Trial Summary

______________________________________________________________________________________ JOINT PRETRIAL ORDER PAGE 1

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION BRUTON STEPHENS, SR., §

§ Plaintiff, §

§ v. § No. 3:10-CV-0191-O

§ CITY OF DALLAS, §

§ Defendant. §

JOINT PRETRIAL ORDER Summary of the Claims and Defenses of Each Party

Plaintiff

1. Plaintiff suffered adverse employment actions during his employment with the City of

Dallas because he made good faith reports of workplace and criminal misconduct,

including theft by City of Dallas employees, and good faith reports of discrimination and

retaliation to the Equal Employment Opportunity Commission, the City of Dallas and its

employees and policymakers, the Dallas Police Department, and local news media.

2. The materially adverse employment actions include assigning Plaintiff to clean the

parking lot, removing him from “lead technician” duties, and terminating Plaintiff’s

employment with the City of Dallas under the guise of a reduction in force effective

October 1, 2009.

3. Plaintiff engaged in speech involving a matter of public concern when he reported

workplace and criminal misconduct, including reports of theft by City of Dallas

Case 3:10-cv-00191-O-BD Document 91 Filed 10/19/12 Page 1 of 22 PageID 2801


employees, and made allegations of discrimination and retaliation to the Equal

Employment Opportunity Commission, the City of Dallas and its employees and

policymakers, the Dallas Police Department, and local news outlets.

4. Plaintiff’s interest in commenting on matters of public concern outweighs Defendant’s

interest in promoting efficiency.

5. Plaintiff suffered adverse employment actions, including being assigned to clean the



October 1, 2009, as a result of his protected speech, in violation of the United States

Constitution and 42 U.S.C. §1983.

6. Plaintiff suffered adverse employment actions as a result of reporting to an appropriate

law enforcement authority, in good faith, violations of law by the City of Dallas and by

City of Dallas employees. The City of Dallas thereby violated the Texas Whistleblower

Act, TEX. GOV. CODE § 554.001 et seq.

7. Plaintiff suffered adverse employment actions, including being assigned to clean the



October 1, 2009, as a result of his protected activities, in violation of Title VII of the

Civil Rights Act of 1964.

8. Plaintiff exhausted administrative remedies and filed suit within the appropriate statute of

limitation or filing deadline for each cause of action at issue in this litigation.



9. Plaintiff is entitled to compensation for his mental anguish and emotional distress and

related medical expenses, his lost wages, attorney’s fees, exemplary damages, pre and

post-judgment interest, and costs of court.

Defendant

Defendant denies all of Plaintiff’s claims, and denies that Plaintiff suffered a

constitutional injury. Defendant further contends that Plaintiff’s alleged injury did not result

directly and only from a City custom having the force of official policy, of which the City’s

policymaker was deliberately indifferent to a known or obvious risk of deprivation of Plaintiff’s

constitutional rights.

Defendant denies that it retaliated against Plaintiff or that Plaintiff suffered the alleged

materially adverse actions. Following Plaintiff’s report of an allegation of theft, the City

reviewed Plaintiff’s allegations, conducted an investigation and took appropriate measures in

accordance with its findings. Defendant denies that it retaliated against Plaintiff for making an

allegation of theft against his co-worker. There is no evidence that Defendant took any adverse

action against Plaintiff because he made an allegation of theft. The evidence revealed that

Defendant took all of Plaintiff’s complaints seriously and addressed them in the appropriate

manner.

It is Defendant’s contention that Plaintiff did not initiate a grievance regarding the notice

of layoff that he received. Therefore, his cause of action pursuant to the Texas Whistleblower

Act, Tex. Gov’t Code §§ 554.001 et seq. is barred. It is also Defendant’s contention that Plaintiff

did not file his lawsuit within 90 days of receiving notice that his position had been selected for

layoff, barring his cause of action due to the statute of limitations. Alternatively, if the Court

and/or the jury decide that Plaintiff initiated a grievance regarding his layoff, it is Defendant’s



contention that his Texas Whistleblower Act, Tex. Gov’t Code §§ 554.001 et seq. cause of action

is nonetheless barred by the statute of limitations.

