the Office of the Inspector General ................................................. 19
H. DADS did not stop retaliating against Crampton.......................... 20
1. Weizenbaum denied Crampton’s grievance and refused to

transfer her after finding out she had complained to Senator
Kirk Watson about violations of law within DADS ................. 20
2. In March, DADS found out Crampton had complained to

Congressman Michael McCaul and to the Governor’s Office
again ............................................................................................ 21
I. Ultimately, DADS terminated Crampton because of her

whistleblower activity and the exercise of her free speech rights. 22
1. On April 1, 2016, DADS discussed Crampton’s OIG, civil rights,

and fraud complaints in a management meeting. By the end of
that meeting, DADS had decided to propose Crampton’s
termination ................................................................................. 22
2. On April 7, Crampton reported to the OIG that Rodriguez had

committed fraud by recreating letters and putting Grassmuck’s
signature on them ...................................................................... 23
vii
3. One week after her OIG interview regarding Crampton’s

reports, and after considering “everything that’s happened so
far,” Rodriguez fired Crampton ................................................. 23
J. After Crampton filed suit in July 2016, Rodriguez and Bourland

asked Schindler to delete evidence of the letters they “recreated”
with Grassmuck’s signature ............................................................ 24
K. In November 2017, the district court granted summary judgment. .

........................................................................................................ 24
SUMMARY OF THE ARGUMENT .......................................................... 26
I. Crampton presented competent summary judgment evidence that

DADS discussed her report of violations of law to the OIG during
the meeting where DADS decided to propose her termination.
Under applicable precedent, those facts raise an inference of
retaliation .......................................................................................... 26
II. Summary judgment should be reversed on Crampton’s

constitutional claims because letters to elected officials and outside
agencies alleging violations of law, fraud, and harm to the public
are matters of public concern........................................................... 27
III. The district court erred in denying Crampton’s motion to

supplement the summary judgment record because it failed to
analyze the four Freeman factors, which all favor allowing
admission of the declaration by Crampton’s former manager. ..... 28
ARGUMENT .............................................................................................. 29
I. Standard of review for summary judgment. ................................... 29
viii
II. Crampton presented competent summary judgment evidence that

(1) DADS management discussed her OIG complaint at the meeting
where they decided to propose her termination, (2) her supervisor
considered all of Crampton’s activities before terminating her, and
(3) she was written up or disciplined shortly after each report of a
violation of law .................................................................................. 30
A. Under the Texas Whistleblower Act, to prevail at summary

judgment, the employer must show conclusive proof that the
employee’s report of a violation of law played no role, however
small, in the termination decision. .................................................. 31
B. Evidence that the decision-makers considered an employee’s

whistleblower activity before making an employment decision is
circumstantial evidence of causation that defeats summary
judgment ........................................................................................... 33
C. In this case, discovery admissions, meeting notes, internal emails

and witness testimony show Rodriguez, the final decision-maker,
considered her reports in terminating her. .................................... 36
1. Rodriguez knew of Crampton’s reports to the OAG and the OIG

before she terminated her .......................................................... 36
2. The April 1 meeting notes show Crampton’s OIG report was

discussed at the meeting where the termination decision was
made ............................................................................................ 37
3. Rodriguez’s testimony that she considered “everything that’s

happened” in deciding to terminate Crampton is competent
summary judgment evidence that allows a jury to find
Crampton’s OIG and OAG reports were a factor in her
termination ................................................................................. 38
ix
D. Temporal proximity of less than four months between protected

activity and retaliatory acts constitutes circumstantial evidence of
prima facie causation that defeats summary judgment ................ 40
E. The district court erred by refusing to make reasonable inferences

in favor of Crampton from the fact that Rodriguez and DADS
management discussed her OIG whistleblower complaint at the
very meeting where DADS decided to propose her termination. .. 42
III. Summary Judgment should be reversed because contrary to the

district court’s opinion, Crampton’s complaint, DADS summary
judgment motion, Crampton’s summary judgment response, and
the evidence in the record all identify the precise speech Crampton
contends is subject to First Amendment and Texas Constitutional
protection........................................................................................... 46
IV. Summary Judgment should be reversed on Crampton’s First

Amendment and Texas Constitutional claims because the district
court erroneously held allegations that DADS was violating the
Health and Safety Code, fraudulently fining agencies, and forging
documents are not matters of public concern because of Crampton’s
own personal motivation in reporting them ................................... 51
A. Contrary to the district court’s opinion, Crampton’s report of fraud,

forgery, and violations of the Health and Safety Code were not
primarily motivated by a desire to save her job because she reported
it prior to receiving any formal discipline and the cover letter to the
report states she is reporting the legal violations because she does
not want someone to get hurt .......................................................... 52
B. Applying the “content, form, and context” factors to Crampton’s

reports to elected officials and the Inspector General establishes she
spoke on a matter of public concern ................................................ 53
x
C. The district court misapplied this Court’s decision in Harris ex rel.

Harris v. Potomac County School District in dismissing Crampton’s
constitutional claim on the basis that her personal motivation in
speaking out abrogates constitutional protection .......................... 57
V. The district court abused its discretion in denying Crampton’s

motion to supplement the summary judgment record because all
four Freeman factors favor admitting the declaration from
Crampton’s former manager. ........................................................... 58
CONCLUSION ........................................................................................... 62
CERTIFICATE OF SERVICE ................................................................... 64
CERTIFICATE OF COMPLIANCE ......................................................... 64
xi
TABLE OF AUTHORITIES
Cases
Beattie v. Madison Cnty. Sch. Dist.,

254 F.3d 595 (5th Cir. 2001) ................................................................... 46
Binur v. Jacobo,
135 S.W.3d 646 (Tex. 2004) .............................................................. 27, 41
Branton v. City of Dallas,

272 F.3d 730 (5th Cir. 2001) .................................................................. 54
Davis v. McKinney,
518 F.3d 304 (5th Cir. 2008) ............................................................. 46, 51
Dep’t of Hum. Srvs. v. Hinds,

904 S.W.2d 629 (Tex. 1995) .............................................................. 31, 32
E.E.O.C. v. Rite Way Service, Inc.,

819 F.3d 235 (5th Cir. 2016) .................................................................. 35
Evans v. City of Houston,

246 F.3d 344 (5th Cir. 2001) ............................................................ 40, 44
Freeman v. Cnty of Bexar,

142 F.3d 848 (5th Cir. 1998) ............................................................ 28, 59
Garza v. City of Mission,

684 S.W.2d 148
(Tex. App.—Corpus Christi-Edinburg 1984, no pet.) ........................... 40
Glorioso v. Mississippi Dep’t of Corrections,

193 F.3d 517, No. 99-60147, 1999 WL 706173
(5th Cir. 1999) (per curiam) ............................................................. 35, 36
Guadalajara v. Honeywell Int’l, Inc.,

224 F.Supp.3d 488 (W.D. Tex 2016) ...................................................... 35
xii
Haire v. Bd. of Supervisors of La. State Univ. Agric. & Mech. Coll.,
719 F.3d 356 (5th Cir. 2013) .................................................................. 29
Harris ex rel. Harris v. Potomac County School District,

635 F.3d 685 (5th Cir. 2011) ............................................................ 57, 58
Heinsohn v. Carabin & Shaw, P.C.,

832 F.3d 224 (5th Cir. 2016) ............................................................ 30, 50
Ion v. Chevron,
731 F.3d 379 (5th Cir. 2013) ...................................................... 34, 35, 43
Modica v. Taylor,
465 F.3d 174 (5th Cir. 2006) .......................................... iv, 27, 53, 54, 55
Patton v. Harris Cnty Comm. Superv. & Corr. Dept.,

No. 14-04-00683-CV, 2005 WL 3116405
(Tex. App.—Houston [14th Dist.] 2005, pet. denied) ..................... 40, 44
Performance Autoplex II Ltd. v. Mid-Continent Casualty Co.,

322 F.3d 847 (5th Cir. 2003) ............................................................ 28, 59
Robinson v. Jackson State Univ.,

No. 16-60760, 2017 WL 6003389
(5th Cir. Dec. 4, 2017) (per curiam) ....................................................... 45
Royal v. CCC & R Tres Arboles, L.L.C.,

736 F.3d 396 (5th Cir. 2013) .................................................................. 35
Tolan v. Cotton,
134 S.Ct. 1861 (2014) .............................................................................. 29
Tomhave v. Oaks Psych. Hosp.,

82 S.W.3d 381 (Tex. App.—Austin 2002, pet. denied) ............. 27, 41, 44
Torres v. City of San Antonio,

No 04-15-664, 2016 WL 7119056
(Tex. App.-San Antonio Dec. 7, 2016, no pet.) .. iii, 26, 32, 33, 34, 39, 45
xiii
Wichita County v. Hart,

917 S.W.2d 779 (Tex. 1996) .................................................................... 31
Statutes
28 U.S.C. § 1291 ........................................................................................... 1
28 U.S.C. § 1331 ........................................................................................... 1
28 U.S.C. § 1367 ........................................................................................... 1
Tex. Gov. Code Ann. § 554.002 (West 2015) ............................................ 31

Other Authorities
Tex. Pat. Jury. Inst. 107.4 ......................................................................... 32

