RETALIATORY FIRINGS - TexasBarCLE · She has significant trial experience at both the state and federal levels, jury and non-jury. ... Retaliatory Firings Chapter 2 i TABLE OF CONTENTS

RETALIATORY FIRINGS

TERI L. DANISH, Brownsville Rodriguez, Colvin, Chaney & Saenz LLP

State Bar of Texas 14TH ANNUAL ADVANCED EMPLOYMENT LAW COURSE

February 2-3, 2006 Austin

CHAPTER 2

TERI L. DANISH

Ms. Danish is a 1990 graduate of the University of San Diego School of Law, and

obtained her B.B.A. in Marketing from Texas A&M University in 1984. She is a partner in the

law firm of Rodriguez, Colvin, Chaney & Saenz, L.L.P. in Brownsville, Texas. Prior to that

time, Ms. Danish was Associate Director, Human Resources for Cooper Industries, Inc. in

Houston, Texas, and a participating associate with the Houston law firm of Fulbright &

Jaworski, L.L.P. in its labor and employment law section. She is Board Certified in Labor &

Employment Law by the Texas Board of Legal Specialization. She is a member of the State Bar

of Texas, the American Bar Association, the Cameron and Hidalgo County Bar Associations,

and the Texas Association of Defense Counsel, and is licensed to practice before the United

States District Courts for the Southern, Western and Eastern Divisions of Texas, the Fifth Circuit

Court of Appeals and the United States Supreme Court.

Ms. Danish's practice involves counseling and defending employers in all areas of labor

and employment law. She has significant trial experience at both the state and federal levels,

jury and non-jury. She has also conducted several collective bargaining negotiations and labor

arbitrations, and has defended employers before various administrative agencies, including the

Equal Employment Opportunity Commission, the Texas Commission on Human Rights, the

Occupational Safety and Health Administration, and the National Labor Relations Board.

Retaliatory Firings Chapter 2

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TABLE OF CONTENTS

I. INTRODUCTION....................................................................................................................................... 1

II. FIRST AMENDMENT CLAIMS................................................................................................................. 1 A. Background ......................................................................................................................................... 1 B. Elements of Claim................................................................................................................................ 2

1. Adverse Employment Action ......................................................................................................... 2 2. Public Concern.............................................................................................................................. 3

a. Content.................................................................................................................................. 3 b. Form..................................................................................................................................... 3 c. Context.................................................................................................................................. 4

3. Balancing of Interests .................................................................................................................... 4 4. Causation...................................................................................................................................... 4

III. FEDERAL EMPLOYMENT LAWS ............................................................................................................ 5 A. Methods of Proof ................................................................................................................................. 5 B. Protected Conduct................................................................................................................................ 6 C. Adverse Employment Action ................................................................................................................ 6 D. Causal Connection................................................................................................................................ 8

1. Final Decisionmakers .................................................................................................................... 8 2. Timing.......................................................................................................................................... 9

E. Pretext................................................................................................................................................. 9 1. Direct Evidence............................................................................................................................. 9 2. Circumstantial Evidence ................................................................................................................ 9

F. Damages.............................................................................................................................................10

IV. TEXAS STATE LAWS..............................................................................................................................10 A. Texas Whistleblower Act.....................................................................................................................10

1. Good Faith ...................................................................................................................................11 2. Violation of Law..........................................................................................................................11 3. Appropriate Law Enforcement Authority .......................................................................................12 4. Adverse Employment Decision .....................................................................................................13 5. Causation.....................................................................................................................................13

B. Texas Commission on Human Rights Act.............................................................................................14 C. Texas Labor Code §451 .......................................................................................................................15

1. Elements of Claim........................................................................................................................15 2. Damages......................................................................................................................................16

D. Common Law Exception .....................................................................................................................16

V. CONCLUSION..........................................................................................................................................16


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RETALIATORY FIRINGS I. INTRODUCTION1 With continuing recent media reports and coverage of corporate and governmental wrongdoing, more attention has been placed on the whistleblowing and free speech protections afforded to employees. This paper will address recent cases of First Amendment and whistleblower retaliation in Texas, with a particular emphasis on termination decisions. A brief overview of recent federal and state decisions concerning other retaliation claims in employment will also be presented. Recent decisions will be the primary focus, with discussion of older decisions when necessary to provide sufficient background information. Given that virtually every state or federal employment statute contains an anti-retaliation provision, an in-depth discussion of each specific statute is beyond the scope of this paper.2 Instead, significant highlights in various areas will be presented. Retaliation claims continue to be a significant source of employment litigation. For the second time in a five-year period, the total number of charges filed with the Equal Employment Opportunity Commission (“EEOC”) has declined. However, the number of retaliation charges increased in 2004. Retaliation claims have also increased as a percentage of all charges filed. In 2004, retaliation charges accounted for 28.6% of all charges filed with the EEOC, up from 27.9% in 2003. The vast majority of retaliation charges continue to be asserted under Title VII of the Civil Rights Act. In addition, retaliation cases are a considerable source of punitive damage awards to plaintiffs. The very nature of a retaliation claim lends itself to an award of damages to “punish” employers for conduct designed to retaliate against employees. In essence, juries (and reviewing courts) often have difficulty in distinguishing between conduct that supports a retaliation claim and retaliatory conduct that is not sufficiently “malicious” to support a punitive damage award. II. FIRST AMENDMENT CLAIMS The First Amendment to the United States Constitution affords public employees with protection against retaliation for exercising the rights to free expression. Through a long line of cases, the United States Supreme Court has attempted to strike the 1 The author wishes to thank Derek N. Mueller, an associate with Rodriguez, Colvin, Chaney & Saenz, L.L.P., for his assistance in the preparation of this paper. 2 For example, both the National Labor Relations Act and the Sarbanes-Oxley Act contain significant anti-retaliation provisions that will be discussed in other articles.