It is also Defendant’s contention that Plaintiff was laid off as a result of a City-wide

reduction in force, necessitated by a massive budget shortfall, and not in any way as an act of

retaliation because Plaintiff alleges that he made a report of the violation of law to an appropriate

law enforcement authority. Plaintiff’s layoff was the sole result of the reduction in force.

Plaintiff has no evidence that but for having made a report of alleged theft, he would not have

been laid off. Alternatively, if the Plaintiff proves that he was laid off in retaliation for making a

report of alleged theft, Defendant contends that Plaintiff would have been laid off despite the

impermissible factor.

Plaintiff did not engage in protected activity at any time prior to filing a Charge of

Discrimination with the EEOC. Plaintiff has no evidence to establish a causal connection

between making a complaint of discrimination and any of the alleged materially adverse acts.

Defendant asserts that the alleged materially adverse actions taken by Defendant were based

upon legitimate, non-retaliatory business reasons, and Plaintiff has no evidence that he would not

have suffered the alleged materially adverse acts but for having complained of discrimination.

Alternatively, in the event Plaintiff proves he has suffered an adverse employment action, and in

the unlikely event Plaintiff proves that the City’s decision was motivated in part by illegal

discrimination, the City will show that it would have taken the same action against Plaintiff in

the absence of any illegal discrimination.

Defendant contends that no private cause of action for damages exists for Plaintiff to

pursue his free speech retaliation claim under Article I of the Texas Constitution.



Defendant contends that Plaintiff’s alleged exercise of free speech was not

constitutionally protected speech, because he made complaints and reports pursuant to Plaintiff’s

official job duties as a Senior Electronic Technician. Defendant also contends that the matters

that Plaintiff complained about and/or reported are not matters of public concern, and that the

City’s interest in promoting efficiency of public services outweighed Plaintiff’s alleged interest

in speaking on matters of public concern.

Defendant contends that it took no action to chill Plaintiff’s right to exercise his free

speech rights. Being questioned about the topic of Plaintiff’s speech to the City Council is not an

adverse employment action. Being instructed to refrain from discussing the topic of an

administrative investigation with co-workers and other employees is not an adverse employment

action.

Plaintiff has not suffered compensable mental anguish or pain and suffering.

Defendant contends that Plaintiff is not entitled to recovery of damages due to a failure to

make timely and adequate disclosures.

Plaintiff has failed to state a claim upon which relief may be granted.

To the extent that Plaintiff’s cause of action falls outside the applicable statute of

limitations, the City contends that the statute of limitations bars his suit.

To the extent Plaintiff has failed to timely exhaust all administrative remedies, the City

contends that Plaintiff has failed to meet the prerequisites and conditions precedent for filing this

civil action.

The City is not liable to the extent Plaintiff has failed to mitigate his damages.

To the extent that Plaintiff alleges any negligent acts or omissions of the Defendant,

Defendant contends that the immunity of the City of Dallas for negligent acts or omissions of its



officers, agents and employees acting in the course and scope of their employment herein, is

waived only to the extent set forth in the Texas Tort Claims Act, Tex.Civ.Prac. & Rem. Code,

§101.001, et. seq., and that in the unlikely event Plaintiff can prove a cause of action against

Defendant, then Plaintiff’s monetary recovery would be governed by the limits set forth therein.

Defendant invokes the defense of governmental immunity and would show that it is a

municipal corporation organized and existing as a political subdivision and a unit of government

of the State of Texas and a home-rule city under the Home-Rule Amendment to the Constitution

of the State of Texas and the provisions applicable to Home-Rule Municipalities as set forth in

the Local Government Code of the State of Texas.

Defendant contends that Section 101.057(2) of the Texas Tort Claims Act bars recovery

against the City of Dallas for any intentional torts committed by its officers, agents and

employees.

Defendant contends that on all occasions in question all its employees, representatives,

and agents acted in good faith within the scope of their discretionary authority.

Defendant contends that on all occasions in question all its employees, representatives,

and agents did not violate any clearly established law of which a reasonable person would have

known.

Defendant contends that punitive and exemplary damages are not recoverable against

Defendant under Title VII of the Civil Rights Act; the Texas Whistleblower Act, Tex. Gov’t

Code Chapter §§ 554.001 et seq., and 42 U.S.C. §1983. Defendant contends that in the unlikely

event Plaintiff can prove an entitlement to punitive and exemplary damages against Defendant,

then Plaintiff’s monetary recovery would be governed by the limits set forth by Texas Civil

Practice and Remedies Code §41.001, et. seq.