Rules
Tex. R. App. Proc. 47.7............................................................................... 32
xiv
STATEMENT OF JURISDICTION
The district court had original subject matter jurisdiction over this
case under 28 U.S.C. § 1331 because this action was brought under 42
U.S.C. § 1983. The district court had supplemental jurisdiction over the
state law claims under 28 U.S.C. § 1367.
This Court has jurisdiction under 28 U.S.C. § 1291, being an appeal
from a trial court’s final dismissal with prejudice. Final judgment was
entered on November 14, 2017. ROA.5. Notice of Appeal was timely filed
on December 13, 2017. ROA.5.
1
ISSUES PRESENTED
ISSUE ONE: Meeting notes show Appellant’s complaint of violations
of law to the Office of the Inspector General was
discussed at a management meeting. According to
testimony by Appellant’s manager, that management
meeting resulted in the decision to propose Appellant’s
termination. Drawing all reasonable inferences in favor
of the Appellant, could a jury reasonably find
Appellant’s OIG complaint caused her termination?
ISSUE TWO: Appellant sent letters and a packet of information to her
elected representatives, including Governor Greg
Abbott, Attorney General Ken Paxton, and U.S.
Representative Michael McCaul. Her letters and
documents alleged DADS was violating the law in a
manner that could harm the public, specifically by
allowing unqualified workers to care for the sick and
elderly in their homes. Are her allegations speech on a
matter of public concern and entitled to constitutional
protection?
2
STATEMENT OF THE CASE
A. DADS discussed Crampton’s OIG whistleblower complaint

in the meeting where it decided to propose her termination.
Before that, DADS disciplined Crampton shortly after
becoming aware of each report she made that DADS was
violating the law.
On April 1, 2016, Jennifer Crampton told Sylvia Rodriguez, her
manager, she would not quit her job at DADS. ROA.818. Crampton told
Rodriguez her actions had been reported to the Office of the Inspector
General. Id. Later that day, DADS management met to discuss the
future of Crampton’s employment with DADS. ROA.678. The first topics
discussed included Crampton’s OIG complaint and her fraud complaint:
ROA.678. By the end of that meeting, Rodriguez had decided to propose
Crampton’s termination. ROA.615:3-17. Two weeks later, Crampton
was fired. Id.
3
The following timeline shows the events of April 1 were not an
isolated incident. When the events are put in chronological order, they
show Jennifer Crampton was written-up and/or disciplined by DADS
shortly after each complaint or report that DADS was violating the law.
Timeline
December 2014 DADS hires Crampton. ROA.130 at 26-27.
May 28, 2015 DADS rates Crampton’s overall performance
“commendable,” the second highest rating
available. ROA.596. She “[i]nteracts with
coworkers in a positive manner” and “[a]ccepts
constructive criticism and uses them to improve
performance.” ROA.593, 595.
September 14, 2015 Sylvia Rodriguez, department manager, directs
employees to stop checking resumes for personnel
changes at Home Health Care Agencies. ROA.169.
This policy change is widely thought to violate the
law. ROA.600:19-21 (Schindler Dep.); ROA.607-08
(Nelson Dep.); ROA.137 at 54:22-23 (Crampton
Dep.).
4
Sept./Oct. 2015 Crampton sends a 56-page packet of information
to 40 or 50 elected representatives and agencies,
including the Governor, the Attorney General, and
several senators. ROA.134 at 42-43. The packet
alleges and provides evidence that DADS was
violating the law by not checking resumes and that
the public could get hurt. ROA.166-222.
October 17, 2015 Crampton tells Director Cindy Bourland that
Rodriguez is committing fraud by recreating
documents and signing the previous manager’s
name. ROA.586 at ¶¶5-6.
October 20, 2015 Rodriguez enquires about disciplining Crampton.
See ROA.343.
November 9, 2015 Early in the day, Ms. Rodriguez learns Crampton
complained to the Governor and to the Civil Rights
Office about alleged violations of law. ROA.586 at
¶¶2-3; ROA.635.
Later that day Rodriguez issues Crampton her first write-up,
putting her on a Second Level. ROA.251. There is
5
no level one, which is a deviation from procedure.
ROA.288.
November 10 Bourland and Rodriguez ask if they can put
Crampton on Decision-Making Leave. ROA.639-
40; ROa.614:17-18 (Rodriguez Dep.).
February 23, 2016 DADS Commissioner Jon Weizenbaum is notified
that Ms. Crampton sent a complaint to State
Senator Kirk Watson. ROA.655.
March 2, 2016 Weizenbaum denies Crampton’s internal
grievance alleging retaliation. ROA.653.
March 22, 2016 Congressman Michael McCaul’s office sends a
letter to Crampton at her work address. ROA.658.
The letter is opened and read by DADS. ROA.662
(Admission No. 7).
March 28, 2016 Rodriguez and Bourland put Ms. Crampton on
DML. ROA.258.
March 31, 2016 Governor Abbott’s office contacts DADS via email.
ROA.675. The email is forwarded to Amy Tippie,
Commissioner Weizenbaum’s assistant. Id.
6
April 1, 2016 Crampton tells Rodriguez that she will not resign
and that she reported Rodriguez to the OIG.
ROA.790.
That afternoon Tippie, Rodriguez, Robbi Craig in HR, and others
discuss Crampton’s fraud, OIG, and civil rights
complaint as well the letter from Congressman
McCaul. ROA678-79. At that meeting, Rodriguez
and DADS decide to propose Crampton’s
termination. ROA.615:3-17.
April 6, 2016 Rodriguez and Bourland discuss Ms. Crampton’s
complaints to the Governor. ROA.834.
April 7, 2016 Crampton reports to the OIG that Rodriguez
committed fraud by recreating documents and
using the prior manager’s signature on them.
ROA.812; ROA.839.
April 8, 2016 Rodriguez is interviewed by OIG. ROA.813.
April 15, 2016 After considering “everything that’s happened,”
Rodriguez terminates Crampton. ROA.616:1-4
(Rodriguez Dep.).
7
July 8, 2016 Crampton files suit. ROA.17
Fall 2016 Rodriguez asks Laura Schindler how Crampton
found out about the recreated letters with
Grassmuck’s signature. ROA.683. Rodriguez
keeps repeating that Schindler “gave her
permissions to do what was done.” Id. Schindler
took this as threat, later writing “I am very upset
and concerned for my job.” Id.
October 2016 Rodriguez and Bourland ask Schindler to destroy
the renewal history, which included the recreated
documents with Grassmuck’s signature.
ROA.604:10-25. She refused. Id.
January 20, 2017 Schindler complains of retaliation by Rodriguez for
participating in Crampton’s complaint stating, “I
fear I might lose my job because I was asked to
answer questions for this [lawsuit.]” ROA.683.
8
B. DADS hired Crampton in December 2014. DADS thought

she was a very good employee until she started complaining
about violations of law.
Jennifer Crampton was hired by Mary Jo Grassmuck as an LPII,
Licensing and Permit Specialist II, in December 2014. ROA.129-30. As
an LP II, Crampton worked in the Licensing and Certification Unit.
ROA.243 at ¶ 2.
1. Mary Jo Grassmuck, Crampton’s original manager, rated

her “commendable,” the second highest performance
rating available.
Under Grassmuck, Crampton excelled. Grassmuck rated her
overall performance “commendable,” the second highest performance
rating available, in May 2015. ROA.596. According to that evaluation,
Crampton “[i]nteracts with coworkers in a positive manner. Actively
listens to all instructions. Keeps her supervisor and co-workers informed
of work activities.” ROA.593. Crampton also “[a]ccepts constructive
criticism and uses them to improve performance.” ROA.595.
Grassmuck “never had any problems with Crampton.” ROA.704 at
¶ 6. “She was never disrespectful, snide or rude to [Grassmuck]” and
Grassmuck “never witnessed her act that way towards other people.” Id.
at ¶¶ 7-8.
9
2. Co-workers also thought highly of Crampton.
According to Laura Schindler, another LPII, who trained
Crampton, she “was the only LPII that could complete the renewal
process without my assistance, only after a couple [of] training sessions,
and understood the process.” ROA.685.
Unfortunately, everything changed for Crampton when Grassmuck
retired.
C. Grassmuck retired in June 2015 and was replaced by Sylvia

Rodriguez.
When Grassmuck retired in June 2015, Sylvia Rodriguez became
the new manager. ROA.138 at 61:11; ROA.243 at ¶ 2.
1. Rodriguez lacked management and subject-matter

experience.
According to Grassmuck, at the time Rodriguez was promoted, she
“did not have enough experience as a manager or in the subject area.”
ROA.705 at ¶ 11. According to Schindler, Rodriguez “was not interested
in learning what we did [in licensing and certification], why we did it, or
how we did this work.” ROA.683. Rodriguez did “not understand the
rules and regulations” that applied to the Licensing and Certification
Unit. ROA.683.
10
2. Rodriguez also had a reputation for holding grudges and

retaliating against employees who questioned her.
According to Grassmuck’s personal experiences with her,
“Rodriguez also holds grudges against employees when she does not get
her way.” ROA.704 at ¶ 13. Rodriguez’s reputation for retaliation was
so bad that Schindler feared she would lose her job simply because she
“was asked to answer questions for this” lawsuit. ROA.683.
Unsurprisingly, “[s]ince Sylvia has been the HCSSA manager the work
environment is a hostile work environment.” ROA.685.
D. In September 2015, Rodriguez directed employees to stop

reviewing resumes for management changes, which violates
the Texas Health and Safety Code and the Administrative
Code.
On September 14, 2015, Rodriguez sent an email to her
department:
Effective immediately, the Management Change Request that

are received . . . will not require a resume. . . . [W]e are not
requiring them to submit their resumes.
ROA.169. Ms. Rodriguez made it clear the directive meant “just to
stop reviewin’ [resumes], and approve [change requests].” ROA.599:23-
24 (Schindler Dep.). That is exactly what happened. ROA.599-600.
Change requests were approved without qualifications being reviewed.
11
Id. Per Rodriguez’s instructions, Schindler alone approved 215 personnel
change applications without reviewing resumes for statutorily required
qualifications and prerequisites. ROA.683. According to Crampton,
4,000 applications were pushed through without the resumes or
qualifications of requested personnel changes being checked. ROA.151
at 110-111.
While this policy reduced the backlog, many people, such as
Schindler, Becky Nelson (who was team lead), and Crampton believed
this directive violated the law. ROA.600:19-21 (Schindler Dep.);
ROA.607-08 (Nelson Dep.); ROA.137 at 54:22-23 (Crampton Dep.).
According to these employees, the policy violated the law because without
resumes there was no way to check qualifications as required by statute
and regulation. ROA.599:4-15 (Schindler Dep.). Specifically, they
believed the policy violated chapter 142 of Health and Safety Code as well
as chapter 97 of the Texas Administrative Code, Title 40. ROA.600:19-
21 (Schindler Dep.); ROA.607-08 (Nelson Dep.); ROA.137 at 54:22-23
(Crampton Dep.).
12
E. Crampton felt compelled to report the violations of law she

