WHISTLEBLOWER ACT CASES FROM TEXAS COURTS OF APPEALS

Also see: Recent Decisions of the Texas Supreme Court in Whistleblower Cases | Public Employment Cases
City of Waco, Texas v. Lopez, No. 06-0089 (Tex. July 11, 2008)(Opinion by Justice Wainwright)
(Whistleblower Act vs.TCHRA, anti-discrimination statute as exclusive remedy for retaliation claim at issue,
failure to satisfy prerequisites for suit by not filing with agency first)
Montgomery County, Tex. v. Park, 51 Tex. Sup. Ct. J. 160, 2007 WL 4216605 (Tex. Nov. 30, 2007)

Univ. of Houston v. Barth (Tex.App. - Houston [1st Dist.] July 3, 2008) (jury award in tenured professor's
Whistleblower suit reversed; case remanded to the trial court)
REVERSE TC JUDGMENT AND REMAND CASE TO TC FOR FURTHER PROCEEDINGS: Opinion by Justice
Higley  
Before Justices Nuchia, Alcala and Higley
01-06-00490-CV The University of Houston v. Stephen Barth
Appeal from 113th District Court of Harris County
Trial Court Judge: Hon. Patricia Hancock  
Dissenting Opinion by Justice Alcala in University of Houston v. Barth (Tex.App. - Houston, 2008)   
Prior appellate opinion in this case:
Univ. of Houston v. Barth, ___ S.W.3d. ___ 2005 WL 1539634
(Tex.App.- Houston [1st Dist.] June 30, 2005)

Duran v. Fort Worth I.S.D., No. 2-06-024-CV (Tex.App.- Fort Worth, Feb. 21, 2008, pet. denied)
(Whistleblower Act claim, no adverse personnel action)
The Texas Whistleblower Act provides that "[a] state or local governmental entity may not suspend or terminate
the employment of, or take other adverse personnel action against, a public employee who in good faith
reports a violation of law by the employing governmental entity or another public employee to an appropriate
law enforcement authority."[6]  One of FWISD's grounds for traditional summary judgment was that Duran's
reassignment was a purely lateral transfer and not an "adverse personnel action" as a matter of law.   We
agree. "Personnel action" is defined in the Act as "an action that affects a public employee's compensation,
promotion, demotion, transfer, work assignment, or performance evaluation."  Although the Act does not define
"adverse," the Texas Supreme Court recently held that "a personnel action is adverse within the meaning of the
Whistleblower Act if it would be likely to dissuade a reasonable, similarly situated worker from making a report
under the Act.
Montgomery County, Tex. v. Park, 51 Tex. Sup. Ct. J. 160, 2007 WL 4216605, at *2-3 (Tex. Nov.
30, 2007) (adopting with appropriate modifications the standard set out in Burlington N. & Santa Fe Ry. Co. v.
White, 548 U.S. 53, 126 S. Ct. 2405, 2415 (2006)).

Phelan v. Texas Tech Univ.,  No. 07-07-0171-CV (Tex. App. - Amarillo, Jan. 23, 2008) (Opinion by
Pirtle)(nonrevewal of nontenured faculty member,
Texas Whistleblower Act claim, due process, no protected
interest in light of at-will employment, liberty interests in professional reputation, alt. to
common law defamation
claim
)

Whistleblower Cause of Action

The Texas Whistleblower Act prohibits a state or local government from taking adverse personnel action
against a public employee who in good faith reports a violation of law by the employing governmental entity or
another public employee to an appropriate law enforcement authority. Tex. Gov't Code Ann. § 554.002(a)
(Vernon 2004). The cause of action created by the Act is purely statutory creating a right unknown at common
law. Scott v. Godwin, 147 S.W.3d 609, 621 (Tex.App.-Corpus Christi 2004, no pet.); City of San Antonio v.
Heim, 932 S.W.2d 287, 290 (Tex.App.-Austin 1996, writ denied). The statute was enacted to protect public
employees who report illegal activity and enhance openness in government while compelling compliance with
the law. Castaneda v. Texas Dep't of Agriculture, 831 S.W.2d 501, 503 (Tex.App.- Corpus Christi 1992, writ
denied). Because the statute is remedial in nature, it is to be liberally construed. Roberts v. Titus County
Memorial Hosp., 159 S.W.3d 764, 769 (Tex.App.-Texarkana 2005, pet. denied), cert. denied, 564 U.S. 1095,
126 S.Ct. 1070, 163 L.Ed.2d 862 (2006). And, whether a violation of law has been reported to an appropriate
law enforcement authority is a question of law to be decided by the court. City of Fort Worth v. DeOreo, 114
S.W.3d 664, 668 (Tex.App.-Fort Worth 2003, no pet.).

