In Office of the Attorney General v. Rodriguez, a supervisor reported possible insurance fraud to her supervisor at the Office of the Attorney General of Texas. Laura Rodriguez believed she had a duty to report fraud, waste or abuse. She reported possible fraud concerning her her long-time friend and administrative assistant, Debbie Galindo. Ms. Rodriguez reported the apparent fraud in January, 2009 to her supervisor. The employer investigated and found her suspicions to be correct, that the co-worker had tried to commit insurance fraud in listing a non-relative on her insurance plan. The supervisor, Charles Smith, later started an investigation of Ms. Roidriguez based on an old complaint about her and based on a newer complaint.

As part of the investigation into Ms. Rodriguez, her complaint about Ms. Galindo came up. The investigators reported to Mr. Smith that Ms. Rodriguez had shown bad judgment as a supervisor. They claimed she had become “irrational” when they asked her about renting a home to Ms. Galindo’s family. In actuality, Ms. Rodriguez did break down and cry when asked about the rental and told that rental to Galindo was not appropriate. Later, Ms. Rodriguez wanted to discipline one of her subordinates. Mr. Smith thought the manner of the discipline was improper and again showed poor judgment on the part of Ms. Rodriguez. In September, 2009, Mr. Smith drafted his first termination memo regarding Ms. Rodriguez. Jo Kirk, an attorney in the HR section at OAG advised Smith to make it a demotion, based on similar discipline of another supervisor at the OAG.

So, when Ms. Galindo was placed on suspension for her insurance fraud, Ms. Rodriguez was herself demoted later that same day in September, 2009. The next day, Mr. Smith issued a written warning to Ms. Rodriguez for the complaint about her by a subordinate, and for her renting a house to Ms. Galindo’s family members. When she was demoted, Ms. Rodriguez had to perform evaluations for all her former employees. Due to that requirement, she fell behind quickly in her new job.

In her evaluation in December, 2009, Mr. Smith gave her high marks, but in the area of ethics, she was rated very low for an alleged business relationship with one of her employees. Mr. Smith said that her business relationship “cast doubt” on her initial complaint about possible insurance fraud.

Ms. Rodriguez then submitted a claim of retaliation, saying that Mr, Smith had included false statements on her evaluation. A few months later, her new supervisor terminated Ms. Rodriguez. Ms. Rodriguez filed suit regarding her termination. The jury found the whistle blower complaint was part of her termination and award her $260,000 in lost pay, compensatory (emotional suffering) damages of $100,000, and lost future pay in the amount of $275,000.

On appeal, the OAG argued the evidence did not support the finding that her whistle blowing was part of her termination and that the evidence did not support the award of lost future pay, or “front pay.” The El Paso Court of Appeals did not agree wit the Office of the Attorney General. The court found that management conduct during the whole process supported the finding. Her supervisor thought it “odd” that Ms. Rodriguez took her concerns to a higher level, instead of disciplining the subordinate herself. The court noted that the employer wanted her to violate its own policy in requiring her to confront Ms. Galindo directly. Ms. Rodriguez wanted to keep her complaint anonymous, as OAG policy allowed. In pressing her to confront Ms. Galindo, the OAG was violating its own policy. Violating an employer’s own policy does help show illicit motive.

Too, the court of appeals found that a comparable employee was indeed comparable because they were accused of similar infractions, even if they had different supervisors. So, it was relevant that the comparable employee was not disciplined as severely as Ms. Rodriguez. Ms. Rodriguez’ replacement as Office Manager suffered from the same degree of backlogs as she did. Yet, her replacement was not fired or disciplined. And, noted the court, the fact that Mr. Smith included false statements in his evaluation of Mr. Rodriguez helps show illicit intent on his part.

Regarding lost future pay, or “front pay,” the court found that Ms. Rodriguez accepted a lower paying job that was not comparable to her last job as Office Manage – only after a fruitless search that lasted 18 months. If the employer believes Ms. Rodriguez could have found a job sooner than 18 months, it has the burden to show that. But, the OAG offered no such evidence.

See the decision here.