witnessed at DADS both internally and to her elected
officials.
Crampton first reported that Rodriguez’s policy violated the law
internally to Bobby Schmidt, her second level supervisor, and Cindy
Bourland, the director of the unit. ROA.166; see also ROA.399. Neither
did anything.
1. In September and October, Crampton engaged in

whistleblower activity and free speech when she
reported to over 40 officials that Rodriguez’s resume
policy violated the law.
When DADS failed to act, Crampton put together a packet of
information containing evidence showing what she believed to be
violations of law and fraud. ROA. 166-222. Crampton drafted a cover
letter and then sent that evidence to 40 or 50 different officials, including
her own elected representatives, the Governor, the Texas Attorney
General, and several congressmen. ROA.133 at 39:16-22. In her cover
letter, Ms. Crampton explains why she felt compelled to engage in this
whistleblower activity:
I believe [Sylvia Rodriguez] has jeopardized our agency, to the

point in which someone is going to get hurt. I have voiced my
concerns with Bobby Schmidt and Cindy Bourland to no avail.
. . . [W]e have done a disgrace for the people of Texas.
13
ROA.166. Crampton “could no longer sit and watch this go on.” Id.
In the fifty-six page packet of evidence, Crampton detailed the
specific violations of law and misconduct she witnessed. On a copy of
Rodriguez’s email announcing the resume policy change, Crampton
wrote:
ROA.169. Farther down in the packet, Crampton again states:
Ms. Crampton detailed how the backlog regarding management
change approval could result in some home healthcare agencies not being
14
checked for three years. ROA.190 (“Because the survey reps are so far
behind some of these agenc[ies] will not be checked for 3 years!!!”).1
Crampton expresses concern that some home health agencies might
be getting improperly fined because of mistakes made by DADS.
ROA.166. 2 Finally, Crampton provides print outs of several of the
statutes and regulations she believes were violated. ROA.184-89.
2. In October, Ms. Crampton engaged in free speech when

she discovered and reported to Cindy Bourland, the
department director, that Rodriguez was forging letters
by “recreating” them and signing Grassmuck’s name.
One of the things the Licensing and Certification unit does is send
out renewal notices to home health agencies. ROA.589-90. These letters
tell the agency it needs to renew its license within a certain amount of
time. Id.; see also ROA.248.
In Mid-October, Crampton found out that Rodriguez needed
someone to “recreate” several renewal letters with Grassmuck’s
signature because the originals could not be found anywhere ROA.138-
39 at 59-64. Indeed, there is no proof the letters that needed to be
“recreated” had ever been sent in the first place. ROA.847. A coworker
1 Coworker Becky Nelson agrees this an accurate and valid concern. ROA.609:1-6.
2 Ms. Schindler agrees that is a distinct possibility. ROA.604:3-8.
15
asked Crampton if she could do this for Rodriguez. ROA.138 at 60:6-7.
Crampton believed these actions amounted to forgery and fraud.
ROA.586 at ¶¶ 6-7. She refused. ROA.138 at 60:6-7.
However, Schindler did “recreate” the letters for Rodriguez.
ROA.586 at ¶2; ROA.138 at 62:3-20. Both Rodriguez and Schindler
confirmed during their depositions that Rodriguez asked her to put
Grassmuck’s signature on twelve backdated letters when DADS could
not locate the originals. ROA.601:11-23 (Schindler Dep.); ROA.620
(Rodriguez Dep.). Schindler confirmed they should not have used
Grassmuck’s signature. ROA.602:13-14; ROA.603:6-7.
After Crampton learned of this, on October 17, 2015, she went
outside her chain of command and spoke to the Director of the Licensing
and Certification unit, Cindy Bourland, about Rodriguez’s actions.
ROA.586 at ¶5. As with the other violation of law, Crampton felt she had
a duty to report this because she “believed as a citizen of Texas that
Rodriguez’s actions constituted fraud against the home health agencies
since the paperwork could not be found.” ROA.586-87 at ¶7. After
Crampton reported this misconduct, Bourland discussed the issue with
Rodriguez. ROA.587 at ¶8.
16
F. After Crampton reported the violations of law, Rodriguez

and DADS retaliated against her.
Prior to Crampton’s reports of violations of law to 40 or 50 officials
and to the department director, Crampton had never been formally
disciplined. ROA.665 (Admission No. 27).
However, mere days after learning of Crampton’s allegations of
fraud and forgery, Rodriguez began inquiring about the proper way to
write up Crampton. ROA.343.
1. Hours after Rodriguez found out Crampton had both

complained to the Office of the Governor that the resume
policy violated the law and also filed a civil rights
complaint, she gave Crampton her first disciplinary
write-up.
On November 9, Crampton received a letter at her work address
from Governor Abbott’s office. ROA.586 at ¶2. Before delivering it to
Crampton, Alyssa Sampson, a coworker, opened it and gave it to
Rodriguez. ROA.134 at 43:24-24. After Rodriguez read it, Sampson
brought the letter to Crampton, threw it on her desk and said, “Sylvia
said you could have this.” ROA.586 at ¶ 3; ROA.134 at page 43:23. At
10:30 a.m. that same day, Rodriguez also learned Crampton had filed a
civil rights complaint against her. ROA.635. After learning these two
17
facts, Rodriguez put Crampton on a Second Level Reminder. ROA.251.
There was no level one.
2. A few days after Crampton’s first write-up, Bourland and

Rodriguez began inquiring about putting Crampton on
decision-making leave in an effort to force Crampton to
resign.
A few days after Crampton’s first write-up, Bourland and Rodriguez
asked if they could put Crampton on decision-making leave (“DML”).
ROA.639-40; ROA.614:17-18 (Rodriguez Dep.) (“We were just asking her
what we should do.”). DML is where an employee is given time off to
consider resigning her position. ROA.632:6-13 (Craig Dep.). DML is one
of the final disciplinary steps. ROA.299.
3. In late November, HHS Commissioner Jon Weizenbaum

found out Crampton complained to the Governor about
violations of law within DADS. He assigned Amy Tippie
to deal with it.
In late November, Commissioner Weizenbaum learned that
Crampton had complained to Governor Abbott about violations of law
within DADS and retaliation for whistleblower activity. ROA.642-43;
ROA.647. He then tasked Amy Tippie, Director of Administrative
Management Services, with addressing Crampton’s complaint. ROA.642
(“FYI- let’s discuss” with Governor’s letter attached); ROA.644. They put
18
a plan in place: “If you are ok with my suggested approach, I will . . . meet
with [Jennifer Crampton] early next week (on Jon’s behalf) to discuss her
concerns.” ROA.644.
G. Because DADS did not address Crampton’s concerns and

instead retaliated against her, Crampton continued to
report the violations of law and misconduct she witnessed
to the Governor’s Office and the Office of the Inspector
General.
In late November or early December 2015, Crampton contacted the
Governor’s office again complaining that she was being retaliated against
because of the packet that she sent in October. ROA.647. Crampton also
complained that her supervisor Sylvia Rodriguez was falsely
documenting misconduct. Id.
On December 31, she brought her concerns to the Office of the
Inspector General (“OIG”), sending them the same package that she sent
to the other officials and agencies. See ROA.809-10. Again, this fifty-six
page packet of evidence alleged that Rodriguez’s directive not to check
resumes violated the law. Id. (“An email dated December 30, 2015 . . .
explaining alleged misconduct by Rodriguez.”)
19
H. DADS did not stop retaliating against Crampton.
In December, Ms. Crampton complained internally that Bourland
had retaliated against her for filling an internal complaint with the
HHSC EEOC and that Bourland was actively covering up mistakes that
were leaving the unit. ROA.650. The grievance was denied by Mary
Henderson on February 8, 2015. In February 2016, Ms. Crampton
appealed directly to Commissioner Weizenbaum. ROA.651.
1. Weizenbaum denied Crampton’s grievance and refused to

transfer her after finding out she had complained to
Senator Kirk Watson about violations of law within
DADS.
On February 17, Crampton sent an email to State Senator Kirk
Watson saying, “I can show you all the things that are not being done and
now my job is on the line by trying to do the right thing.” ROA.656. On
February 23, 2016, Senator Watson’s office called Weizenbaum to discuss
Crampton’s report. ROA.655.
On March 2, 2016, days after Weizenbaum learned of the report to
Watson, he denied Ms. Crampton’s internal grievance and refused her
transfer request. ROA.651.
20
2. In March, DADS found out Crampton had complained to