appropriate balance between the employee’s exercise of his or her First Amendment protections, and the government’s ability to efficiently fill its role as an employer. A. Background In Pickering v. Board of Education, 391 U.S. 563, 568 (1968), the Court noted that “a public employee does not relinquish First Amendment rights to comment on matters of public interest by virtue of government employment.” Accordingly, the Court has reaffirmed that “speech concerning public affairs is more than self-expression; it is the essence of self-government,” Garrison v. Louisiana, 379 U.S. 64, 74-75 (1964), and “occupies the ‘highest rung of the hierarchy of First Amendment values,’” NAACP v. Claiborne Hardware Co., 458 U.S. 913 (1982). Thus, the issue is a question of “balance between the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.” Pickering, 391 U.S. at 568. Subsequent to Pickering, the Supreme Court clarified the “balancing test” to be used by lower courts in determining whether a public employee’s speech qualifies for First Amendment protection. In Connick v. Myers, 461 U.S. 138, 146 (1983), the Court held that an employee’s speech is entitled to First Amendment protection only when the employee is speaking on a matter of public concern. In so holding, the Court stated

when employee expression cannot be fairly considered as relating to any matter of political, social or other concern to the community, government officials should enjoy wide latitude in managing their offices, without intrusive oversight by the judiciary in the name of the First Amendment.

Id. The content, form and context of an employee’s speech, “as revealed by the whole record,” must be analyzed to determine whether the speech is constitutionally protected. Connick, 461 U.S. at 147. Each First Amendment analysis is necessarily fact-intensive; thus, the Supreme Court found that is it not “either appropriate or feasible to lay down a general standard against which all such statements may be judged.” Connick, 461 U.S. at 154. Against this backdrop, courts have struggled to determine exactly when an employee can establish that he or she was retaliated against for exercising First Amendment rights.

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B. Elements of Claim The Fifth Circuit has adopted a four-pronged test to determine whether an employee has stated a cognizable First Amendment retaliation claim. To prevail, a plaintiff must show:

1. an adverse employment action; 2. the speech involved a matter of public

concern; 3. the employee’s interest in comment on

matters of public concern outweighed the government employer’s interest in promoting efficiency; and

4. the speech motivated the adverse action by the employer.

Markos v. City of Atlanta, Texas, 364 F.3d 567, 570 (5th Cir. 2004); Harris v. Victoria Ind. School Dist., 168 F.3d 216, 220 (5th Cir.), cert. denied 528 U.S. 1022 (1999).3 As stated in Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274, 282-83 (1977), the government can prevail by showing that it would have reached the same decision absent the protected conduct. Accord, Board of County Commissioners, Wabanunsee County, Kansas v. Umbehr, 518 U.S. 668 (1996); Beattie, 254 F.3d at 603. 1. Adverse Employment Action As with other areas of employment law, the Fifth Circuit’s view of conduct that constitutes an adverse employment action is narrow. For purposes of First Amendment retaliation claims, adverse employment actions are “discharges, demotions, refusals to hire, refusals to promote, and reprimands.” Pierce v. Texas Dep’t of Criminal Justice, Institutional Div., 37 F.3d 1146, 1149 (5th Cir. 1994). A plaintiff’s subjective perception that a demotion has occurred is insufficient to constitute an adverse employment action. Breaux v. City of Garland, 205 F.3d 150, 157 (5th Cir. 2000). Transfers amount to adverse employment actions only if they are suffic iently punitive, Pierce, 37 F.3d at 1150, or if the new position is “markedly less prestigious and less interesting than the old one.” Breaux, 205 F.3d at 157 (citing Click v. Copeland, 970 F.2d 106, 110 (5th Cir. 1992)). The Fifth Circuit has

3 The First Amendment also protects against retaliation with respect to freedom of association. However, those claims are analyzed under the same Pickering balancing test used to determine the success of freedom of speech claims. Breaux v. City of Garland, 205 F.3d 150, 157 (5th Cir. 2000). The only difference between requirements for a speech claim and an association claim “is that the latter is not subject to the threshold public concern requirement.” Id.; see also Boddie v. City of Columbus, Mississippi, 989 F.2d 745, 747 (5th Cir. 1993).

upheld its strict definition of adverse employment action, “even though [it has] the effect of chilling the exercise of free speech.” Breaux, 205 F.3d at 157 (citing Benningfield v. City of Houston, 157 F.3d 369, 376 (5th Cir. 1998)). The court’s stated reason for not expanding the list of adverse employment actions is to ensure that the claims do “not enmesh federal courts in ‘relatively trivial matters.’” Dorsett v. Board of Trustees, 940 F.2d 121, 123 (5th Cir. 1991). In light of this narrow rule, the Court has held that the following are not adverse employment actions in the First Amendment context:

• A previously published reprimand that was later rescinded, even though the rescission was not published, Breaux, 205 F.3d at 158;

• Mere accusations or criticisms, Harrington v. Harris, 118 F.3d 359, 365 (5th Cir. 1997);

• Investigations, Pierce, 37 F.3d at 1150; • Psychological testing, Benningfield, 157 F.3d

at 376; • False accusations, Colson v. Grohman, 174

F.3d 498, 511 (5th Cir. 1999); • Polygraph examinations that do not have

adverse results for the plaintiff, Pierce, 37 F.3d at 1150; and

• Stigma, without an impact on the plaintiff’s employment. Blackburn v. City of Marshall, 42 F.3d 925 (5th Cir. 1995).

