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Civil Litigation No. 05-02-01675-CV, 4/14/2003. Click here for the full text of this decision FACTS: Craig Colbert brings this interlocutory appeal from the denial of his motion for summary judgment based on official immunity. After Robbie Hollis’ employment with the Texas Department of Protective and Regulatory Services was terminated, she sued TDPRS and Colbert alleging wrongful termination, intentional infliction of emotional distress and defamation. HOLDING: Affirmed. In his motion for summary judgment, Colbert alleges he acted in good faith because he recommended that Hollis be terminated after an internal investigation showed that Hollis failed to properly investigate cases assigned to her and had falsified entries in her case files. In support of his motion, Colbert relies on his affidavit and the affidavit of Patricia Hackler, the Regional Director for TDPRS. These affidavits show that Colbert and Hackler based their decision to terminate Hollis on John Ralston’s report of his investigation. According to Colbert, he decided to have Hollis investigated after he noticed discrepancies in her case documentation and the sign out log. Colbert also stated he had received complaints indicating Hollis had not interviewed clients, but had documented that she had interviewed or talked with them. After Colbert requested an investigation by the Office of Internal Investigations, Ralston was assigned to conduct the investigation. In his report, Ralston identified numerous cases in which Hollis falsified records. In some of the cases, Hollis documented home visits, but the clients told Ralston they had never seen or met with Hollis. Several of the cases involved falsified narratives of telephone calls. This evidence establishes that Colbert acted in good faith in the furtherance of his duties and that Hollis’s termination was the result of Colbert’s and Hackler’s belief that the misconduct outlined in Ralston’s report occurred. Thus, the burden shifted to Hollis to show that no reasonable person in Colbert’s position could have thought the facts were such that they justified his action. To meet this burden, Hollis introduced evidence to show that 1. Colbert acted in a racially discriminatory manner – a clear violation of the law; 2. Colbert fabricated a reason to terminate Hollis; and 3. his failure to consider the entirety of her work constitutes bad faith. In sum, Hollis maintains that her summary judgment evidence creates a fact issue regarding whether Colbert manufactured the allegations against her because she was an African-American woman. To support this allegation, she relies, in part, on evidence showing that Colbert initiated the investigation of Hollis shortly after Beverly Collins, a former TDPRS employee, warned Hollis that things were not “going to be easy” for Hollis because Hollis had defended Collins to Colbert. Hollis’ summary judgment evidence also shows that Colbert could access Hollis’ computer files and could enter or amend information contained in her case files. Employees in the office had complained that Colbert had changed information contained in their case files. Collins testified that after she noticed changes being made in her case files, she began keeping hard copies of her entries. After Collins made it known in the office that she was doing so, she no longer noticed changes being made to her files. Computer audit trail reports show that Colbert accessed the case file on two of the cases Hollis is accused of falsifying. The computer audit reports contained in the record do not show that Hollis ever accessed at least one of the files she is accused of falsifying. This evidence, when taken as true, with all reasonable inferences taken in Hollis’ favor, creates a fact issue regarding whether Colbert acted in good faith. In making this determination, the court expresses no opinion on whether the evidence supporting Hollis’ response preponderates against the proof supporting Colbert’s motion for summary judgment. The court concludes that because one of the main reasons proffered for terminating Hollis was that she had falsified entries in certain case files and there is evidence, which if taken as true with all reasonable inferences in Hollis’ favor, suggests that Colbert, not Hollis, made alterations in at least one of the questioned files, there is a fact issue regarding whether Colbert acted in good faith. Because Hollis’ evidence is sufficient to create a fact issue regarding whether Colbert acted in good faith, the court concludes the trial court properly denied Colbert’s motion for summary judgment on the basis of official immunity. OPINION: Wright, J.; Wright, FitzGerald, and Lang, JJ.

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