Texas has a whistleblower statute. It applies only to government workers. In a recent whistleblower decision, the Fourth Court of Appeals here in San Antonio reversed a grant of summary judgment. In the case of Torres v. City of San Antonio, No. 04-15-00664 (Tex.App. San Antonio 12/7/2016), Lt. Torres worked for the City Fire Department. In 2009, he was assigned to the Arson Division, where he would spend time at the San Antonio Police Department building. As an arson investigator, he had credentials to access a secure area at SAPD. He noticed two former arson investigators using credentials to get into the same secure area. They should have turned in their investigator credentials when they left the Arson Division. So, Lt. Torres mentioned this to his Captain. A few days later, he submitted a report to the Deputy Fire Chief. Believing no action was being taken, a few days later, he submitted a complaint to the City wide Office of Municipal Integrity. OMI investigated and found the two former Arson investigators were indeed retaining their former credentials. Fire Department Chief Hood was aware they were retaining their credentials, but the Chief did not realize that retention violated statute. Changes were made in procedures to keep this from happening again. Lt. Torres left the Arson Division a few months later.

In 2012, Lt. Torres applied to return to the Arson Division. He was turned down in favor of someone less experienced and without the necessary certifications. The persons making the selection included Chief Hood and Torres’ former supervisor, Capt. Casals. Both Hood and Casals said they overlooked Lt. Torres for the position in part because of his prior complaint to OMI. That evidence amounts to a clear violation for he Texas Whistleblower law. Under the statute, a claimant must show: 1) he was a public servant, 2) he made a good faith report of a violation of law by his employer governmental agency, 3) he made the report to an appropriate law enforcement agency, and 4) he suffered retaliation at work for making the report. Yet, the lower court granted summary judgment.

The City presented evidence that Torres made the report not out of good faith belief, but to shield himself from consequences of unilaterally causing the credentials to be cancelled for the two prior former Arson Investigators. Lt. Torres responded with evidence showing that other officers would have made the complaint, and that he only went to OMI after he saw no action was being taken by the Fire Department. The court of appeals found there was genuine issue of material fact regarding whether his report was in good faith. The employer also argued that the plaintiff did not show his being turned down for the position was related to his report to OMI.

The City showed several reasons why Lt. Torres was not selected, other than his prior whistleblower complaint. But, said the Fourth Court, the plaintiff is not required to show his reporting the credentials issue was the sole reason for being passed over. Instead, the employee need only show that but for the report, he would not have been turned down. That is, the employee need only show the report played some role, however small in the action taken against him. The issue should be resolved by a jury, said the court. See the decision here.

 

 

Texas has limited whistleblower protection. Texas Government Code Sec. 554 protects public employees who report violations of law to the appropriate law enforcement agency.  See statute. The Texas Whistleblower Act provides for a 90 days deadline in which to file suit. It also requires an employee to first file a grievance if the state or local agency provides for a grievance procedure. If the employee files a grievance, then the duration of the grievance will toll the statute of limitations (ie, toll the deadline).

The good faith report of the violation of law would need to be made to the appropriate law enforcement agency. Note that provision means simply reporting to a supervisor at work will not suffice.

There is no equivalent statute for private employees. There is no whistleblower type protection for private sector employees. But, as I wrote earlier,  a private employee would be protected if s/he were required to violate a criminal statute. See my prior post.

So, if you are a private employee, if you report your employer for violating some criminal law and get fired, then you have no protection.  If you are a state or local government employee and are fired because you reported your employer for violating some law, then you may have the right to file a lawsuit. See a qualified Texas lawyer to discuss any such lawsuit.

Federal employees enjoy substantial protections other employees do not. One such protection is the whislteblower statute, also known as reporting fraud, waste or abuse. See Workplace Fairness summary. This statute protects a federal employee who reports fraud, waste or abuse or a simple violation of a statute or regulation. There are a number of ways to report a violation of this statute. A federal employee can submit a complaint to the Merit Systems Protection Board or to the Office of Special Counsel

Of course, one should never depend on a lawsuit or a complaint to pay the bills. It is always better to avoid problems, if possible. But, sometimes, problems find you. 

In a recent opinion, the Texas Supreme Court clarified one key aspect of whistle blower complaints.  The Texas Whistleblower statute applies to government employees only.  See Tex. Govt.C. Sec. 554.001, et seq.  The statute protects an employee who reports a possible violation of law.  The report or question must be to an "appropriate law enforcement authority."  Tex. Govt. C. Sec. 554.002.  Some court decisions have allowed reports to the employer in certain situations, such as if the employer has an office that is responsible for internal enforcement of the law in question.

