I used to get referrals from the San Antonio Bar Association. These referrals included many clients who had never spoken to a lawyer anywhere. Many of them would call complaining basically about unfair treatment. I still get calls like that, sometimes. They might say, “my employer fired me because they say I did not call in, but I did call in sick.” I have to explain to such potential clients that in Texas, an employer can fire you for the wrong reason or even for a stupid reason.

We have what is known as “at-will” employment. An employer can fire you for any reason (other than various types of discrimination). Just as the employee can quit for any reason. So, yes, even when the employer is wrong, even when you did call in sick and the employer just flat messed up and did not record your call, they can still fire you. I wish that was not true. I wish our state laws were different, that they required some sort of “just cause” for termination. But, most states do not require just cause for a termination. Only some 10 states require a good reason for a termination. In the rest of the states, such as Texas, an employer can fire you for the wrong reason.

So, now Coach Art Briles has sued Baylor University for “wrongful termination.” See San Antonio Express News report. The saga of the Baylor University football team reached its apex a few weeks ago when the Pepper Hamilton law firm report was released. The report implicated Baylor University officials, including Coach Briles, in the half dozen or so rapes and sexual assaults committed by football players. As sports scandals go, its a “big un.” It ranks up there with the SMU scandals of the 1980’s.

So, it might seem nervy for Coach Briles to file suit. “Wrongful termination” in itself is not a cause of action recognized in Texas law. But, we can assume that a coach like Mr. Briles, reportedly paid $6 million per year, had a clause in his contract that he could be fired for only good reason or “just cause.” If so, then sure, he could sue for breach of contract. The breach would be in regard to the just cause provision.

So, what would be “wrongful” about his termination? The coach has only spoken once about the firing. He said that he had not seen the evidence used to fire him. He has not seen the Pepper Hamilton law firm report. But, that does not mean the evidence does not exist. Coach Briles and Baylor have already been sued by two alleged rape victims. Those lawsuits alone would be enough to justify most terminations of employees with a “just cause” provision. I find it had to believe Coach Briles truly believes the evidence justifying his termination does not exist. More likely, he is simply trying to get the some sort of settlement with Baylor. It is not an attractive aspect of litigation. But, he is likely betting the school would prefer to settle with him than see dirty laundry posted in court. That is what we call a frivolous lawsuit. It is filed not because it has merit, but because the simple act of filing gives the party some bargaining leverage.

Coach Mike L:each filed suit a few years ago when he was fired. He also argued wrongful termination, among other theories. I wrote about that lawsuit here. But ultimately, his lawsuit lost because state agencies are immune from lawsuits. Baylor does not enjoy similar immunity from suit.

The newspaper report describes Coach Briles’ lawsuit as typical of his “bare knuckled” approach to building a successful football program. It may be bare knuckled. But, it does not acknowledge responsibility for serious lapses on his watch. It also reflects no sense of honor regarding what was essentially his football program.

I get calls now and then from folks who are the subject of a discrimination investigation.  The best thing you can do is cooperate with the investigation.  You are still an employee and could be terminated for failing to cooperate with an investigation.  Do not expect fairness or even high quality.  There is no duty on the part of a Texas employer to conduct a "fair" investigation.  In Texas Farm Bureau Insurance Co. v. Sears, 84 S.W.23d 604 (Tex. 2002), the Texas Supreme Court refused to recognize a claim for negligent investigation of an employee’s misconduct.  A claim for negligent investigation would damage the at-will relationship, said the court. 

Indeed, the employer does not necessarily need to conduct a "quality" investigation.  In a "he said/ she said" scenario, the employer can believe anyone it chooses.  The only exception would be for someone who is a member of a union or who has an employment agreement which assures some degree of "just cause" for termination.  But these situations apply to few workers in Texas.   

An employer is required to conduct a "reasonable" investigation into allegations of harassment in regard to discrimination.  Bu, the reasonable requirement is based on its effects in stopping or curbing harassment that might violate Title VII.  The reasonable requirement is focused on the victim of the alleged harassment, not the alleged perpetrator. 

I have spoken with a few managers who were unjustly accused of discriminatory conduct.  Unfortunately, there is little remedy for such persons.  Defamation is at least a possible lawsuit.  But, defamation has an extra high burden in the workplace.  So, yes, if you want fairness at work, form a union…..

An employer can modify the at-will relationship.  An employer can agree to terminate an employee only for "just cause."  Many employers agree to do so so for key employees.  But, how does an employer modify the at-will status of an employee?  in Crystal City v. Palacios, 2012 WL 1431354 (Tex.App. San Antonio 201012) (not for pubication), the employer made "just cause" one of its policies.  The just cause policy appeared to apply to all employees.  The policy provided that an employee would only be fired for just cause.  The San Antonio Court of Appeals, found that language was not binding on the employer.  The policy was too general, said the court.  The court relied on another decision, Montgomery County Hosp. Dist. v. Brown, 965 S.W.2d 501, 502 (Tex. 1998).  But, the Brown decision was different.  In Brown, the Texas Supreme Court found that an oral promise to terminate for just cause could not modify the at-will doctrine.  In the Palacios decision, the policy is in writing. 

Indeed, the Palacios decision conflicts directly with County of Dallas v. Wiland, 216 S.W.3d 344 (Tex. 2007), where the Texas Supreme Court found that a written policy of Just cause would modify the at-will status of an employee. 

The San Antonio Court of Appeals designated its decision as not for publication.  That designation is supposed to mean the court believes the decision only applies to this one specific fact situation and should not apply to other situations.  The decision will not appear in the official reporter of court decisions.  But, in these days of ready access to Westlaw, not appearing in Southwestern Reporter does not mean much.  See the Palacios decision here

 An employment relationship that went bad.  It happens all the time from Burger King to any corporate boardroom.  When it happens in Lubbock, Texas to a major college coach, it becomes big news.  Mike Leach filed his Third Amended Petition in state court alleging breach of contract, wrongful termination,  among other things.  He has added new facts suggesting "outside forces" conspired to get him evicted.  But, as with any employment relationship, prior issues also serve as background evidence.  He had a difficult negotiation of his contract just last year.  

It is safe to assume Coach Leach had a "just cause" termination clause in his contract.  Otherwise, none of these new facts would be relevant.  If he did indeed abuse a player, then "just cause" means he could be fired without having to pay the remainder of his contract.  

"Just cause" means he could only be fired for a just or good reason.  Just cause is the opposite of "at-will."   Not all, but very many individual employment agreements contain some form of a just cause termination clause.  What is a just cause will be up to a jury.  Texas juries can be very conservative.  Coach Leach would have to show that Texas Tech did something more than reasonably rely on complaints from a concerned parent.  

 I used to get referrals from the San Antonio Bar Association.  These referrals included many clients who had never spoken to a lawyer anywhere.  Many of them would call complaining basically about unfair treatment.  I still get calls like that, sometimes.  They might say, "my employer fired me because they claim I did not call in, but I did call in."  I have to explain to potential clients like this that in Texas, an employer can fire you for the wrong reason or even for a stupid reason.  I have talked about this before. 

We have what is known as "at-will" employment.  An employer can fire you for any reason (other than various types of discrimination).  Just as the employee can quit for any reason.  So, yes, even when the employer is wrong, even when you did call in sick and the employer just flat messed up and did not record your call, they can still fire you.  I wish that was not true.  I wish our state laws were different, that they required some sort of "just cause" for termination.  But, most states do not require just cause for a termination.  Only some 10 states require a good reason for a termination.  In the rest of the states, such as Texas, an employer can fire you for the wrong reason.