The Breaux court also clarified its ruling concerning threats of discharge. In Click, 970, F.2d at 109, and Harrington, 118 F.3d at 366, the court indicated that threat of discharge may be an adverse employment action because “even the threat of discharge can be a potent means of chilling the exercise of constitutional rights.” However, in Breaux, the court held that threat of discharge alone does not suffice for a First Amendment retaliation claim. The court explained that

[a]s the law stands now, retaliatory threats are just hot air unless the public employer is willing to endure a lawsuit over a termination. Pickering’s (and by extension, Click ’s) reference to threats of termination illustrated the problem if threats could be realized; the Court did not hold or imply that threats of termination alone, in a post-Pickering world in which retaliatory discharge is outlawed, would generate liability.

Breaux, 205 F.3d at 160. Even though the above-referenced actions do not constitute adverse employment decisions under Fifth

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Circuit law, several individuals actions in the aggregate may meet the First Amendment standards for a retaliation claim. To be actionable, “the campaign of retaliatory harassment [must] rise to such a level as to constitute a constructive adverse employment action.” Breaux, 205 F.3d at 160, citing Colson, 174 F.3d at 514. Thus, for example, where the defendant has waged a “vengeful vendetta” against the plaintiff by accusing him of committing burglary, alleging plaintiff assaulted a co-worker, causing plaintiff to be more severely disciplined than others, and ultimately firing plaintiff, in the aggregate these actions could support a finding that an adverse action occurred. Thompson v. City of Starkville, 901 F.2d 456 (5th Cir. 1990). Likewise, a plaintiff was held to be constructively demoted where the defendants created an ‘intolerable situation’ which caused the plaintiff to transfer to a less desirable position. Colson, 174 F.3d at 514; Sharp v. City of Houston, 164 F.3d 923, 934 (5th Cir. 1999). Constructive discharge will also support a First Amendment claim. Benningfield, 174 F.3d at 513. 2. Public Concern Assuming an adverse employment action occurred, a plaintiff must also demonstrate that his or her speech involved a matter of public concern. Whether the speech at issue relates to a matter of public concern is a question of law for the court. Markos, 364 F.3d at 570. The inquiry is generally whether the employee was speaking as a citizen upon matters of public concern, or an employee upon matters only of personal interest. Id; Harris, 168 F.3d at 221; Connick, 461 U.S. at 147.

Simply because an employee’s speech may also have an element of personal interest does not prevent a finding that the speech as a whole raises issues of public concern; “but an employee cannot transform a personal conflict into an issue of public concern simply by arguing that individual concerns might have been of interest to the public under different circumstances.” Markos, 364 F.3d at 570; Bradshaw v. Pittsburg Independent School District, 207 F.2d 814, 816 (5th Cir. 2000). In fact, the Fifth Circuit has expressly declined to adopt an employee’s motivation as “the new litmus test for the matter of public concern analysis.” Markos, 364 F.3d at 572. For example, the fact that a plaintiff may have been motivated to engage in First Amendment activity out of a concern for job security does not mean that the activity does not relate to a matter of public concern. See Brady v. Fort Bend County, 145 F.3d 691, 707 (5th Cir. 1998); Kinsey v. Salado Independent School District, 950 F.2d 988 (5th Cir. 1992). Instead, in such “mixed-motive” cases, courts apply the Connick content, form and context factors in making this determination.

a. Content The Fifth Circuit has long held that “[t]here is perhaps no subset of ‘matters of public concern’ more important than bringing official misconduct to light.’” Branton v. City of Dallas, 272 F.3d 730, 740 (5th Cir. 2001); Davis v. Ector County, 40 F.3d 777, 782 (5th Cir. 1995). Thus, complaints of police misconduct constitute a matter of public concern. Thompson, 901 F.2d at 463; Brawner v. City of Richardson, 855 F.2d 187, 191-92 (5th Cir. 1988). Likewise, campaigning for a political candidate relates to matters of public concern. Brady v. Fort Bend County, 145 F.3d 691, 707 (5th Cir. 1998); Vojvodich v. Lopez, 48 F.3d 879, 885 (5th Cir. 1995). Other examples of speech relating to public concern include:

• Special treatment of private security guards, Thomas v. Harris, 784 F.2d 648 (5th Cir. 1986), cert. denied 507 U.S. 917 (1993);

• Testimony in county commissioner’s court in favor of a co-employee’s EEOC claim, Johnston v. Harris County Flood Control Dist., 869 F.2d 1565 (5th Cir. 1989);

• Complaints about illegalities in city budgeting process, Patrick v. Miller, 953 F.2d 1240 (10th Cir. 1992);

• Expenditure of public funds by a city, City of Houston v. Leach, 819 S.W.2d 185, 198 (Tex.App. – Houston [14th Dist.] 1991, no writ);

• Complaint by an employee that certain actions might violate federal regulations, Gonzalez v. Benavides, 774 F.2d 1295 (5th Cir. 1985); Upton County v. Brown, 960 S.W.2d 808, 826 (Tex.App. – El Paso 1997, no writ).