To establish a claim for retaliation under the Act, the claimant must prove the following elements: (1) he is a
public employee; (2) he acted in good faith in making a report; (3) the report involved a violation of law; (4) the
report was made to an appropriate law enforcement authority; and (5) he suffered retaliation as a result of
making the report. County of Bexar v. Steward, 139 S.W.3d 354, 357-58 (Tex.App.-San Antonio 2004, no pet.).

The Act defines a "law" as a state or federal statute, ordinance of a local governmental entity, or rule adopted
under a statute or ordinance. Tex. Gov't Code Ann. § 554.001(1) (Vernon 2004). (2) An "appropriate law
enforcement authority" is a governmental entity that the employee in good faith believes is authorized to
"regulate under or enforce the law alleged to be violated in the report" or "investigate or prosecute a violation
of criminal law." Tex. Gov't Code Ann. § 554.002(b) (Vernon 2004).

To establish a "good faith" reporting, the complainant must show that his belief was reasonable in light of the
employee's training and experience. Texas Dep't of Transportation v. Needham, 82 S.W.3d 314, 321 (Tex.
2002). See Duvall, 82 S.W.3d at 480-81.

For purposes of this appeal, Texas Tech does not contend that Phelan was not a public employee who
suffered an adverse personnel action. Texas Tech's defense rests upon its contention that (1) Phelan did not
report a violation of the law as contemplated by the Whistleblower's Act, (2) the reports Phelan did make were
not to an appropriate law enforcement agency, and (3) there is no causal connection between Phelan's report
and Texas Tech's decision to non-reappoint him.Point of Error One

By his first point of error, Phelan contends the trial court erred in granting Texas Tech's motion for summary
judgment because an adverse governmental personnel action taken after an employee files an assault charge
against a supervisor is covered by the Texas Whistleblower's Act. In response, Texas Tech contends that an
assault is not a violation of the law as contemplated by the Act and that there is no causal relationship between
Phelan's report and Texas Tech's decision to non-reappoint him.

Phelan contends a triable issue of fact exists regarding whether there is a causal link between his filing the
assault charge with the Texas Tech Police and his non-reappointment. In support, Phelan asserts he did not
receive notice that he resign or be terminated at the May 9 meeting because Norville alone did not have
authority to terminate him, and he did not seriously believe Norville. Phelan also asserts Kiesling's deposition
testimony affirmatively establishes that the decision to terminate him had not been made prior to the May 14
meeting between Phelan and Kiesling. Phelan contends the decision to terminate him was reached at the May
20 meeting between Norville, Eibeck, Kiesling, Hall, Marcy, and Mellinger after they received Phelan's assault
complaint from the Texas Tech Police.

Although the Act does not explicitly require an employee prove a causal link between the reported violation of
law and the subsequent discrimination, the Texas Supreme Court has held that the employee must
demonstrate causation by a preponderance of the evidence. City of Fort Worth v. Zimlich, 29 S.W.3d 62, 67
(Tex. 2000), citing Texas Dep't of Human Services v. Hinds, 904 S.W.2d 629, 633 (Tex. 1995). Requiring the
employee to prove causation is necessary otherwise "the statute would give public employees life tenure for
reporting activity believed in good faith to be unlawful." Id. Although the employee need not prove the protected
activity was the sole cause of the employer's prohibited conduct, the employee must establish a "but for" causal
nexus between the protected activity and the employer's prohibited conduct. Vela, 186 S.W.3d at 54. To show
causation, a public employee must demonstrate that after he or she reported a violation of law in good faith to
an appropriate law enforcement authority, the employee suffered discriminatory conduct by his or her employer
that would not have occurred when it did if the employee had not reported the illegal conduct. City of Fort
Worth, 29 S.W.3d at 67 (emphasis added).

Phelan contends that notice of an adverse personnel action is not notice unless the person giving the notice
has ultimate authority to implement the adverse personnel action. It is undisputed that, on May 9, 2005, Phelan
attended a meeting where Norville, his supervisor, informed him that he had one of two options-either resign or
be terminated. Whether Norville had sole authority to terminate Phelan's employment is immaterial. It is
sufficient that Phelan received notice from his immediate superior, Norville, that he would be terminated.
Moreover, a subjective belief on Phelan's part that Norville could not or would not fire him is not competent
summary judgment evidence. See Peavy v. Dallas Independent School District, 57 F.Supp.2d 382, 386 n.3
(N.D. Tex. 1999).