In the unlikely event of a liability finding against it, Defendant City of Dallas pleads

alternatively that it is entitled to the applicable limits and exclusions of damages outlined in 42

U.S.C. 1981a and in Tex. Government Code Chapter 554.003, and hereby notifies Plaintiff of its

intent to assert the statutory damage limitation and exclusions.

Pursuant to the Texas Whistleblower Act, Tex. Gov’t Code § 554.004(b), Defendant

contends that to the extent Plaintiff proves he reported a violation of law in good faith to an

appropriate law enforcement authority, proves that he suffered an adverse personnel action, and

to the extent Plaintiff proves that Defendant’s decision was motivated by illegal retaliation,

Defendant contends that it would have taken the action against Plaintiff solely on information,

observation or evidence that is not related to the fact that the employee made a report protected

under the law.

Defendant contends that Plaintiff’s claims and causes of action are limited to those

matters outlined in his First Amended Complaint, subject to the rulings of the Court on

Defendant’s Motion for Summary Judgment. Defendant objects to and opposes any attempt by

Plaintiff to add any claims or theories of recovery outside of what has been properly pled and is

properly before the Court, or to try any claim, cause of action, or theory of recovery by consent.

II.

Statement of Stipulated Facts



1. At all times relevant to this cause of action, the Defendant City of Dallas is a home-rule

municipality under the Home Rule Amendment to the Constitution of the State of Texas

that employs more than 500 employees.

2. Stephens was hired by the City of Dallas on December 24, 2003, as a Senior Electronic

Technician assigned to the Department of Public Works and Transportation.

3. While employed by the City, Stephens worked as a Senior Electronic Technician in the

Signal Maintenance Division of the Public Works and Transportation Department.

4. Stephens' immediate supervisor was Robert Espinoza (hereinafter "Espinoza").

5. Espinoza's supervisor is Alex Wong (hereinafter "Wong"), who manages the division

where Stephens worked.

6. Elizabeth Ramirez (hereinafter "Ramirez") was the Assistant Director over the division,

and was Wong's direct supervisor.

7. On January 8, 2009, Stephens filed a grievance making several allegations, including an

allegation that a City employee, Michael Driggars, had stolen City property.

8. Stephens filed another grievance on January 23, 2009, alleging that Robert John Stutler,

another City employee, had been driving City vehicles with a suspended driver’s license.

9. Stephens filed a third grievance on March 31, 2009, making allegations of retaliation and

discrimination related to his employment with the City of Dallas.

10. Stephens filed a charge of discrimination and retaliation against the City of Dallas with

the Equal Employment Opportunity Commission on March 30, 2009.

11. Stephens filed three additional grievances, making various allegations, including

allegations of retaliation and discrimination, on June 1, 2009, June 15, 2009, and June 19,

2009.



12. Stephens addressed the Dallas City Council on August 5, 2009.

13. Stephens filed another charge of discrimination and retaliation against the City of Dallas

with the Equal Employment Opportunity Commission on August 21, 2009.

14. Stephens was laid off effective October 1, 2009.

III.

Contested Issues of Fact

If any contested issue of fact should be treated as a contested issue of law, the parties

request that the Court treat it as such; and if any contested issue of law should be treated

as a contested issue of fact, the parties request that the Court treat it as such.

Plaintiff

1. Whether Plaintiff engaged in activity protected under Title VII.

2. Whether Plaintiff engaged in protected speech under the United States Constitution and

42 U.S.C. § 1983.

3. Whether Plaintiff engaged in protected activity under the Texas Whistleblower Act.

4. Whether Plaintiff engaged in protected activity by reporting workplace misconduct and

criminal activity.

5. Whether Plaintiff engaged in protected activity by filing grievances.

6. Whether Plaintiff engaged in protected activity by complaining of discrimination.

7. Whether Plaintiff engaged in protected activity by complaining of retaliation.

8. Whether Plaintiff engaged in protected activity by speaking at a City Council meeting.

9. Whether Plaintiff engaged in protected activity by filing charges of discrimination and

retaliation with the Equal Employment Opportunity Commission.