In contrast, statements made to exonerate one’s own professional reputation address a matter of personal concern. Bradshaw, 207 F.3d at 817. Speech made on behalf of a co-worker in an intra-office meeting also constitutes personal speech. Markos, 364 F.3d at 571; Fiesel v. Cherry, 294 F.3d 664, 668 (5th Cir. 2002). b. Form In analyzing the form of speech, publication of the speech is a factor to be weighed. Markos, 364 F.3d at 571; Thompson, 901 F.2d at 466. Thus, comments published in the newspaper are more likely to weigh in favor of a finding of public speech. Markos, 364 F.3d at 571. Speech contained in purely private documents, such as a personal notebook, will not support a finding that the speech is public, even if the speech is subsequently made public. For example, in Terrell v. Univ. of Texas System Police, 792 F.2d 1360 (5th Cir.


















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1986), the plaintiff’s boss received an anonymous letter accompanied by copies of pages from plaintiff’s personal notepad which were critical of the boss’ job performance. The plaintiff was terminated, and claimed that he was fired for exercising his First Amendment rights. However, because he made no effort to communicate the contents of the notebook to the public, the court found that the speech could not support a First Amendment claim. Similarly, the court in Bradshaw found that internal grievances that were not publicly announced could not support a First Amendment claim. 207 F.3d at 815. c. Context A court must also analyze the context in which the speech occurred. The Fifth Circuit has recognized that “public employees, by virtue of their public employment, may make valuable contributions to public debate.” Markos, 364 F.3d at 572; Branton v. City of Dallas, 272 F.3d 730, 740 (5th Cir. 2000). One factor to be considered in analyzing the context of speech “is whether the comments were made against a backdrop of widespread debate in the community.” Markos, 364 F.3d at 572; Harris, 168 F.3d at 222. Also, the fact that the speaker was approached by outside sources, like a journalist, rather than vice versa weighs in favor of finding protected speech. See Markos, 364 F.3d at 572; Rode Dellarciprete, 845 F.2d 1195, 1202 (3d Cir. 1988); Matulin v. Village of Lodi, 862 F.2d 609, 613 (6th Cir. 1988). 3. Balancing of Interests The Fifth Circuit has interpreted that the third prong of the Pickering and Connick balancing test requires

a comprehensive but flexible analysis – a balance which weighs the particular aspects of the government’s interest in effective service and the plaintiff’s interest in freedom of speech that arise in each fact situation.

Brady, 145 F.3d at 707 (citing McBee v. Jim Hogg County, 730 F.2d 1009, 1016 (5th Cir. 1984)). Although the Connick and Pickering Courts declined to adopt a bright line rule when balancing these interests, allegations of corruption are matters of public concern and always outweigh the government’s interest in efficiency as an employer. Breaux, 205 F.3d at 157, n.10 (citing Teague v. City of Flower Mound, 179 F.3d 377, 381 (5th Cir. 1999)).

The “nonexclusive” list of factors to be weighed in this analysis include:

• The degree to which the employee’s activity involved a matter of public concern;

• The time, place and manner of the employee’s activity;

• Whether close working relationships are essential to fulfilling the employee’s public responsibilities and the potential effect of the employee’s activity on those relationships;

• Whether the employee’s activity may be characterized as hostile, abusive or insubordinate;

• Whether the activity impairs discipline by superiors or harmony among coworkers.

Brady, 145 F.3d at 707; see also Click, 970 F.2d at 112; Matherne v. Wilson, 851 F.2d 752, 760 (5th Cir. 1988)). Thus, the balance tipped in favor of the employee as citizen when plaintiffs engaged in support of a political candidate adverse to their supervisor while off-duty, and who made positive statements about the candidate as opposed to negative statements about their supervisor. Brady, 145 F.3d at 709.

In cases where the public employee occupies a policymaking or confidential position, “the government’s interests more easily outweigh the employee’s (as a private citizen).” Brady; 145 F.3d at 708; Kinsey, 950 F.2d at 994. However, the “ultimate inquiry is not whether the label ‘policymaker’ or ‘confidential’ fits a particular position; rather the question is whether the hiring authority can demonstrate that party affiliation is an appropriate requirement for effective performance of the public office involved.” Branti v, Finkel, 445 U.S. 507, 58 (1980). Thus, the burden is on the government employer to establish that employees fall within the “exceptional class of public servants” whose First Amendment rights may abrogated. See Garcia v. Reeves County, 32 F.3d 200, 205 (5th Cir. 1994).

4. Causation Finally, a plaintiff claiming First Amendment retaliation must also prove that his or her speech motivated the government employer’s action. See e.g. City of Canton v. Harris, 489 U.S. 378, 385 (1989)(requiring a “direct causal link between a municipal policy or custom and the alleged constitutional deprivation.”); Polk County of Dodson, 454 U.S. 312, 361 (1981); Beattie v. Madison County School District, 254 F.3d 595, 502 (5th Cir. 2001). Both Texas and the Fifth Circuit have adopted the “motivating factor” requirement to support a First Amendment retaliation claim: the employee must show that “but for” the retaliatory motive, the adverse employment action would not have occurred. Brown, 960 S.W.2d at 827; Aguilar v. Chastain, 923 S.W.2d 740, 744 (Tex.App. – Tyler 1996, no writ)(citing Mt. Healthy, 428 U.S. at 286-87). Absent evidence that the decisionmaker knew of the protected speech or


