Congressman Michael McCaul and to the Governor’s
Office again.
On March 22, U.S. Representative Michael McCaul’s office wrote to
Crampton at her work address regarding the packet of information she
sent. ROA.658. That letter was opened and read by DADS before it was
given to Crampton. ROA.662 (Admission No. 7). On March 28, 2016,
Rodriguez and Bourland put Crampton on DML. ROA.258. On March
29, 2016, the OIG reopened their investigation based on new information
from Crampton regarding violations by Rodriguez. See ROA.811.
On March 31, Crampton complained once again to the Governor’s
office that she was being “retaliated against for writing to the OIG about
her problem” last October. ROA.667; ROA.675. Governor Abbott’s office
contacted DADS regarding the complaint. ROA.675. The office asked for
assurances that Ms. Crampton’s situation had been addressed. Id.
Tippie then cryptically emailed Robbi Craig in Human Resources about
the Governor’s email, saying “please do not share at this time.” ROA.676.
21
I. Ultimately, DADS terminated Crampton because of her

whistleblower activity and the exercise of her free speech
rights.
Crampton returned from Decision-Making Leave on April 1, 2016.
ROA.818. She met with Rodriguez and Robbi Craig in HR. Id. Crampton
told them she would not quit and that she had reported Rodriguez’s
retaliation to the OIG. Id.
1. On April 1, 2016, DADS discussed Crampton’s OIG, civil

rights, and fraud complaints in a management meeting.
By the end of that meeting, DADS had decided to propose
Crampton’s termination.
After Crampton told Rodriguez that she would not quit and had
reported Rodriguez’s violations of law and retaliation to the OIG, DADS
management met to discuss Crampton’s employment. ROA.678-79. That
afternoon, Rodriguez, Tippie (acting on Mr. Weizenbaum’s behalf), Craig,
and others discussed Crampton’s OIG complaint, her fraud complaint,
her civil rights complaint, and the letter from Representative McCaul.
Id. According to the meeting notes, the OIG, civil rights, and fraud
complaints were the first topic discussed. ROA.678.
By the end of that meeting, Rodriguez and DADS had made the
decision to propose Crampton’s termination. ROA.615:3-17.
22
Assistant Commissioner Mary Henderson notified the Governor’s
office that Crampton had been disciplined. ROA.681. On April 6, 2016,
documents obtained by the OIG show that Bourland and Rodriguez
discussed each allegation in Crampton’s complaint to Governor Abbott.
ROA.834-37. The next day, Rodriguez formally proposed Ms. Crampton’s
termination. ROA.263.
2. On April 7, Crampton reported to the OIG that Rodriguez

had committed fraud by recreating letters and putting
Grassmuck’s signature on them.
On April 7, 2016, Ms. Crampton sent an email to the OIG alleging
Rodriguez committed fraud by “recreating” documents DADS could not
find. ROA.839. This email was forwarded to Investigator Scott
McClellan, who interviewed Rodriguez on April 8. ROA.813.
3. One week after her OIG interview regarding Crampton’s

reports, and after considering “everything that’s
happened so far,” Rodriguez fired Crampton.
On April 15, 2016, one week after being interviewed by the OIG,
Rodriguez fired Crampton. ROA.271. In making the termination
decision, Rodriguez considered “all information. Everything that’s
happened so far. All the information. Everything that’s happened, all
the documentation that led to this decision.” ROA.616:1-4. “Everything
23
that’s happened so far” would include Crampton’s complaints to the OIG,
the Governor, the Attorney General, and Congressman McCaul.
J. After Crampton filed suit in July 2016, Rodriguez and

Bourland asked Schindler to delete evidence of the letters
they “recreated” with Grassmuck’s signature.
This lawsuit followed. ROA.17. In October 2016, Bourland and
Rodriguez asked Schindler to destroy the renewal history. ROA.604:10-
13. Specifically, “They wanted all of Mary Jo [Grassmuck’s] letters
removed from the history” online. ROA.604:21-25. Because that request
violated the retention requirements for DADS, Schindler refused.
ROA.604:19-20.
Schindler now fears she will be retaliated against by Rodriguez. In
fact, on January 20, 2017 she told DADS attorney, “I fear I might lose my
job because I was asked to answer questions for this” lawsuit. ROA.683.
Schindler worries that “they [will] fire me if I speak up about what has
happened in this department”. ROA.685.
K. In November 2017, the district court granted summary

judgment.
Appellees filed a motion for summary judgment on July 7, 2017.
ROA.97. Their motion did not conclusively negate any of the above facts.
24
Crampton filed her response detailing the facts described above on July
21, 2017. ROA.408.
The district court was thus presented with two conflicting versions
of what happened. The district court credited Appellees’ version of events
over Crampton’s and granted summary judgment. ROA.745.
Because we believe the district court improperly weighed the
evidence against Crampton, this appeal followed.
25
SUMMARY OF THE ARGUMENT
I. Crampton presented competent summary judgment evidence

that DADS discussed her report of violations of law to the OIG
during the meeting where DADS decided to propose her
termination. Under applicable precedent, those facts raise an
inference of retaliation.
A reasonable jury could find Crampton was terminated because of
her whistleblower activity. Under Texas whistleblower law, evidence
that the decision-makers discussed protected activity in the same
meeting an adverse employment decision was made raises an inference
of retaliation. See Torres v. City of San Antonio, No 04-15-664, 2016 WL
7119056 at *4-5 (Tex. App.-San Antonio Dec. 7, 2016, no pet.).
Here, DADS management discussed her whistleblower activity at
the very meeting in which DADS decided to propose Crampton’s
termination. Additionally, when Crampton’s supervisor was asked what
information she considered in making the termination decision, she said
“everything that’s happened so far.” “Everything that’s happened so far”
includes Crampton’s whistleblower complaints to the Office of the
Attorney General and the Office of the Inspector General.
Finally, “a verdict for retaliatory discharge may be based upon the
immediacy of suspension or termination following a report.” See Tomhave
26
v. Oaks Psych. Hosp., 82 S.W.3d 381, 386 (Tex. App.—Austin 2002, pet.
denied), disapproved of on other grounds by Binur v. Jacobo, 135 S.W.3d
646, 651 n.11 (Tex. 2004).
Here, the evidence shows Crampton was disciplined or written up
shortly after each protected complaint.
Summary judgment should be reversed.
II. Summary judgment should be reversed on Crampton’s

constitutional claims because letters to elected officials and
outside agencies alleging violations of law, fraud, and harm to
the public are matters of public concern.
Under Modica v. Taylor, letters to elected officials alleging
violations of law and potential harm to the public or fraud are considered
matters of public concern and constitutionally protected speech. Modica
v. Taylor, 465 F.3d 174, 180-81 (5th Cir. 2006). This is true even if the
letters and reports also discuss private or personal matters. Id.
Here, Crampton sent numerous letters and packets of information
to her elected officials including the Governor, Attorney General, state
representatives and U.S. representatives. Her letters alleged DADS was
violating the Texas Health & Safety Code by not checking resumes for
management changes at home health agencies. Crampton was concerned
that this practice would cause harm to the public because unqualified
27
people could potentially be working for these agencies. Crampton also
alleged DADS was potentially fraudulently fining home health agencies
for mistakes DADS made.
Under Modica, those letters constitute speech on matters of public
concern. Summary judgment must be reversed.
III. The district court erred in denying Crampton’s motion to

supplement the summary judgment record because it failed to
analyze the four Freeman factors, which all favor allowing
admission of the declaration by Crampton’s former manager.
In ruling on a motion to supplement summary judgment evidence,
district courts should consider the four Freeman factors:
(1) the moving party's reasons for not originally submitting

the evidence; (2) the importance of the omitted evidence to the
moving party's case; (3) whether the evidence was previously
available to the non-moving party when it responded to the
summary judgment motion; and (4) the likelihood of unfair
prejudice to the non-moving party if the evidence is accepted.
Performance Autoplex II Ltd. v. Mid-Continent Casualty Co., 322 F.3d
847, 862 (5th Cir. 2003) (citing Freeman v. Cnty. of Bexar, 142 F.3d 848,
852 (5th Cir. 1998)).
In this case, all four factors favored granting the motion to
supplement. First, the declaration did not exist before the filing deadline
despite efforts to obtain it before the deadline. Second, the declaration
28
shows material fact disputes. Third, the evidence was available to
Appellees because they had already disclosed the person as a witness.
Fourth, there has been no showing of prejudice.
Because the district court did not apply these factors or facts in
ruling on the motion, it abused its discretion in denying it.
ARGUMENT
I. Standard of review for summary judgment.
This Court reviews de novo a trial court’s grant of summary
judgment. Haire v. Bd. of Supervisors of La. State Univ. Agric. & Mech.
Coll., 719 F.3d 356, 362 (5th Cir. 2013). This Court must view the
evidence in the light most favorable to the non-movant. Tolan v. Cotton,
134 S.Ct. 1861, 1866 (2014). This Court must draw all reasonable
inferences in favor of the non-movant and may not make credibility
determinations or weigh the evidence. Id.
This Court “must take care not to define a case’s context in a
manner that imports genuinely disputed factual propositions.” Id.
Finally, this Court “must disregard all evidence favorable to the moving
party that the jury is not required to believe.” Heinsohn v. Carabin &
29
Shaw, P.C., 832 F.3d 224, 245 (5th Cir. 2016) (emphasis in original);
Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 151 (2000).
II. Crampton presented competent summary judgment evidence

that (1) DADS management discussed her OIG complaint at the
meeting where they decided to propose her termination, (2) her
supervisor considered all of Crampton’s activities before
terminating her, and (3) she was written up or disciplined
shortly after each report of a violation of law.
On April 1, 2016, DADS management had a meeting in which
Sylvia Rodriguez, Amy Tippie, Cindy Bourland, and others discussed
Crampton’s report of violations of law to the OIG. ROA.678. By the end
of that meeting and as a result of the topics discussed, DADS decided to
propose Crampton’s termination. ROA.615:3-17. Under applicable
precedent, these facts alone allow a reasonable jury to find Crampton’s
OIG complaint caused her termination. Summary judgment should be
reversed.
To establish a claim of retaliation under the Texas Whistleblower
Act, Crampton must show she (1) made a report of a violation of law (2)
in good faith, meaning she reasonably believed the conduct reported was
a violation of law (3) to an appropriate law enforcement authority, (4)
which caused her to suffer an adverse action. Tex. Gov. Code Ann. §
30
554.002; Wichita County v. Hart, 917 S.W.2d 779, 784 (Tex. 1996)
(defining the meaning of good faith within the whistleblower statute).3
In the district court, DADS challenged the first, second and fourth
elements, but “assum[ed] the OAG and the OIG are appropriate law
enforcement authorities.” ROA.113. 4 The district court granted
summary judgment based solely on the fourth element, causation.
ROA.739. In reaching that conclusion, the district court weighed the
evidence, made credibility determinations, and resolved factual disputes
in favor of Appellees and against Crampton. Because there is substantial
evidence that Crampton’s whistleblower activity was a cause of her
termination, summary judgment should be reversed.
A. Under the Texas Whistleblower Act, to prevail at summary