10. Whether Plaintiff suffered adverse employment action.



11. Whether Plaintiff engaged in speech involving a matter of public concern.

12. Whether Plaintiff’s interest in commenting on matters of public concern outweighed

Defendant’s interest in promoting efficiency.

13. Whether Defendant’s adverse employment actions were motivated by Plaintiff engaging

in protected activity and/or protected speech.

14. Whether Plaintiff's protected activity was a substantial factor motivating Defendant's

adverse employment action.

15. Whether Defendant, its employees and/or agents acted with malice, willfulness or

reckless indifference in engaging in adverse employment actions affecting Plaintiff.

16. Whether Defendant’s adverse employment actions were motivated by Plaintiff’s speech

protected under 42 U.S.C. §1983.


in activity protected under Title VII.


in activity protected under the Texas Whistleblower Act.

19. Whether Plaintiff reported violations of law to a proper law enforcement authority.

20. Whether Plaintiff had a good faith belief he was reporting violations of law to a proper

law enforcement authority.

21. Whether Plaintiff suffered adverse employment action as a result of engaging in protected

activities and/or protected speech.

22. Whether Plaintiff’s termination was an adverse employment action.

23. Whether Plaintiff’s removal of “lead technician” duties was an adverse employment

action.



24. Whether Plaintiff’s assignment to clean the parking lot was an adverse employment

action.

25. Whether Plaintiff initiated a grievance regarding his layoff.

26. If Plaintiff initiated a grievance regarding his layoff, on what date did Plaintiff initiate the

grievance.

27. Whether Plaintiff initiated a grievance regarding his layoff on August 5, 2009, when he

addressed the Mayor and City Council orally and/or in writing.

28. Whether the City of Dallas, its Major, City Council and City Manager were aware of

Bruton Stephens' claims his placement on the RIF List, his removal from leadership

duties, and his assignment to clean the parking lot were motivated by his protected

activity and could reasonably foresee approval or adoption of the proposed employment

action posed a threat to Mr. Stephens' First Amendment rights, a violation of his rights

under Title VII, and a violation of the Texas Whistleblower Act.

29. Whether Plaintiff initiated a grievance regarding his layoff when he incorporated that

complaint in his grievance appeal process.

30. Whether Plaintiff initiated a grievance regarding his layoff when he and Black Citizens

for Justice Law and Order sent correspondence to the City Manager regarding the layoff.

31. If Plaintiff initiated a grievance regarding his layoff, when was the grievance process

completed?

32. Whether the City’s actions and/or statements made the grievance process unclear and

thereby excused Plaintiff from strictly complying with the grievance procedures.

33. Whether Plaintiff was required to initiate a grievance regarding his layoff.



34. Whether Plaintiff filed suit within the applicable statute of limitation or filing deadline

for each cause of action.

35. Whether Defendant and its employees and/or agents acted under color of law at all times

relevant to this litigation.

36. Whether the actions of Defendant, its employees and/or agents complained of in this

litigation were the cause-in-fact and/or proximate case of Plaintiff’s damages.

37. Whether Defendant violated Plaintiff’s free speech rights pursuant to governmental

custom, policy, ordinance, regulation, or decision.

38. Whether Defendant and its employees and/or agents took adverse employment action

against Plaintiff pursuant to governmental custom, policy, ordinance, regulation, or

decision.

39. Whether Plaintiff’s damages are the proximate or legal result of Defendant's policy,

custom, ordinance, regulation, or decision, whether made by its lawmakers or by those

officials whose edicts or acts may fairly be said to represent official policy.

40. Whether Plaintiff is entitled to relief on any cause of action pled.

41. The amount of any award of compensatory damages.

42. The amount of any award of mental anguish damages.

43. The amount of any award of punitive damages.

44. The amount of any award of attorney’s fees (to be decided by the Court).

Defendant

1. Whether Plaintiff engaged in protected activity prior to March 30, 2009.



2. Whether Plaintiff had an objectively good faith belief that what he complained about

prior to March 30, 2009, constituted a violation of the law.

3. Whether Plaintiff engaged in protected activity in order to support a Title VII retaliation

claim.