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activity, a plaintiff cannot show that the activity motivated the retaliatory behavior. Beattie, 254 F.,3d at 604; Cabrol v. Town of Youngsville, 106 F.3d 101 (5th Cir. 1997). However, if the employee can demonstrate that the a final policymaker’s decision is merely a “rubber stamp” of a subordinate’s determination which was tainted by illegal intent, the government employer can be held to have knowledge of the retaliatory behavior. Rios v. Rossotti, 252 F.3d 375, 381-82 (5th Cir. 2001). As in retaliation cases involving other statutes, the Fifth Circuit has held that while the timing between the protected activity and the adverse action is a factor to be considered in First Amendment retaliation claims, “timing alone does not create an inference that the termination is retaliatory.” Beattie, 254 F.3d at 502 (citing Seaman v. CSPH, Inc., 179 F.3d 297, 301 (5th Cir. 1999)). Texas courts, however, appear to find that a close temporal proximity may be sufficient to establish the required causal connection for a First Amendment retaliation claim. See Brown, 960 S.W.2d at 827, and cases cited. The Supreme Court has also adopted a “mixed motive” analysis for claims arising under the First Amendment. Even assuming an employee establishes that his or her termination is in retaliation for First Amendment activities, the government employer can escape liability if it can establish that the employee would have been terminated for other reasons. Mt. Healthy, 429 U.S. at 287; see also Texas v. Lesage, 528 U.S. 18, 21 (1999); Beattie, 254 F.3d at 605. This is true even if the protected First Amendment activity played a “substantial part” in the termination decision: “the termination is not unconstitutional if the employee would have been terminated anyway.” Gerhart v. Hayes, 217 F.3d 320, 321 (5th Cir. 2000). Even termination “because of” protected speech may be justified when “legitimate countervailing government interests are sufficient strong.” See Brown, 960 S.W.2d at 824-25 (Tex.App. – El Paso, 1997, reh’g overruled)(citing Umbehr, 518 U.S. at 673). III. FEDERAL EMPLOYM ENT LAWS An employer may not retaliate against an employee for engaging in conduct that is prohibited by the various civil rights employment laws. Whether asserted under Title VII, the Age Discrimination in Employment Act (“ADEA”) or other employment statutes, the elements of a retaliation claim are generally the same.4 To be successful, an employee must generally establish that 1) he or she engaged in

4 The Fifth Circuit has recently determined that the Government Employee Rights Act also provides a claim for retaliation with the same evidentiary framework as Title VII. Brazoria County, Texas v. Equal Employment Opportunity Commission, 391 F.3d 685 (5th Cir. 2004).

activity protected by the statute; 2) that the employer took an adverse employment action against him or her; and 3) a causal connection exists between the protected activity and the adverse employment action. Gee v. Principi, 289 F.3d 342, 345 (5th Cir. 2002)(Title VII); Davis v. Dallas Area Rapid Transit, 383 F.3d 309 (5th Cir. 2004)(retaliation under 42 U.S.C. §1981); Hernandez v. Crawford Building Material Co., 321 F.3d 528 (5th Cir. 2003)(ADEA); 42 U.S.C. §12203(a), (b) (Americans with Disabilities Act). Before recently, employers sometimes argued that retaliation claims could not be asserted by former employees who allege retaliatory conduct by their employers after either resignation or termination. The United States Supreme Court resolved this issue in Robinson v. Shell Oil Co., 519 U.S. 337 (1997), holding that former employees are included in the definition of “employees” in Title VII. As noted by the Court, exclusion of individuals who are no longer employed by an employer, but who are the subject of retaliation by that employer because of protected conduct, would be inconsistent with the purposes of Title VII to protect against unlawful discriminatory conduct. A. Methods of Proof Historically, employees have been generally unable to provide direct evidence of discrimination. As a result, the U.S. Supreme Court established the McDonnell Douglas shifting burden framework to allow plaintiffs to proceed with discrimination claims based on circumstantial evidence. In the rare case where direct evidence of discrimination is present, the U.S. Supreme Court adopted a “mixed-motive” analysis in its Price Waterhouse decision.

The Fifth Circuit has adopted the evidentiary schemes established by the Supreme Court for retaliation claims. In Fabela v. Socorro Independent School Dist., 329 F.3d 409, 415 (5th Cir. 2003), the Court noted:

Usually, in the context of a retaliation claim, the employer refrains from expressly stating that an impermissible criterion influenced his decision to expose the plaintiff to an adverse employment action, and so direct evidence of an employer’s allegedly retaliatory intent is rarely available. As a result, we have long recognized the well-trod path by which a plaintiff may demonstrate retaliatory intent through the use of circumstantial evidence and the famed McDonnell Douglas framework.

The Fabela Court went on to note that, “in the unusual circumstance” where a plaintiff has direct evidence of discriminatory animus, “the burden of proof shifts to






















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the employer to establish by a preponderance of the evidence that the same decision would have been made regardless of the forbidden factor.” Id. Direct evidence in the Fifth Circuit includes “any statement or document which shows on its face that an improper criterion served as a basis – not necessarily the sole basis, but a basis – for the adverse employment action.” Id. (quoting Fierros v. Dep’t of Health, 274 F.3d 187, 194 (5th Cir. 2001). The Fabela court reversed a district court’s summary judgment in favor of the employer, finding that the plaintiff had presented direct evidence of discrimination which the district court improperly evaluated the evidence for persuasiveness as compared to other evidence in the record. According to the Fabela court,

In deciding whether Fabela established the element of causation under the direct evidence path, the district court must refrain from weighing the evidence and preemptively determining whether and which inferences a reasonable jury is likely to draw. Instead, in deciding whether and which evidentiary framework applies, the district court must ask whether the direct evidence, truly standing alone, is sufficient to support the conclusion that a nexus exists between the protected activity and the adverse employment action.