judgment, the employer must show conclusive proof that
the employee’s report of a violation of law played no role,
however small, in the termination decision.
The Texas Whistleblower Act uses the but-for causation standard.
Dep’t of Hum. Srvs. v. Hinds, 904 S.W.2d 629, 636 (Tex. 1995). But-for
3 When addressing state law claims under supplemental jurisdiction, federal courts
must apply state law to the substantive issues. Felder v. Casey, 487 U.S. 131, 151
(1988) )(“[F]ederal courts are constitutionally obligated to apply state law to state
claims . . . .”).
4 Because DADS assumes Crampton’s reports of violations of law to the OAG and the
OIG were to proper law enforcement authorities, Crampton limits her whistleblower
retaliation claim to the reports she made to those two agencies.
31
causation is not sole cause. The Texas Supreme Court holds that the
standard simply means “the employee's protected conduct must be such
that, without it, the employer's prohibited conduct would not have
occurred when it did.” Id. The Texas Pattern Jury Instructions
recommend explicitly instructing the jury that a plaintiff “does not have
to prove the report was the sole cause of the [adverse action.]” Tex. Pat.
Jury. Inst. 107.4.
Recently, the San Antonio Court of Appeals in reversing summary
judgment stated the standard this way:
Under this standard, the [defendant] cannot negate the

causation element merely by showing that it had other
reasons for [taking adverse action]. To the contrary, the but-
for standard requires conclusive proof that [plaintiff’s report
of a violation of law] did not play a role, however small, in
the [defendant’s] decision.
Torres v. City of San Antonio, No 04-15-664, 2016 WL 7119056 at *4 (Tex.
App.-San Antonio Dec. 7, 2016, no pet.).5
5 Under Texas law, all civil opinions issued since January 1, 2003 have precedential
value. See Tex. R. App. Proc. 47.7(b); see also Tex. R. App. Proc. Cmt to 2008 change
(“All opinions and memorandum opinions in civil cases issued after the 2003
amendment have precedential value.”)
32
B. Evidence that the decision-makers considered an

employee’s whistleblower activity before making an
employment decision is circumstantial evidence of
causation that defeats summary judgment.
Torres v. City of San Antonio is directly on point. In that case, the
San Antonio Court of Appeals reversed summary judgment because
“there is some evidence . . . that [defendants] considered the fact that
Torres reported [a violation of law] when considering whether to select
him for the Arson position.” Id. at *5.
Specifically, Torres, a fire department employee, reported to his
supervisor, a sworn peace officer, and to the San Antonio Office of
Municipal Integrity (OMI) that some former arson investigators were
still using arson badges to access otherwise unauthorized areas of the
police department. Id. at *1. Torres believed this violated the Texas
Penal Code’s prohibition on impersonating peace officers. Id. Later,
when Torres applied to an open arson lieutenant’s position, he was not
selected. Id. at *2. Torres presented evidence that after his interview,
the interview panel discussed his OMI complaint. Id. at *5. The ultimate
decision-maker, the fire chief, listed several reasons that Torres was not
selected, including “lack of leadership, his impulsiveness, [and] his not
understanding the chain of command.” Id. However, the fire chief also
33
admitted that Torres’ “impulsivity to go to OMI without going through
the chain of command” was a factor in the non-selection. Id.
Ultimately, the San Antonio Court of Appeals reversed summary
judgment:
Although the City offered several reasons why Torres was not
selected for the position in question, we are mindful of the fact
that Torres was not required to prove that his reporting of the
fraudulent credentials was the sole reason for his non-
selection. . . . Thus, viewing the entire record in the light most
favorable to Torres, we conclude the City did not negate
causation as a matter of law.
Id.
This Court has applied the same reasoning to find but-for causation
in cases under federal law. For example, in Ion v. Chevron, an FMLA
retaliation case, this Court held that the “mention of [plaintiff’s] absence
from work [which included FMLA leave], in the litany of other complaints
about his actions, showed that [defendant] considered FMLA protected
leave in terminating him.” Ion v. Chevron, 731 F.3d 379, 391-92 (5th Cir.
2013). Significantly, Chevron argued that the reference was “merely a
factual statement, not a reason for Ion’s termination.” Id. at 391.
Rejecting that argument, this Court held:
A reasonable jury could conclude that the inclusion in the

same paragraph listing the reasons for Ion’s termination
34
could indicate that his absence was also a reason for his
termination.
Id. at 392. That evidence met both the but-for and motivating factor
causation standards. Id. at 390.
In Glorioso, this court applied the same reasoning as Torres and Ion
to a Title VII retaliation claim. Glorioso v. Mississippi Dep’t of
Corrections, 193 F.3d 517, No. 99-60147, 1999 WL 706173 at *4 (5th Cir.
1999) (per curiam). 6 In Glorioso, the plaintiff complained of sexual
harassment. Id. Her supervisor then recommended she be terminated
for failing to get along with coworkers. Id. at *2. The recommendation
described “how she had complained both orally and in writing that [a
coworker] had verbally abused her.” Id. The recommendation does not
use the words “sexual harassment” or even state that the Glorioso’s
sexual harassment allegations were a reason for her termination. Id.
Nevertheless, this Court held that the reference to her complaint was a
reference to protected activity. Id. at *6. The employer argued that
reference to the complaint was merely an example of how she did not get
6
While Glorioso was originally designated unpublished, this Court and district courts
have cited it multiple times as good law. See E.E.O.C. v. Rite Way Service, Inc., 819
F.3d 235, 243 n.6 (5th Cir. 2016); Royal v. CCC & R Tres Arboles, L.L.C., 736 F.3d
396, 403 (5th Cir. 2013); Guadalajara v. Honeywell Int’l, Inc., 224 F.Supp.3d 488, 508
(W.D. Tex 2016).
35
along with coworkers, which would be a legitimate reason for
termination. Id at *6. This Court rejected that characterization, holding
the reference to her protected activity in the recommendation to
terminate creates a fact issue for the jury as to causation. Id. at *6.
C. In this case, discovery admissions, meeting notes, internal

emails and witness testimony show Rodriguez, the final
decision-maker, considered her reports in terminating her.
Here, Crampton has provided the same type of evidence the Torres,
Ion, and Glorioso Courts found created a fact issue regarding causation
and precluded summary judgment. Specifically, there is evidence in the
form of discovery admissions, meeting notes, internal emails and
testimony that Rodriguez not only knew of Crampton’s reports to the
Attorney General and the Inspector General, but that they were a factor
in the termination decision.
1. Rodriguez knew of Crampton’s reports to the OAG and

the OIG before she terminated her.
A jury could find Rodriguez knew of Crampton’s complaints to the
Office of the Attorney General and to the Office of the Inspector General.
Regarding Crampton’s complaints to the Attorney General’s office, DADS
admitted in discovery that Rodriguez knew Crampton was
communicating with the OAG. ROA. 663 (Admission No. 9). Regarding
36
Crampton’s complaints to the Office of the Inspector General, there is
copious evidence that she knew. See e.g., ROA.678; ROA.818 (“Rodriguez
said Crampton claimed everything was retaliation and told Rodriguez
she had contacted the Inspector General’s Office.”)
2. The April 1 meeting notes show Crampton’s OIG report

was discussed at the meeting where the termination
decision was made.
There is evidence that her OIG complaint was considered in
terminating her. According to the meeting notes, Crampton’s OIG
complaint, as well as other complaints of violations of law, were discussed
in a management meeting on April 1, 2016:
ROA.678. According to Rodriguez’s own testimony, at that meeting
DADS made the decision to propose Crampton’s termination:
37
ROA.615. This is similar to Torres, Ion, and Glorioso where evidence that
protected activity was discussed or referenced at the same time adverse
action was taken precluded summary judgment.
3. Rodriguez’s testimony that she considered “everything

that’s happened” in deciding to terminate Crampton is
competent summary judgment evidence that allows a
jury to find Crampton’s OIG and OAG reports were a
factor in her termination.
In addition to discussing Crampton’s reports on April 1, Rodriguez
testified that before terminating Crampton on April 15, she considered
everything that had happened “so far”:
38
ROA.615-16. “Everything that’s happened so far” would include
Crampton’s reports of violations of law to the OAG, the OIG, the
Governor, and the 40 other officials she sent her packet of information to.
Therefore, just as in Torres, “there is some evidence . . . that [defendants]
considered the fact that [plaintiff] reported [a violation of law] when
considering whether to” fire her. See Torres, 2016 WL 7119056 at *5.
DADS has not conclusively negated causation as a matter of law. See id.
Summary judgment must be reversed.
39
D. Temporal proximity of less than four months between