4. Whether the alleged acts of retaliation are materially adverse as a matter of law.

5. Whether having the duties of processing job tickets and customer service requests being

placed on a six-month rotation among the Senior Electronic Technicians is an adverse

employment and/or personnel action.

6. Whether requiring Plaintiff to share responsibility for the environmental integrity of the

workplace is an adverse employment and/or personnel action.

7. If it is determined that unlawful retaliation was a motivating factor for the City’s decision

to rotate the duties of processing job tickets and customer service requests among the

Senior Electronic Technicians, whether the City of Dallas has proven by a preponderance

of the evidence that it would have taken the same action in the absence of the

impermissible factor.


to require Plaintiff to share responsibility for the environmental integrity of the

workplace, whether the City of Dallas has proven by a preponderance of the evidence

that it would have taken the same action in the absence of the impermissible factor.


to include Plaintiff in the reduction-in-force, whether the City of Dallas has proven by a

preponderance of the evidence that it would have taken the same action in the absence of

the impermissible factor.



10. Whether Plaintiff has satisfied his burden of establishing a prima facie case of unlawful

retaliation under Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e, as amended.

11. If Plaintiff has satisfied his burden of establishing a prima facie case of retaliation,

whether Defendant City of Dallas has articulated legitimate, non-retaliatory business

reasons for the alleged materially adverse acts.

12. Whether Plaintiff has satisfied his burden of establishing that the alleged materially

adverse acts are a pretext for unlawful retaliation, being that the alleged adverse acts

would not have occurred but for Plaintiff having filed a Charge of Discrimination.

13. Whether Plaintiff’s alleged adverse employment actions resulted directly and only from a

City custom having the force of official policy, of which the City’s policymaker was

deliberately indifferent to a known or obvious risk of deprivation of Plaintiff’s

constitutional rights.

14. Whether Plaintiff’s report of alleged theft by Michael Driggars constitutes

constitutionally protected speech.

15. Whether the matters complained of by Plaintiff in his six grievances were pursuant to

Plaintiff’s official job duties as a Senior Electronic Technician.

16. Whether all matters complained of by Plaintiff were pursuant to Plaintiff’s official job

duties as a Senior Electronic Technician.

17. Whether the events that Plaintiff claims constitute the exercise of free speech were made

as a citizen upon matters of public concern.

18. Whether the matters complained of in Plaintiff’s six grievances that constitute the

exercise of free speech were made as a citizen upon matters of public concern.



19. Whether the matters complained of in Plaintiff’s EEOC Charges of Discrimination that

constitute the exercise of free speech were made as a citizen upon matters of public

concern.

20. Whether Plaintiff being questioned about the topic of his planned speech to the Dallas

City Council is an adverse employment action.

21. Whether Plaintiff being instructed not to discuss the matters being investigated by Human

Resources with co-workers and other employees is an adverse employment action.

22. Whether Plaintiff spoke with members of the television and news media regarding his

employment at the City of Dallas.

23. Whether the City’s interest in promoting efficiency of public services outweighed

Plaintiff’s alleged interest in speaking on matters of public concern.

24. Whether Plaintiff’s Texas Whistleblower Act, Tex. Gov’t Code Ann. §§ 554.001 et seq.,

cause of action is barred by the statute of limitations.

25. Whether Plaintiff filed suit pursuant to the Texas Whistleblower Act, Tex. Gov’t Code

Ann. §§ 554.001 et seq., within 90 days of receiving his notice of layoff.

26. Whether Plaintiff initiated a grievance regarding the notice of layoff that he received.

27. If Plaintiff establishes that he initiated a grievance regarding the notice of layoff, whether

and for how long the statute of limitations on the Texas Whistleblower retaliation claim

was tolled.

28. If the Texas Whistleblower retaliation claim’s statute of limitations was tolled, for how

long was it tolled and if even if it was tolled, whether the claim is still barred by the

statute of limitations.



29. Whether Plaintiff made a good faith report of a violation of the law to an appropriate law

enforcement authority.

30. Whether the Plaintiff has proven that he was laid off in retaliation for making a good faith

report of a violation of the law to an appropriate law enforcement authority.

