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Davila v. Flores12/2/1999
733 S.W.2d 224, 227 (Tex. App.--Waco 1986, writ ref'd n.r.e.). In other words, an act is discretionary if it requires exercising judgment and the law does not mandate performing the act with such precision that nothing is left to discretion or judgment. State v. Rodriguez, 985 S.W.2d 83, 85 (Tex. 1999). Specifically, an officer or employee's report of misconduct to his or her superior would generally be a discretionary act. See Boozier v. Hambrick, 846 S.W.2d 593, 597 (Tex. App.--Houston [1st Dist.] 1993, no writ).
In the present case, Flores contends that a fact question exists as to whether Davila and Steen's actions in connection with his termination were discretionary or ministerial. He points to some unspecified Commission "procedures" for the investigation and termination of an employee as an indication that the process was ministerial and did not involve any discretion on the part of a supervisor investigating the allegations.
However, simply because the law prescribes certain mandatory procedures that must be followed in the course of an investigation does not mean that an official's entire course of conduct during that investigation is a ministerial duty. See Koerselman v. Rhynard, 875 S.W.2d 347, 351-52 (Tex. App.--Corpus Christi 1994, no writ).
The present claims for defamation and intentional infliction of emotional distress concern the specific actions of Davila and Steen in disseminating information during the process of their investigation and termination decision. While there may be a standard procedure for conducting an investigation into employee wrongdoing, there was no indication that this procedure controlled the supervisors' discretion in the process of internally documenting and divulging information about the allegations. Accordingly, we conclude that their alleged dissemination of information was a discretionary matter involving deliberation, decision, and judgment.
Good Faith
The employee's good faith is measured against a standard of objective legal reasonableness, without regard to his or her subjective state of mind. Wadewitz, 951 S.W.2d at 466; City of Lancaster, 883 S.W.2d at 656. In other words, an employee acts in good faith if a reasonably prudent employee under the same or similar circumstances could have believed that the need to take the complained-of action outweighed the associated risk of harm. Wadewitz, 951 S.W.2d at 466; City of Lancaster, 883 S.W.2d at 656.
By their affidavits in the present case, Davila and Steen conclusively proved that they did not disseminate the information in bad faith and that their actions in disseminating the information in the course of the investigation were objectively reasonable. In other words, their affidavits show that a reasonably prudent employee under the same or similar circumstances could have taken the same action in the course of the investigation.
Once the pub
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