protected activity and retaliatory acts constitutes
circumstantial evidence of prima facie causation that
defeats summary judgment.
Temporal proximity is also evidence of causation. Patton v. Harris
Cnty Comm. Superv. & Corr. Dept., No. 14-04-00683-CV, 2005 WL
3116405 at *5 (Tex. App.—Houston [14th Dist.] 2005, pet. denied).
Under the Texas Whistleblower Act, an adverse action occurring within
90 days of a report of a violation of law creates a rebuttable presumption
that the protected activity caused the adverse action. Tex. Gov. Code
554.004(a). Even if the presumption is rebutted, “the facts that give rise
to the presumption remain for the jury’s consideration.” Garza v. City of
Mission, 684 S.W.2d 148, 152 (Tex. App.—Corpus Christi-Edinburg 1984,
no pet.).
In the Fifth Circuit, “a time lapse of up to four months has been
found sufficient to satisfy the [prima facie] causal connection for
summary judgment purposes.” Evans v. City of Houston, 246 F.3d 344,
254 (5th Cir. 2001).
Here, the chronology of events shows that within days, sometimes
hours of making a whistleblower complaint or of DADS learning of the
complaint, Crampton was disciplined. See Facts § A.
40
The close temporal proximity is most striking concerning the events
of April 1, 2016. On that day, Crampton told Rodriguez that she had
made a whistleblower complaint to the OIG. ROA.818. Later that same
day, Rodriguez met with several other members of DADS management.
ROA.678 (listing meeting attendees as “Amy, Cindy, Shelley, Jill, Sylvia,
Joanna.”). One of the first topics of conversation was Crampton’s OIG
report. Id. By the end of that meeting, Rodriguez and the others had
“drafted a decision . . . . [A] Proposal for Dismissal.” ROA.615:2-5. Two
weeks later, Crampton was terminated. ROA.271.
Not only does this extremely close temporal proximity defeat
summary judgment, but it alone would uphold a jury verdict because “a
verdict for retaliatory discharge may be based upon the immediacy of
suspension or termination following a report.” See Tomhave v. Oaks
Psych. Hosp., 82 S.W.3d 381, 386 (Tex. App.—Austin 2002, pet. denied),
disapproved of on other grounds by Binur v. Jacobo, 135 S.W.3d 646, 651
n.11 (Tex. 2004).7
7In Binur, the Texas Supreme Court said, “We disapprove of decisions that hold or
imply that, if a party attaches evidence to a motion for summary judgment, any
request for summary judgment under Rule 166a(i) [no-evidence summary judgment
motion] will be disregarded” Binur, 135 S.W.3d at 651.
41
Summary judgment could be reversed for this reason alone.
E. The district court erred by refusing to make reasonable

inferences in favor of Crampton from the fact that
Rodriguez and DADS management discussed her OIG
whistleblower complaint at the very meeting where DADS
decided to propose her termination.
The district court rejected all of the above evidence, holding that
the “cited evidence merely establishes knowledge of Crampton’s
complaints of alleged wrongdoing.” ROA.739. This is an extremely
narrow reading of the evidence that not only fails to make reasonable
inferences in favor of Crampton, but actually makes the opposite
inferences in favor of DADS.
First, the district court held no favorable inferences could be drawn
from the fact that the OIG report was discussed in the meeting in which
it was decided to terminate her:
Evidence Meeting notes show DADS discussed

Crampton’s OIG report at the meeting in
which it decided to propose her termination.
ROA.678; ROA.615.
Reasonable Inference: A jury could infer that the topics discussed at

a meeting were factors in the decisions made
at the meeting. As such, Crampton’s OIG
report played a role in the decision to
terminate her made during that meeting.
42
District Court’s “There is no indication Crampton’s report

Inference: motivated Defendants to terminate her
employment.” ROA.739
Caselaw that conflicts “Drawing all reasonable inferences in favor of

with the Trial Court’s the nonmoving party, a reasonable jury could
inference: conclude that the inclusion of this statement
[concerning FMLA leave] in the same
paragraph listing reasons for Ion’s termination
could indicate that his absence was also a
reason for his termination.”
Ion, 731 F.3d at 391-92.
Second, the district court rejected any inferences that could be
drawn from close temporal proximity:
Evidence: Crampton told Rodriguez that she had

reported violations of law to the OIG on April
1, 2016. ROA.818. The OIG report was
discussed later that day in a meeting in which
DADS decided to propose Crampton’s
termination. ROA.678; ROA.615. Crampton
was fired two weeks later. ROA.271
Reasonable Inference: Crampton’s OIG report played a role the

decision to terminate her.
District Court’s “The timing of Crampton’s termination is less

Inference: suspect than suggested.” ROA.740.
“Defendants have offered ample evidence of a
non-retaliatory basis for Crampton’s
termination.” Id.
Caselaw that conflicts “[A] verdict for retaliatory discharge may be

with the Court’s based upon the immediacy of suspension or
43
inference: termination following a report.” Tomhave, 82

S.W.3d at 386; see also Patton 2005 WL
3116405 at *5.
“[A] time lapse of up to four months has been

found sufficient to satisfy the causal
connection for summary judgment purposes.”
Evans, 246 F.3d at 254.
Finally, the district court held Crampton’s own testimony that she
was terminated in retaliation for engaging in several different acts,
including whistleblower and first amendment activity, conclusively
negated any causal connection between her whistleblower activity and
termination:
Evidence: Crampton testified, “I think I was fired from

DADS for calling Abbott, Paxton, [McCaul],
sending out all the letters that I sent out . . .
for notifying people about what was going on.”
ROA.162 at page 155:16-20
Crampton also said race and other potentially

protected activities may have been a factor.
ROA.162 at page 156:3-12; ROA.741
Reasonable Inference: Crampton believes she was terminated in

retaliation for various acts including
whistleblower and first amendment activity.
District Court’s “Crampton’s own statements undermine any

Inference: causal connection between her termination
and her reports to the OIG and OAG.”
ROA.741.
44
Caselaw that conflicts The Whistleblower Act does not require sole
with the Court’s cause. Torres, 2016 WL 7119056 at *5.
inference: (“Although the City offered several reasons
why Torres was not selected for the position in
question, we are mindful of the fact that Torres
was not required to prove that his reporting of
the fraudulent credentials was the sole reason
for his non-selection.”)
“We reject Jackson State's suggestion

that Robinson's own speculation about the
reasons for his firing somehow precluded the
jury from finding actual discrimination. We
find no authority for that proposition, and
instead, it conflicts with the essence of our
retaliation inquiry: we look to the “real reason”
for the termination, not an employee's
“subjective belief” about its impetus.”
Robinson v. Jackson State Univ., No. 16-
60760, 2017 WL 6003389 at *7 (5th Cir. Dec.
4, 2017) (per curiam)
Because the district court did not make reasonable inferences in
favor of Crampton that would allow a jury to find causation, summary
judgment should be reversed.
45
III. Summary Judgment should be reversed because contrary to the

district court’s opinion, Crampton’s complaint, DADS summary
judgment motion, Crampton’s summary judgment response,
and the evidence in the record all identify the precise speech
Crampton contends is subject to First Amendment and Texas
Constitutional protection
To prove a First Amendment retaliation claim, Ms. Crampton must
show (1) she suffered an adverse employment action; (2) she spoke as a
citizen on a matter of public concern; (3) her interest in commenting on
matters of public concern outweighs the defendants’ interest in promoting
efficiency; and (4) her speech motivated the adverse action. See Beattie v.
Madison Cnty. Sch. Dist., 254 F.3d 595, 601 (5th Cir. 2001); see also Davis
v. McKinney, 518 F.3d 304, 312 (5th Cir. 2008) (adding citizen speech
requirement).
The district court granted summary judgment because Crampton
allegedly failed to identify “the precise speech underlying her claims.”
ROA.743. Surprising to support its ruling, the district court then
proceeds to identify the precise speech Crampton claims is entitled to
protection and even cites to the very portions of the record where
Crampton identifies that speech as the bases for her constitutional
claims.
46
First, the district court lists all of the reports of violations of laws
and misconduct Crampton describes in her complaint. See ROA.743
(“Crampton’s complaint refers to numerous communications made to
various persons and agencies at various times. See Pet.[#1-4] at ¶¶36,
41, 43, 45, 46, 55-57, 59.”). While not cited by the district court,
Crampton’s complaint goes on to explicitly state which of these
complaints she alleges are entitled to protection and to whom they were
made. Specifically, under section VI, Plaintiff states the following:
ROA.28. Under section VII, Crampton states the same thing regarding
her Texas Constitutional claims. See ROA.28-29.

47
Second, the district court then cites to Crampton’s response to
DADS’ motion for summary judgment, saying “Crampton’s response . . .
refers generally to her whistleblowing activity detailed above. See Resp.
[#26] at 10 (referring back presumably to the eight pages of factual
background recounting numerous reports.)”. ROA.743 (citing ROA.565).
Once again, the district court is entirely correct, but incomplete in a way
that favors DADS. Crampton does allege the reports detailed in the fact
section of her response are entitled to constitutional protection and does
refer back to that section. See ROA.565. However, the district court
implies in DADS’ favor that Crampton’s general reference to the facts
section of her response is the only detail she provides regarding the
reports. That is simply incorrect. Here is the full paragraph from
Crampton’s response the district court cites to:
48
ROA.565-66. As the full paragraph in context shows, Crampton not only
generally refers to her facts section, but also explicitly details the
complaints and cites to them in the record. Indeed, Crampton even cites
to Defendants’ own Exhibit B, which Defendants themselves refer to as
“Plaintiff’s ‘Report’ to Outside Agencies.” See ROA.119.
Third, the district court cites to Crampton’s testimony that she
submitted “initial reports of alleged wrongdoing to ‘over 40, 50 people’
and she admits being unable to recall who she complained to and when.
See Crampton Dep. Tr. at APPX-0012-14.” ROA.743 (citing ROA.133-35).
As with the two prior statements detailed above, the district court’s
statement and citation to the record where this evidence is located is
correct, but it is also incomplete and misleading in favor of DADS.
According to very transcript pages cited by the district court, Crampton
sent the same packet of information to 40 or 50 people. ROA.133 at page
39:13-25. Both Crampton and DADS acknowledge that the people
included the Governor, the Attorney General, the OIG’s office and several
49
congressmen. ROA.133 at pages 39-41. The packets of information were
sent out in two sets. ROA.134 at page 45:10-18. The first round was sent
out in September and October. Id. at 45:19-25. The packet of information
that was sent is referred to as Exhibit 40 in the deposition. Id. Exhibit
40 in Crampton’s deposition is Defendant’s Exhibit B to their motion for
summary judgment. See ROA.166 (see exhibit sticker). It is undisputed
that the packet of information was received by the Office of the Governor
on October 23, 2015. ROA.166 (date stamp at the top listing Oct. 23,
2016). Moreover, DADS refers to this document as “Plaintiff’s ‘Report’ to
Outside Agencies.” See ROA.119.
Therefore, to grant summary judgment on the basis that Crampton
failed to precisely identify the speech at issue required the district court
to not only ignore the contrary evidence Crampton provided and cited to,
but to also selectively credit DADS’ own characterization and concessions
regarding the evidence. Such an “approach is inconsistent with
fundamental rules governing summary judgment.” Heinsohn, 832 F.3d
at 245. Summary judgment must be reversed.
50
IV. Summary Judgment should be reversed on Crampton’s First