Phelan next contends the date he received notice should not be controlling. Rather, he asserts the date he
received formal notification of the adverse personnel action should be used to determine whether a causal
nexus exists between his filing the criminal complaint and his non-reappointment. Phelan cites no legal authority
in support of this proposition. We agree with Bexar that the proper focus is on the time the employee learns of
the allegedly discriminatory decision, not on the time when the consequences of that decision come to fruition.
County of Bexar, 139 S.W.3d at 357-58. This ruling comports with prior rulings related to accrual of a cause of
action for employment discrimination. Luna v. Frito-Lay, Inc., 726 S.W.2d 624, 628 (Tex.App.-Amarillo 1987, no
writ) (court agrees with the federal rule that accrual of an action for termination of employment occurs when the
employee is informed that this employment will be terminated, not when it actually is terminated). See The
University of Texas-Pan American v. De Los Santos, 997 S.W.2d 817, 820 (Tex.App.-Corpus Christi 1999, no
pet.) (statute of limitations begins to run when University informed employee of its intent to terminate her
employment).

Neither is Kiesling's deposition testimony sufficient to raise a genuine issue of fact as to causation. Kiesling
testified as follows:

MR. CARNEY: The other question I have for you is: When you went to Dean Eibeck to ask her if it was okay to
go to talk to Scott Phelan after the e-mail about suing everybody came out, did she mention to you anything
about we are not going to reappoint Scott?

KIESLING: Oh, no.

MR. CARNEY: Or we're going to fire him or anything like that?

KIESLING: No. No, I don't think any such considerations - Certainly we did not discuss it and I don't believe that
was in her thinking or mind or anybody at that point.

Kiesling's testimony merely establishes that he and Eibeck did not discuss Phelan's non-reappointment prior to
his meeting with Phelan. As such, Kiesling's testimony at best represents less than a scintilla of evidence in
Phelan's favor. Further, Kiesling's testimony regarding what Eibeck and others were, or were not, thinking is
inadmissible speculation and will not be considered. (3)

Phelan points to no other evidence to substantiate his assertion that the decision to non-reappoint him was not
made until the May 20 meeting. On the other hand, Provost and Senior Vice President for Academic Affairs
Marcy affirmatively states in his affidavit the decision to non-reappoint Phelan was made prior to the May 20
meeting, and the purpose of the meeting was to discuss proper procedures for Phelan's non-reappointment.
Ten days after his luncheon meeting with Norville and at least six months after the alleged assault occurred,
Phelan filed a complaint with the Texas Tech Police. Thus, because Phelan received notice of the adverse
personnel action prior to his filing the assault charge, Phelan fails to establish a Whistleblower claim because
causation is lacking as a matter of law. See County of Bexar, 139 S.W.3d at 358.

Accordingly, we hold Phelan is not entitled to protection under the Whistleblower Act for the reported assault
because he has failed as a matter of law to prove a causal link between the filing of his criminal complaint and
his non-reappointment. Our decision pretermits consideration of whether an assault of the person is a "violation
of law" as contemplated by the Act. Tex. R. App. P. 47.1. Point of error one is overruled.

Looper v. HCCS (Tex.App.- Houston [14th Dist.] Nov. 29, 2007)(Hedges)
(
public employment disputes, breach of contract, defamation, IIED, WBA)
Appellants, Stan H. Looper and Cynthia M. Scott, appeal the trial court's grant of summary judgment on claims
of breach of contract, defamation, intentional infliction of emotional distress, negligent hiring, and violations of
the Texas Whistleblower Act in favor of appellees, Houston Community College System ("HCCS"), Bruce Leslie,
Diana Castillo, and Reynaldo Garay.  We affirm.

City of Houston v. Levingston (Tex.App- Houston [1st Dist.] Jul. 27, 2006)(Jennings)(Whistleblower Act)
AFFIRM TC JUDGMENT: Opinion by Justice Jennings
Before Justices Taft, Jennings and Bland
01-03-00678-CV City of Houston v. Sam Levingston, DVM
Appeal from 125th District Court of Harris County (
Judge John Coselli)