31. If Plaintiff has proven that he was laid off in retaliation for making a good faith report of

a violation of the law to an appropriate law enforcement authority, whether Plaintiff has

proven that but for having made the report, he would not have been laid off.

32. If Plaintiff proves that he was laid off in retaliation for making a good faith report of a

violation of the law to an appropriate law enforcement authority, whether the City have

taken the same action in the absence of the impermissible factor.

33. If Plaintiff prevails at trial on any of his causes of action, whether and if so, in what

amount should he recover for compensatory damages and lost wages in the past.

34. If Plaintiff proves an entitlement to attorney’s fees, whether and if so, in what amount

Plaintiff should be awarded reasonable and necessary attorney’s fees.

35. If Defendant is the prevailing party at the conclusion of the trial, whether and if so, in

what amount, Defendant should be awarded its costs and reasonable and necessary

attorney’s fees.

IV.

Contested Issues of Law

If any contested issue of fact should be treated as a contested issue of law, the parties request that the Court treat it as such; and if any contested issue of law should be treated as a contested issue of fact, the parties request that the Court treat it as such. Plaintiff

1. Whether Plaintiff is entitled to punitive damages under the Texas Whistleblower Act.



2. Whether Plaintiff exhausted administrative remedies.

3. Whether Plaintiff filed this lawsuit within the applicable statute of limitation for each

cause of action being litigated.

Defendant

1. Whether Plaintiff engaged in protected activity prior to March 30, 2009.

2. Whether Plaintiff had an objectively good faith belief that what he complained about

prior to March 30, 2009, constituted a violation of the law.

3. Whether Plaintiff engaged in protected activity in order to support a Title VII retaliation

claim.

4. Whether the alleged acts of retaliation are materially adverse as a matter of law.

5. Whether having the duties of processing job tickets and customer requests being placed

on a six-month rotation among the Senior Electronic Technicians is an adverse personnel

action.

6. Whether requiring Plaintiff to share responsibility for the environmental integrity of the

workplace is an adverse personnel action.


to rotate the duties of processing job tickets and customer requests among the Senior

Electronic Technicians, whether the City of Dallas has proven by a preponderance of the

evidence that it would have taken the same action in the absence of the impermissible

factor.


to require Plaintiff to share responsibility for the environmental integrity of the



workplace, whether the City of Dallas has proven by a preponderance of the evidence

that it would have taken the same action in the absence of the impermissible factor.


to include Plaintiff in the reduction-in-force, whether the City of Dallas has proven by a

preponderance of the evidence that it would have taken the same action in the absence of

the impermissible factor.

10. Whether Plaintiff has satisfied his burden of establishing a prima facie case of unlawful

retaliation under Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e, as amended.

11. If Plaintiff has satisfied his burden of establishing a prima facie case of retaliation,

whether Defendant has articulated legitimate, non-retaliatory business reasons for the

alleged materially adverse acts.

12. Whether Plaintiff has satisfied his burden of establishing that the alleged materially

adverse acts are a pretext for unlawful retaliation, being that the alleged adverse acts

would not have occurred but for Plaintiff having engaged in protected activity.

13. Whether Plaintiff exhausted administrative remedies for all claims made in the lawsuit.

14. Whether Plaintiff made timely and adequate disclosures.

15. Whether Title VII of the Civil Rights Act, 42 U.S.C. 2000e, 42 U.S.C. 1981a allows the

recovery of punitive damages against the City of Dallas.

16. Whether Plaintiff is entitled to pursue entitlement to compensatory damages because of

his refusal to answer deposition questions regarding compensatory damages.

17. If Plaintiff attempts to prove retaliation by the use of comparator employee information,

whether Plaintiff has shown that the comparator information is based upon employees

who are similarly situated to the Plaintiff under nearly identical circumstances.



18. Whether a private cause of action exists for a Plaintiff to sue for a violation of free speech

under Article I of the Texas Constitution.

19. Whether Plaintiff’s report of alleged theft by Michael Driggars constitutes

constitutionally protected speech.

20. Whether the matters complained of by Plaintiff in his six grievances were pursuant to

Plaintiff’s official job duties as a Senior Electronic Technician.

21. Whether all matters complained of by Plaintiff were pursuant to Plaintiff’s official job

duties as a Senior Electronic Technician.