But, now, according to the Texas Supreme Court, "appropriate law enforcement authority" means the entity that actually "promulgates regulations" or "enforces" the law in question or "pursues criminal violations."  In Texas A&M Kingsville v. Moreno, the employee reported a violation of the law regarding tuition waivers to the President of the University, and to the Texas Higher Education Coordinating Board.  Her supervisor, Dr. Saban, was claiming a tuition waiver for his daughter, to which he was not entitled.  Dr. Saban became angry, and accused Ms. Moreno of butting into his personal business.  But, the school required the supervisor to pay back the school the amount of the discounted tuition.  TAMU-K essentially agreed with Ms. Moreno. 

Twenty-one days later, Dr. Saban personally terminated Ms. Moreno.  She filed suit.  The employer moved for summary judgment, which was granted.  On appeal, the summary judgment was reversed.  TAMU-K appealed. 

The president has the authority to enforce the law within the university, noted the Supreme Court. The Supreme Court addressed her report to the HECB in a footnote.  In that footnote, the Court found that Ms. Moreno did not report a violation of law.  She merely asked questions about whether what Dr. Saban was doing satisfied the requirements of the tuition waiver law.  According to the Supreme Court, she did not mention the name of Dr. Saban or otherwise indicate her supervisor was violating the law. Yet, in her brief, the employee said the opposite, that she reported Dr. Saban’s apparent improper use of tuition waiver to an official with the HECB. 

In resolving a motion for summary judgment, the court is supposed to accept the employee’s version of the facts.  The Texas Supreme Court seems to have ignored that fundamental principle.   See decision here.  The Court appears to agree that the HECB would constitute the appropriate law enforcement authority for purposes of tuition waivers.  

But, disregarding the non-movant’s version of the facts is a significant error.  The employee has evidence that Dr. Saban prevaricated.  Dr. Saban claimed that the A&M Chancellor, Mike McKinney, told him to terminate Ms. Moreno.  But, Mr. McKinney denied telling him to do so and said he would not do that.  Ignoring the non-movant’s version of facts when the employee impeaches the key witness for the employer is an egregious error by the Court.  Indeed, to obtain the tuition waver, Dr. Saban completed a form in which he falsely claimed to be teaching more than part-time.  He had to know this representation was false when he made it. 

On several levels, the Supreme Court committed error in this decision.  Worse, these are the sort of errors that should have been apparent to the Court.  The Court issued this decision without oral argument,  a step usually reserved for cases in which the answer seems apparent.  This is not such a case.  The facts and the legal issues are complicated.  The Court devoted less attention to this suit than it deserved.  

Many laypersons people are familiar with the retaliation part of Title VII of the Civil Rights Act of 1964.  That anti-retaliation provision prohibits retaliation against someone who opposes discrimination.  Title VII is a federal statute.  Texas is an at-will state.  But, even so, Texas does have a few state anti-retaliation statutes.  

Texas prohibits reprisal against an employee who reports abuse or neglect of a resident at a nursing home.  Texas Health & Safety Code Sec. 242.133.  Such a lawsuit must be filed within 90 days of the alleged reprisal.  

An employee is protected against being ordered to commit an illegal act.  This claim is known as a Sabine Pilot claim, after Sabine Pilot v. Hauck, 687 SW 2d 733( Tex. 1985).   The refusal to commit an illegal act must be the sole cause of the termination.  I previously discussed an important case regarding the Sabine Pilot action here.  

An employee is also protected because he/she served on a jury.  Texas Civil Practice & Remedies Code Sec. 122.001.  An employee who believes he/she has suffered retaliation due to jury service has two years in which to bring such a claim.  The damages are limited, but still, this statute does offer some protection.  

Also, state or local government employees are protected if they report violations of law by their employer.  See Texas Government Code Sec. 554. The good faith report of the violation of law would need to be made to an appropriate law enforcement agency. This statute is known as the Texas Whistle Blower Statute.  It is only available to government employees. 

While this list is not completely exhaustive, these are the few protections we Texas employees have which actually have some teeth.  

 

Whistleblowers have a rough row to hoe.  George Green knows this better than anyone.  A former architect for the Texas Dept. of Health and Human Services, he blew the whistle on shoddy building practices at DHHS some 25 years ago.  DHHS fired him in 1989 for alleged sick leave issues.   In 1991, the jury awarded him $13.7 million in total damages.  But, because that amount was so high, he had to lobby the state leglslature to pass a bill appropriating that amount.  Under state law, a state official cannot sign a check over a certain dollar amount.  It was four years before the state legislature awarded this amount. He lobbied himself and hired others to help him lobby the state government.  He received his check sometime in the early 90’s.  