Amendment and Texas Constitutional claims because the
district court erroneously held allegations that DADS was
violating the Health and Safety Code, fraudulently fining
agencies, and forging documents are not matters of public
concern because of Crampton’s own personal motivation in
reporting them.
The district court also held that “as a matter of law Crampton’s
speech was not directed to a matter of public concern” because “Crampton
was motivated primarily by private considerations.” ROA.743-44. 8
Specifically, the district court states that upon “close review” of the record
Crampton primarily spoke out because she wanted to save her job and
not be retaliated against by DADS. ROA.744. According to the district
court, this renders Crampton’s complaints that DADS was unlawfully not
checking qualifications for personnel changes, DADS was potentially
fraudulently fining agencies, and that her supervisor was forging
documents not matters of public concern. ROA.743-44.
8 The district court’s opinion did not address whether Crampton spoke as a citizen.
Appellee’s motion for summary judgment combined the citizen-speech and public
concern elements together and argued Crampton’s personal motivations negated
both. ROA.107. As explained in subsections IV.A-B of this brief, Appellee’s argument
is foreclosed by Modica. Additionally, Appellant addressed this issue in her
Summary Judgment Response brief. See ROA.566-67. A public employee speaks as
a citizen if the “public employee takes his job concerns to persons outside the
workplace.” Davis v. McKinney, 518 F.3d 304, 313 (5th Cir. 2008). Here, there can be
no question that Crampton took her concerns outside the workplace by going to her
elected representatives, including the Governor, the Attorney General, the OIG, and
others. See ROA.119 (“Plaintiff’s ‘Report’ to Outside Agencies.”).
51
The district court’s ruling is both factually and legally erroneous.
It must be reversed.
A. Contrary to the district court’s opinion, Crampton’s report

of fraud, forgery, and violations of the Health and Safety
Code were not primarily motivated by a desire to save her
job because she reported it prior to receiving any formal
discipline and the cover letter to the report states she is
reporting the legal violations because she does not want
someone to get hurt.
The district court granted summary judgment because it held that
Crampton’s reports of legal violations by DADS were made because she
was primarily motivated by the private consideration of saving her job.
ROA.744. The district court specifically states that Crampton’s reports
came after “her initial discipline by Rodriguez,” which occurred in
November 2015. ROA.744 (citing ROA.251). This is simply not true.
According to Crampton’s deposition, she sent out her reports in
September and October. See ROA.134:10-21. According to DADS’ own
Exhibit B to their motion for summary judgment, the report to the
Governor happened no later than October 23, 2015. ROA.166 (see date
stamp). Indeed, Rodriguez learned of the report Governor’s Office before
she gave Crampton her first disciplinary write-up on November 9. See
ROA.134 at page 43:13-24; ROA.586 at ¶ 2. Therefore, Crampton could
52
not have been motivated by a desire to save her job because she had not
even been written-up yet.
Second and more importantly, the cover letter Crampton sent with
the packet of information explicitly details why she is making the report:
I believe [Sylvia Rodriguez] has jeopardized our agency, to the

point in which someone is going to get hurt. I have voiced my
concerns with Bobby Schmidt and Cindy Bourland to no avail.
. . . [W]e have done a disgrace for the people of Texas.
ROA.166. Nowhere in the cover letter does she state she is concerned she
will be fired.
At the very least this creates a fact issue that a jury must resolve.
B. Applying the “content, form, and context” factors to

Crampton’s reports to elected officials and the Inspector
General establishes she spoke on a matter of public concern.
In determining whether a public employee has spoken on a matter
of public concern, this Court considers the “content, form, and context of
a given statement, as revealed by the whole record. Modica v. Taylor,
465 F.3d 174, 180 (5th Cir. 2006).
The Modica case is directly on point. In Modica, an inspector for
the Texas Cosmetology Commission sent a letter to State Representative
Roberto Gutierrez accusing his employer of inappropriate activities in the
workplace, preferential treatment of certain schools, and misuse of public
53
funds. Id. This Court held that the letter contained both private
workplace issues and matters of public concern. Id. However, this Court
explicitly stated:
The existence of an element of personal interest on the part of

an employee in the speech does not prevent finding that the
speech as a whole raises issues of public concern.
Id. at 180 (internal quotations omitted). Therefore, this Court examined
the content, form, and context to determine whether the letter was
entitled to constitutional protection. Id.
First, this Court held that the content of the letter was a matter of
public concern because Modica’s letter “raised concerns about the misuse
of public funds.” Id. (citing Branton v. City of Dallas, 272 F.3d 730, 739
(5th Cir. 2001)). This Court found that even though the letter expressed
private concerns relating to management policies, “the letter’s primary
focus is [the defendant’s] malfeasance.” Id.
Second, this Court held that the form of Modica’s speech, a letter to
an elected official, “militates in favor of protection.” Id. at 181.
Specifically, this Court held that because Modica sent a letter outside the
agency and the letter focused on the impact “management had on the
public,” the form of the speech “was primarily public. Id.
54
Finally, the context of the letter to the elected official “favors
protection.” Id. On this element this Court stated:
Although there is evidence of an employer-employee dispute

in the underlying circumstances, namely the reassignment of
Larry Perkins and Modica's allegations of retaliation, the
majority of Modica's concerns did not relate to this dispute nor
her job, but to the operation of the TCC as a whole.
Id.
Here, the exact same considerations apply. Crampton sent the
same packet of information to 40 or 50 public officials including the
Governor, the Attorney General, the OIG’s office and several
congressmen. ROA.133 at pages 39-41. Like in Modica, the content of
the packet favors protection. The primary focus of the cover letter and
the enclosed documents is on how DADS’s policies violate applicable laws
and could result in real people getting hurt. See ROA.166-222; see also
Facts § E. Like in Modica, the form as a letter to elected officials is
primarily focused on the impact DADS’ policies will have on the public.
ROA.166 (“I believe [Sylvia Rodriguez] has jeopardized our agency, to the
point in which someone is going to get hurt.”). Finally, as in Modica the
context favors protection because the packet of evidence has to do with
the operation of DADS as a whole and how they are not following the
55
laws in reviewing qualifications for personnel changes at home health
agencies. ROA.166-222. Indeed, the packet does not mention that
Crampton fears for her job or is doing it to protect herself. Id.
These factors also all weigh in favor of protection for Crampton’s
December 2015 OIG complaint, the February 2016 email to Kirk Watson,
and her March 2016 packet to Representative McCaul. Regarding the
OIG complaint, Crampton sent the same documents as the packet of
information and an email “explaining alleged misconduct by Rodriguez.”
ROA.809-10. She later supplemented her complaint to allege fraud and
forgery regarding renewal letters. ROA.839. Similarly, Crampton’s
letter to Kirk Watson seeks help because of Rodriguez’s violations of law
and “life has been very hard here trying to make sure the elderly and sick
have the right people going into their homes.” ROA. 654-55. Finally, in
March 2016, Crampton made similar complaints to Representative
McCaul. ROA.658. The primary focus of these additional complaints is
on how DADS’ violations could affect the public.
Because all of these complaints primarily focus on how DADS’
violations of law will affect the public and the customers of the agency
56
they are entitled to constitutional protection under Modica. Modica, 465
F.3d at 180-81. Summary judgment must be reversed.
C. The district court misapplied this Court’s decision in Harris

ex rel. Harris v. Potomac County School District in
dismissing Crampton’s constitutional claim on the basis
that her personal motivation in speaking out abrogates
constitutional protection.
In dismissing Crampton’s constitutional claims based on
Crampton’s personal motivations, the district court relied solely on
Harris ex rel. Harris v. Potomac County School District, 635 F.3d 685 (5th
Cir. 2011). ROA.744. While that case does say “the court examines . . .
the speaker’s motivation” in determining whether the first amendment
protects employee speech, the district court takes that phrase out of
context and misapplies the holding.
In Harris, a teacher alleged first amendment violations because she
“complained [to her superintendent] about the treatment her child
received in a discreet incident.” Harris, 635 F.3d at 692. The teacher also
complained to her superintendent about her reassignment. Id. at 689. In
that case, this Court did not hold that Harris’ personal motivations in
complaining about the treatment of her child or her reassignment
rendered her complaints unprotected by the first amendment. Instead,
57
this Court simply held that the complaints were personal matters. Id. at
692 (“Both matters are personal.”). In other words, this Court held that
the content, form, and context of the teacher’s speech—internal
complaints to her superintendent about her child’s treatment and her job
assignment—did not involve matters of public concern. See id.
Here, as described in the previous section that is decidedly not the
case. Crampton sent numerous letters to her elected officials and outside
government agencies. In those letters and complaints, Crampton made
allegations of fraud, forgery, and violations of the Health and Safety code.
Her letters and complaints primarily focused on the effect those
violations could have on the public. Harris is simply inapplicable to facts
like that.
Summary judgment should be reversed.
V. The district court abused its discretion in denying Crampton’s

motion to supplement the summary judgment record because
all four Freeman factors favor admitting the declaration from
Crampton’s former manager.
The district court denied Crampton’s motion for leave to file a newly
obtained declaration from Crampton’s former manager, Mary Jo
Grassmuck. ROA.736. The district court held that Crampton should
have obtained the declaration during the discovery period and her failure
58
to do so required denial of the motion. Id. The district court’s ruling
relies on erroneous facts and a misapplication of the law.
This court reviews denials of motions to supplement the record for
abuse of discretion. See Performance Autoplex II Ltd. v. Mid-Continent
Casualty Co., 322 F.3d 847, 862 (5th Cir. 2003). In deciding whether to
accept additional evidence, a district court should consider the Freeman
factors:
(1) the moving party's reasons for not originally submitting