22. Whether the events that Plaintiff claims constitute the exercise of free speech were made

as a citizen upon matters of public concern.

23. Whether the matters complained of in Plaintiff’s six grievances that constitute the

exercise of free speech were made as a citizen upon matters of public concern.

24. Whether the matters complained of in Plaintiff’s EEOC Charges of Discrimination that

constitute the exercise of free speech were made as a citizen upon matters of public

concern.

25. Whether Plaintiff being questioned about the topic of his planned speech to the Dallas

City Council is an adverse employment action.

26. Whether Plaintiff being instructed not to discuss the matters being investigated by Human

Resources with co-workers and other employees is an adverse employment action.

27. Whether Plaintiff spoke with members of the television and news media regarding his

employment at the City of Dallas.

28. Whether the City’s interest in promoting efficiency of public services outweighed

Plaintiff’s alleged interest in speaking on matters of public concern.



29. Whether Plaintiff’s Texas Whistleblower Act, Tex. Gov’t Code Ann. §§ 554.001 et seq.,

cause of action is barred by the statute of limitations.

30. Whether Plaintiff filed suit pursuant to the Texas Whistleblower Act, Tex. Gov’t Code

Ann. §§ 554.001 et seq., within 90 days of receiving his notice of layoff.

31. Whether Plaintiff initiated a grievance regarding the notice of layoff that he received.

32. If Plaintiff establishes that he initiated a grievance regarding the notice of layoff, whether

and for how long the statute of limitations on the Texas Whistleblower retaliation claim

was tolled.

33. If the Texas Whistleblower retaliation claim statute of limitations was tolled, for how

long was it tolled and if even if it was tolled, whether the claim is still barred by the

statute of limitations.

34. Whether Plaintiff made a good faith report of a violation of the law to an appropriate law

enforcement authority.

35. Whether the Plaintiff has proven that he was laid off in retaliation for making a good faith

report of a violation of the law to an appropriate law enforcement authority.

36. If Plaintiff has proven that he was laid off in retaliation for making a good faith report of

a violation of the law to an appropriate law enforcement authority, whether Plaintiff has

proven that but for having made the report, he would not have been laid off.

37. If Plaintiff proves that he was laid off in retaliation for making a good faith report of a

violation of the law to an appropriate law enforcement authority, whether the City would

have taken the same action in the absence of the impermissible factor.

38. Whether and if so, to what extent may Plaintiff offer evidence at the time of trial

regarding claims that have been dismissed by the Court.



39. Whether and if so, to what extent may Plaintiff offer evidence at the time of trial

regarding claims of wrongful conduct by the City made by employees and former

employees other than the Plaintiff.

40. If Plaintiff proves an entitlement to compensatory damages, whether and if so, in what

amount his damages should be limited by the applicable limits and exclusions of damages

outlined in 42 U.S.C. §1981a.

41. If Plaintiff proves an entitlement to damages pursuant to the Texas Whistleblower Act,

Tex. Gov’t Code Ann. §§ 554.001 et seq., whether and if so, in what amount his damages

should be limited by the applicable limits and exclusions of damages outlined in

§554.003.

42. If Plaintiff proves an entitlement to attorney’s fees, whether and if so, in what amount

Plaintiff should be awarded for reasonable and necessary attorney’s fees.

43. If Defendant is the prevailing party at the conclusion of the trial, whether and if so, in

what amount, Defendant should be awarded its costs and reasonable and necessary

attorney’s fees.

44. If Plaintiff prevails at trial on any of his causes of action, whether and if so, in what

amount should he recover for pre and post-judgment interest.

V.

Estimate of the Length of Trial

The parties estimate five days for trial following jury selection.

VI.

Statement that the Case is Jury or Non-Jury

The Plaintiff has properly demanded a jury trial.



VII.

A List of Any Additional Matters that Might Aid in the Disposition of this Case

Defendant City of Dallas has pending for ruling with the Court its Objections to the

Magistrate’s Recommendations regarding Plaintiff’s whistleblower retaliation claim brought

pursuant to the Texas Whistleblower Act, Tex. Gov’t Code, Section 554.001, et seq.

So Ordered.

Signed this 19th day of October, 2012.


OConnor

Signature Block

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Trial Summary