Id. at 416. Direct evidence does not have to support the conclusion that retaliation was the only motive or even that it was the determinative motive, only that it was among the motivating factors which led to the adverse action. Id. at 416, n. 7. B. Protected Conduct In the more common case of circumstantial evidence applying the McDonnell Douglas framework, the employee carries an initial burden to establish a prima facie case of retaliation. First, the plaintiff must show that he or she engaged in conduct that is protected by the anti-retaliation provisions of the statute in question. The Fifth Circuit defines protected activity as “opposition to any practice rendered unlawful by Title VII, including making a charge, testifying, assisting or participating in any investigation, proceeding or hearing under Title VII.” Ackel v. Nat’l Communs., Inc., 339 F.2d 376, 385 (5th Cir. 2003). More simply, “Title VII prohibits an employer from retaliating against an employee because that employee has complained about acts of discrimination at work.” Manning v. Chevron Chem. Co., LLC, 332 F.3d 874 (5th Cir. 2003). An employee’s use of an employer’s internal administrative process to file an employment

discrimination complaint is “clearly protected activity” for purposes of a retaliation claim. Fierros v. Tex. Dep’t of Health, 274 F.3d 187, 194 (5th Cir. 2001). A plaintiff is not required to establish an actual violation of Title VII to invoke the protections of the anti-retaliation provisions. Rather, a plaintiff only need show that a charge was made, or that participation in investigation of a claim occurred. Green v. Administrators of Tulane Educational Fund, 284 F.3d 642, 657 (5th Cir. 2002). A plaintiff’s reasonable belief that she was in the process of being terminated because of her gender and made a complaint is sufficient for a retaliation claim. Id. However, the employee must have actually engaged in protected activity to support her prima facie case. In Ackel, the plaintiff informed a co-worker that she would file a complaint if her supervisor’s harassment did not stop. The co-worker, acting on her own rather than at the plaintiff’s direction, warned her employer that the plaintiff would file a complaint. The court held that because plaintiff herself did not engage in protected activity, she could not sustain a prima facie case. Ackel, 339 F.3d at 385. C. Adverse Employment Action The second element of a plaintiff’s prima facie case requires a showing that the plaintiff suffered an adverse employment action. In the Title VII context, the Fifth Circuit applies a much more restrictive definition of adverse employment action. In Mattern v. Eastman Kodak Company, 104 F.3d 702, 707 (5th Cir. 1997), the court determined that Title VII was “designed to address ultimate employment decisions, not to address every decision made by employers that arguably might have some tangential effect upon those ultimate decisions.” Thus, only those acts such as “hiring, granting leave, discharging, promoting and compensating” constitute adverse employment actions for purposes of a retaliation claim. Id. Only the Fifth Circuit and the Eighth Circuit apply the “ultimate employment decision” standard. Compare Mattern and Ledergerber v. Stangler, 122 F.3d 1142 (8th Cir. 1997), with Von Gunten v. Maryland, 243 F.3d 858 (4th Cir. 2001); Wideman v. Wal-Mart Stores, 141 F.3d 1453 (11th Cir. 1998); Knox v. Indiana, 93 F.3d 1327 (7th Cir. 1996); Berry v. Stevinson Chevrolet, 74 F.3d 980 (10th Cir. 1996); Wyatt v. City of Boston, 35 F.3d 13 (1st Cir. 1994); Yartzoff v. Thomas, 809 F.2d 1371 (9th Cir. 1987). Since Mattern, much of the continuing litigation in the realm of retaliation deals with the issue of whether conduct constitutes an adverse employment decision. An employment action that “does not affect job duties, compensation or benefits” is not an adverse employment action. Pegram v. Honewell, Inc., 361 F.3d 272, 282 (5th Cir. 2004). Banks v. East Baton Rouge Parish Sch. Bd., 320 F.3d 570, 575 (5th Cir.























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2003)(quoting Hunt v. Rapides Healthcare Sys., LLC, 277 F.3d 757, 769 (5th Cir. 2001)). Thus, denial of a pay raise constitutes an adverse employment action because it affects compensation. Fierros, 274 F.3d at 193; but see Mattern, 104 F.3d at 709 (missed pay increase that did not take effect before plaintiff’s resignation not an adverse employment action), and Kang v. Board of Supervisors of Louisiana State University, 2003 WL 22272920 (5th Cir 2003)(although plaintiff given less-than-average pay raise, later raise dispelled adverse employment decision). Likewise, denial of an annual stipend, denial of a request for paid leave, and denial of a request to extend unpaid leave all constitute adverse employment actions. Mota v. Univ. of Texas Houston Health Science, 261 F.3d 512, 521-23 (5th Cir. 2001). Even a temporary decrease in pay can serve as adverse employment decision. Wilson v. City of Dallas, Texas, 2003 WL 23017738 (N.D.Tex. 2003). A demotion also qualifies as an adverse employment action. Davis v. Dallas Area Rapid Transit, 383 F.3d 309, 319-320 (5th Cir. 2004); Sharp v. City of Houston, 164 F.3d 923, 933, n.21 (5th Cir. 1999). In contrast, an employer’s decision that merely limits an employee’s opportunities for promotion, or a purely lateral transfer does not satisfy the adverse employment action element. See Hamilton v. Tex. Dep’t of Transportation, 85 Fed. Appx. 8 (5th Cir. 2004); Banks, 320 F.3d at 575-576; Burger v. Cent. Apartment Mgmt., 168 F.3d 875, 878 (5th Cir. 1999). Nor is an employee’s subjective belief that he was demoted sufficient to support this element. Lyons v. Burlington Coat Factory Warehouse Corporation, 2004 WL 515585 (N.D.Tex. 2004)(quoting Hunt, 277 F.3d at 771). Hostility from fellow employees, without more, also fails to constitute an adverse employment action. Mattern, 104 F.3d at 707. Other conduct that fails to rise to the level of an adverse employment action includes:

• Denial of access to study materials and exam required for promotion – Davis v. Dallas Area Rapid Transit, 2003 WL 21501899 (N.D. Tex. 2003)

• Warnings, reprimands, threats to fire – Sinegar v. Jefferson Parish Sch. Bd., 2003 WL21977157 (E.D. La. 2003)

• Placement on paid leave and psychological testing – Breaux v. City of Garland, 205 F.3d 150 (5th Cir. 2000); Erves v. City of Dallas, 2004 WL 904122 (N.D. Tex. 2004).

• Employer’s filing of counterclaim against former employee in response to employee’s retaliation lawsuit -- Hernandez v. Crawford Building Material Company, 321 F.3d 528 (5th Cir. 2003).

• Reclassification of employee from “lead worker” to an “individual worker” -- Hamliton v. Texas Department of Transportation, 85 Fed. Appx. 8 (5th Cir. 2004)

Although the Fifth Circuit generally applies Title VII holdings to claims brought under §1981, the definition of adverse employment decision is broader under §1981. Under §1981, reprimands, disciplinary filings and transfers that are “equivalent to demotions” may be considered adverse employment actions. Banks, 320 F.3d at 580; Erves, 2004 WL 904122 at *5.5 There is also some question whether the Fifth Circuit’s “ultimate employment standard” will continue to be viable in light of the Supreme Court’s decisions in Burlington Industries v. Ellerth, 524 U.S. 742 (1998) and Faragher v. City of Boca Raton, 524 U.S. 775 (1998). In these Title VII sexual harassment cases, the Supreme Court defined a tangible employment action as a

significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a significant change in benefits. . . . A tangible employment action in most cases inflicts direct economic harm.

Burlington, 524 U.S. at 761-62. Some plaintiffs have argued that this language lowers the standard for what constitutes an adverse employment action for retaliation purposes. For example, the plaintiff in Zaffuto v. City of Hammond, 308 F.3d 485, 493 (5th Cir. 2002) argued that because he was suspended for 240 hours for an alleged work violation he suffered monetary loss which constituted an adverse employment action. The Court acknowledged the Faragher and Burlington definition, but side-stepped the issue of whether the 240 hour suspension was an adverse employment decision, deciding instead that plaintiff failed to establish a causal connection between his protected activity and the alleged retaliation. Id. Noting that the Fifth Circuit has expressly declined to decide whether the sexual harassment “tangible employment action” lowers the bar for determining whether conduct is an ultimate employment decision,6 the Zaffuto court avoided this question. More recently, the Fifth Circuit again declined to address the Faragher and Burlington decisions in the context of retaliation claims in Kang v. Board of 5 §1981 claims have the added advantage for employees in that there is no administrative requirement of a charge. Walker v. Thompson, 214 F.3d 615, 625 (5th Cir. 2000). 6 See Fierros, 274 F.3d at 193 n.3.

















8

Supervisors of Louisiana State University, 75 Fed. Appx. 974, 2003 WL 2222920 (5th Cir. 2003). In Kang, the plaintiff was a professor who claimed that he was given a less-than-average pay raise, causing him to be the lowest paid professor in his department. The Court first noted that denial of a pay raise can be an ultimate employment action, “despite our suggestion in Mattern to the contrary.” Kang, 75 Fed. Appx. at 977 (quoting Fierros, 274 F.3d at 193). Again, though, the court determined that because the plaintiff later received a pay raise that was larger than that received by some of his colleagues, and “although we have never explained precisely when denials of pay raises constitute ultimate employment decisions,” the court “could not say” that plaintiff suffered an adverse employment action.” Id. The court did acknowledge, however, that “the continuing vitality of the ‘ultimate employment decision’ doctrine is questionable in light of [Faragher and Burlington],”7 but declined to alter the rule without an en banc decision. Future decisions may directly resolve this issue. D. Causal Connection The final element of a plaintiff’s prima facie case requires a plaintiff to establish a causal connection between his or her protected activity and the adverse employment action suffered. This causal link “need not rise to the level of a ‘but for’ standard.’” Gee, 289 F.3d at 345 (quoting Raggs v. Miss. Power & Light Co., 278 F.3d 463, 471 (5th Cir. 2002)). Nor does a plaintiff need to prove that “her protected activity was the sole factor motivating the employer’s challenged decision in order to establish the ‘causal link’ element of a prima facie case.” Id. (quoting Long v. Eastfield Coll., 88 F.3d 300, 305 n.4 (5th Cir. 1996)). In fact, the causal link element is “much less stringent” than the “but for” causation standard to be presented to a jury for determination. Banks-Jones v. Hilton Reservations Worldwide, LLC, 2004 WL 190266 (N.D. Tex. 2004)(quoting Montemayor v. City of San Antonio, 276 F.3d 687, 692 (5th Cir. 2001)).8 1. Final Decisionmakers

The Fifth Circuit focuses on the final decisionmaker in determining whether an adverse employment action was taken as the result of retaliation. Gee, 289 F.3d at 346; see also Ackel, 339 F.3d at 385, and Long, 88 F.3d at 306-07. A causal link is established when the evidence shows that the

7 citing Felton v. Polles, 315 F.3d 470 (5th Cir. 2002) and Watts v. The Kroger Co., 170 F.3d 505, 510 n.4 (5th Cir. 1999)(expressly declining to reach the question of whether Burlington’s definition of “tangible employment actions” is identical to Mattern’s definition of “adverse employment action”). 8 See also Ackel, 339 F.3d at 385; Fierros, 274 F.3d at 191.

employer’s challenged decision was based in part on mere knowledge of the employee’s protected activity. Lyons, 2004 WL 515585 at *13 (quoting Medina v. Ramsey Steel Co., Inc., 238 F.3d 674, 684 (5th Cir. 2001)); see also Davis, 383 F.3d at 320 (“a plaintiff must at least raise a question about whether the person who denied him a promotion was aware of the protected activity”).