The jury awarded some $10 million in punitive damages.  Apparently, Plaintiff Green reached an agreement with former Lt.-Gov. Bob Bullock that the state would not pay punitive damages.  The whole concept of "punitive damages" is hard for defendants to accept.  That agreement apparently caused him tax trouble with the IRS.  See San Antonio Express News report.  Punitive damages are, I am told, taxable income to the person receiving them.  So, I presume Mr. Green did not pay all of his taxes.  After all his trouble with the IRS and paying lawyers, Mr. Green emerged with only $300,000.  

Mr. Green appealed the tax issues to the Fifth Circuit Court of Appeals in New Orleans and lost.  The court found that Mr. Green’s damages were punitive damages, regardless of the agreement he reached with Bob Bullock.  Mr. Green had tried to argue that the damages were actual damages based on his health issues. I have to say that does sound like risky strategy.  Courts and the IRS would surely look at the actual jury award and jury charge to determine what the jury awarded.  Any subsequent agreement would appear to be designed to avoid tax liability. 

He also lost a lawsuit filed by a consultant.  That cost him $600,000.  He says he had some 200 attorneys, accountants and consultants working for him at various times.  Now, he lives on his father’s monthly retirement check, trying to start a business growing grapes and tending bees. 

But, it sounds like he would still today, after all these troubles, still have blown the whistle….

The employee of an Illinois law firm was fired when he refused to cooperate in issuing fraudulent bills to clients.  The law firm claimed the hours performed by an in-hpuse employee were actually performed by an outside investigator.  The firm then billed at the higher rates used by outside investigators.  One of the in-house investigators, however, refused to cooperate in altering his invoice to reflect the higher rates.  He was then fired.  See Workplace Prof report.  

An Illinois appellate court ruled that the firing did not violate any public policy in that state.  Sad to say, but the same result would probably obtain in Texas.  There is no law in Texas protecting an employee from reprisal for simply being honest.  There is no law protecting a private sector employee from reprisal for even reporting violations of law by their employer.  In Texas, this lawsuit would not be a whistle blower lawsuit since the employee did not report violations of law to a law enforcement agency. 

The law firm, Karlin & Fleisher, will surely suffer from bad publicity.  But, how many more Karlin and Fleishers are there out there who do not get sued?  

A former SAWS employee was awarded $275,000 in state district court here in Bexar County.  See San Antonio Express News report. Kevin Martin claimed he was fired because he reported that employees were improperly exposed to asbestos pipes. The Texas Commission on Environmental Quality investigated and found violations. Sounds like a whistle blower lawsuit. 

As always, the employer claimed they fired the employee for other reasons. SAWS plans to appeal. San Antonio water System also lost a jury decision a few years ago in another large employment verdict.  That jury verdict was overturned on appeal. 

In a clever move, Bexar Metropolitan Water District has offered Gilbert Herrera, a whistleblower, his old job back.  See San Antonio Express News report.  Bexar Met has also deposited the amount of Mr. Herrera’s lost pay into the registry of the court.  Yet, the lawsuit will proceed. 

See my prior post about Mr. Herrera and his whistleblower claims.  I said then that his lawsuit looked like a strong lawsuit. 

The news paper report does not identify the specific legal manueverings.  But, in offering the whistle blower his job back, Bexar Met is attempting to cut off his lost pay.  The employee’s lawyer, Alex Katzman, says that the offer will subject Mr. Herrera to working for the same boss who fired him.  If so, then the offer may be found to be insincere.  If the offer is not genuine, then back pay will not stop.  So, you can see the chess game being played out.  One side can stop lost pay if they make a genuine offer of reinstatement.  The other side then counters that working for the manager who fired him is not a genuine offer. 

Its all about the chess game…..

 The employer does lose, sometimes.  I wrote about the nurses who complained about a doctor.  See prior post.  The nurses were charged with felonies, which charges were eventually dropped.  They then filed a whistleblower lawsuit and eventually settled.  Their lawsuit became nationally known.  Well, now the doctor they complained about has now suffered his own repercussions.  He has been placed on probation for four years by the Texas Medical Board.  The TMB oversees doctors.  See Austin American Statesman report.  

Dr. Rolando Arafiles can continue to practice medecine if he obtains additional training.  The board essentially substantiated the two nurses’ complaints regarding improper treatment of patients.  The Board also found that he tried to intimidate the two nurses.  

Dr. Arafiles was also indicted in January on charges of misuse of official information.  The charges allege that Dr. Arafiles asked the County Sheriff to investigate the two nurses after they complained anonymously to the TMB in 2009.  Both nurses were fired from the hospital where they had been employed for years. 

The nurses secured a settlement in their whistleblower lawsuit.  Now, they have the rare vindication of a ruling by a state agency.