the evidence; (2) the importance of the omitted evidence to the
moving party's case; (3) whether the evidence was previously
available to the non-moving party when it responded to the
summary judgment motion; and (4) the likelihood of unfair
prejudice to the non-moving party if the evidence is accepted.
Id.9 (citing Freeman v. Cnty of Bexar, 142 F.3d 848, 852 (5th Cir.
1998)).
Here, each of these factors weighs in favor of allowing admission of
the declaration. Regarding the first fact, the reason the evidence was not
originally submitted with Crampton’s summary judgment response was
because it did not exist at that time. See ROA.705 (dated August 1, 2017).
9 These factors are used by district courts in deciding whether to accept additional
summary judgment evidence after a magistrate judge has already issued a
recommendation on a motion for summary judgment. Performance Autoplex, 322
F.3d at 862. However, these factors could equally apply to a district court’s decision
to accept new evidence in the first instance prior to ruling on a pending motion.
59
Although Crampton had been attempting to obtain the declaration since
July 17, 2017 in order to meet her filing deadline of July 21, 2017,
Grassmuck did not sign the declaration until August 1, 2017. ROA.701-
05. Therefore, Crampton could not have submitted the document before
then. This factor weighs in favor of admission.
Regarding the second factor, Grassmuck’s declaration is very
important to her case. The district court would not have been able to rule
that “the evidence suggests a continued pattern of behavioral issues”
because Grassmuck’s declaration contradicts that. ROA.741. In her
declaration, Grassmuck states she “never had any problems with her,”
Crampton was “never disrespectful, snide, or rude to me . . . [and] I never
witnessed her act that way towards other people.” ROA.704 ¶¶ 6-8. At
trial, a jury would be allowed to believe Grassmuck’s testimony and could
therefore find in favor of Crampton. Further, as detailed in Crampton’s
motion for leave, the facts Grassmuck details provide evidence of pretext
in that Rodriguez has a reputation for holding grudges and retaliating
against employees. ROA.701-02; ROA.705. This factor also weighs in
favor of admission.
60
Regarding the third factor, the facts revealed in the declaration
were available to the non-moving party prior to them filing their motion
for summary judgment. ROA.708. In fact, Appellees have admitted that
“Grassmuck was disclosed as a potential witness in Defendants’ initial
disclosures.” In other words, Appellees both knew Grassmuck had
relevant information and had access to it prior to their motion. See id.
This factor weighs in favor of admission.
Regarding the final factor, the motion to supplement was filed on
August 7, 2017, less than three weeks after Crampton’s response was
filed and only ten days after Appellees’ reply brief was filed. The ruling
on the summary judgment motion occurred over four months later in
November. ROA.5. Moreover, Appellees have never alleged that the
inclusion of the declaration would cause unfair prejudice. See ROA.707-
08. In any event, there is little likelihood of unfair prejudice since the
declaration simply illustrates the type of testimony that Grassmuck
would provide at trial. Further, had the declaration been available at the
time of Crampton’s filing deadline, she could have included it without
issue. See Fed. R. Civ. P. 56(c)(1)(A) (permitting declarations as part of
summary judgment evidence). As such, any prejudice could be
61
adequately addressed through vigorous cross-examination during trial.
This factor also weighs in favor of admission.
The district court failed to analyze all of these factors. Instead,
the district court held that Crampton should have obtained the
declaration prior to the end of discovery. But that is unrealistic.
Crampton could not have obtained the declaration during the discovery
process because she did not know what Appellees were going to seek
summary judgment on. Indeed, Crampton had no reason to think that
Appellees would move for summary judgment on facts that their own
disclosed witnesses would dispute.
Since all of the factors favor allowing supplementation, the district
court abused its discretion in denying Crampton’s motion. Therefore, the
district court’s order should be reversed.
CONCLUSION
Crampton presented competent summary judgment evidence in the
form of meeting notes and testimony, both showing DADS considered her
whistleblower activity in deciding to fire her. Under Torres, Ion, and
Glorioso, such evidence creates a fact issue regarding causation for the
62
jury. Summary Judgment should be reversed on Crampton’s
whistleblower claim.
Crampton presented competent summary judgment evidence that
precisely identified the speech she alleges is entitled to constitutional
protection. She presented evidence that she went to her elected
representatives and outside agencies with reports of violations of law
that could result in actual harm to the public. Under Modica, Crampton’s
reports to her elected officials and the outside agencies are protected by
the First Amendment and the Texas Constitution. Summary judgment
should be reversed on her constitutional claims.
Finally, the district court abused its discretion in not allowing
Crampton to submit a declaration from her former supervisor when there
was no evidence of prejudice or harm and the witness was already known
and had been disclosed by Appellees. Crampton’s motion to supplement
the record should have been granted.
In conclusion, Appellant requests this Court reverse the district
court’s grant of summary judgment and denial of leave to supplement the
summary judgment record.
63
CERTIFICATE OF SERVICE
I, Colin Walsh, certify that today, March 2, 2018, a copy of the
Initial Brief of Appellant was served upon Counsel of Record for the
Appellees via the Court’s ECF system.
/s/ Colin Walsh

Colin Walsh
CERTIFICATE OF COMPLIANCE
Pursuant to Fed. R. App. P. 32(g), undersigned counsel certifies
that this brief complies with the type-volume limitations of Fed. R. App.
P. 32(a)(7)(B)(i).
1. Exclusive of the portions exempted by Fed. R. App. P. 32(f), this
brief contains 10,987 words printed in a proportionally spaced typeface.
2. This brief is printed in a proportionally spaced, serif typeface using
Century Schoolbook 14-point font in text and Century Schoolbook 12-
point font in footnotes produced by Microsoft Word.
3. Upon request, undersigned counsel will provide an electronic
version of this brief and/or a copy of the word printout to the Court.
4. Undersigned counsel understands that a material
misrepresentation in completing this certificate, or circumvention of the
64
type-volume limits in Fed. R. App. P. 32(a)(7)(B)(i), may result in the
Court’s striking this brief and imposing sanctions against the person who
signed it.
/s/ Colin Walsh

Colin Walsh
65

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Case: 17-51126 Document: 00514370288 Page: 1 Date Filed: 03/02/2018

IN THE UNITED STATES COURT OF APPEALS

JON WEIZENBAUM, individually and in his official capacity, SYLVIA

Appeal from the United States District Court

INITIAL BRIEF OF APPELLANT

WILEY WALSH, P.C.

CERTIFICATE OF INTERESTED PERSONS

The undersigned counsel of record certifies that the following listed

persons and entities as described in the fourth sentence of Rule 28.2.1

have an interest in the outcome of this case. These representations are

Jennifer Crampton – Plaintiff/Appellant

Colin Walsh – Counsel for Plaintiff/Appellant

Robert J. Wiley – Counsel for Plaintiff/Appellant

Wiley Walsh, P.C. – Counsel for Plaintiff/Appellant

Jon Weizenbaum – Defendant/Appellee

Sylvia Rodriguez – Defendant/Appellee

Texas Department of Aging and Disability Services –

Susan Watson – Counsel for Defendant

Heather Hacker – Counsel for Appellees

Texas Office of the Attorney General – Counsel for Defendant

Texas Office of the Solicitor General – Counsel for Appellees

/s/ Colin Walsh

REQUEST FOR ORAL ARGUMENT

Appellant requests oral argument on two matters:

Does the decision-makers’ discussion of an employee’s protected

activity during a termination meeting allow for a reasonable inference of

retaliation? In this Texas Whistleblower Act case, handwritten meeting

notes show the decision-makers discussed Appellant’s complaint of

violations of law to the Office of the Inspector General at a management

meeting. According to testimony by Appellant’s manager, that

management meeting resulted in the decision to propose Appellant’s

evidence in the light most favorable to Appellant and to make reasonable

the San Antonio Court of Appeals decision in Torres v. City of San

Antonio, No 04-15-664, 2016 WL 7119056 (Tex. App. – San Antonio Dec.

Are complaints to elected representatives that statutorily

concern entitled to constitutional protection? In this case, Appellant sent

a detailed packet of information to numerous public officials (e.g.,

Governor Abbott, Attorney General Paxton, Congressman McCaul, etc.)

content, form, and context of Appellant’s complaints, instead finding that

her personal interest in making those allegations stripped them of any

constitutional protection. The district court’s ruling conflicts with

Modica v. Taylor, 465 F.3d 174 (5th Cir. 2006).

would be helpful to the Court in determining what reasonable inferences

of that meeting as well as whether complaints to elected officials alleging

violations of law and misconduct constitute matters of public concern.

CERTIFICATE OF INTERESTED PERSONS .........................................ii

A. DADS discussed Crampton’s OIG whistleblower complaint in the

B. DADS hired Crampton in December 2014. DADS thought she was

1. Mary Jo Grassmuck, Crampton’s original manager, rated her

2. Co-workers also thought highly of Crampton .......................... 10

C. Grassmuck retired in June 2015 and was replaced by Sylvia

1. Rodriguez lacked management and subject-matter experience.

2. Rodriguez also had a reputation for holding grudges and

D. In September 2015, Rodriguez directed employees to stop reviewing

E. Crampton felt compelled to report the violations of law she

1. In September and October, Crampton engaged in whistleblower

2. In October, Ms. Crampton engaged in free speech when she

F. After Crampton reported the violations of law, Rodriguez and

1. Hours after Rodriguez found out Crampton had both

2. A few days after Crampton’s first write-up, Bourland and

3. In late November, HHS Commissioner Jon Weizenbaum found

G. Because DADS did not address Crampton’s concerns and instead

H. DADS did not stop retaliating against Crampton.......................... 20

1. Weizenbaum denied Crampton’s grievance and refused to