The Gee court noted that “statements and actions of ordinary employees are normally not imputable to the employer.” (quoting Long, 88 F.3d at 306, and Price Waterhouse v. Hopkins, 490 U.S. 228, 277 (1989)(O’Connor, J. concurring in the judgment)). However, if the decisionmaker is influenced by others who were acting from retaliatory motives, a plaintiff could show that the final decisionmaker was merely the “cat’s paw” of those who were acting with a retaliatory motive. As a result,

[t]he ultimate question, therefore is whether “the employee can demonstrate that others had influence or leverage over the official decisionmaker.”

Id. (quoting Rios v. Rossotti, 252 F.3d 219, 226 (5th Cir. 2001)). The degree of influence of others with retaliatory motive over the final decisionmaker is a question of fact. Id. (quoting Long, 88 F.3d at 307). Without evidence of this influence, courts generally will not impute knowledge of retaliatory motive to the final decisionmaker. See gen. Hamilton v. Texas Department of Transportation, 85 Fed.Appx. 8, 14-15 n. 7 (5th Cir., 2004). The Fifth Circuit has recently taken the “cat’s paw” theory one step further in imputing knowledge to a final decisionmaker. In Davis v. Dallas Area Rapid Transit, the plaintiff was denied a promotion after being prohibited from taking an examination necessary for the promotion. The human resources director determined which employees were qualified to take the examination, and she was unaware of plaintiff’s prior complaints of discrimination. However, the plaintiff alleged that the criteria used to determine which employees were qualified to take the examination were put in place by individuals with knowledge of his prior discrimination complaints, and therefore that knowledge should be imputed to the human resources director. Although the court ultimately ruled against plaintiffs on pretext grounds, it nonetheless noted that “by linking the denial of the promotion” to the criteria put in place by individuals with knowledge of plaintiffs’ complaints, plaintiffs “may have raised a fact question” on the causal link of their prima facie case and the court assumed that they had. 383 F.3d at 320.











9

2. Timing The timing of the adverse employment action can also be significant in analyzing the causal link element of a plaintiff’s prima facie case. However, the Fifth Circuit has not adopted a bright-line rule with respect to whether timing is dispositive of the issue, and the cases tend to be very fact-specific. The amount of time between an employee’s protected activity and the adverse employment action is “part of the analysis” with respect to whether an employee can establish the necessary causal connection. Gee, 289 F.3d 346 n.3 (quoting Shirley v. Chrysler First, Inc., 970 F.2d 39, 44 (5th Cir. 1992)). Timing can be a relevant factor in determining whether a causal connection exists where the timing is “suspiciously proximate.” Fabela, 329 F.3d 417 n. 9. However, the “contrapositive inference does not necessarily follow;” thus, “conclusions drawn from a lack of suspicious timing are less compelling. . . .” Id. In Fabela, although a period of six years elapsed between the plaintiff’s charge of discrimination and her termination, the court found the timing to be irrelevant in light of other evidence of retaliatory motive. 329 F.3d at 417-418. See also Lyons, 2004 WL 515585 at *14 (six months time not too remote); Gee, 289 F.3d at 347 n.3 (passage of two years not sufficient to prove lack of causal connection). The Fifth Circuit’s decisions are consistent with the Supreme Court’s decision in Clark County School District v. Breeden, 532 U.S. 268 (2001). In Clark County, the Court reversed a Ninth Circuit decision that relied solely on the three-month time period between the EEOC’s issuance of a right to sue letter to plaintiff and the adverse employment decision. The Court stated that

[c]ases that accept mere temporal proximity between an employer’s knowledge of protected activity and an adverse employment action as sufficient evidence of causality to establish a prima facie case uniformly hold that the temporal proximity must be “very close.”

Id. at 279. Because nearly two years passed between the filing of plaintiff’s charge and the adverse action, and because plaintiff had no other evidence in support of causation, the Court ruled in favor of the employer. Id. E. Pretext Regardless of whether the plaintiff establishes his or her prima facie case through direct or circumstantial evidence, the employer must articulate a legitimate non-discriminatory reason for the decision made. McDonnell Douglas, 411 U.S. at 802; Price Waterhouse, supra. However, the level of burden on

the employer and the quantum of evidence necessary to meet that burden is significantly different. 1. Direct Evidence The Fabela court addressed the employer’s burden under a “mixed motive” analysis after finding that the plaintiff had presented direct evidence of a causal link in support of her claims. As noted previously, once the plaintiff meets her prima facie burden with direct evidence, the burden of proof shifts to the employer to prove that the same adverse employment decision would have been made absent the protected conduct. Fabela, 329 F.3d at 417. In meeting this burden, “providing unrebutted evidence of a legitimate reason for the adverse employment decision is not sufficient to secure summary judgment under the direct evidence calculus.” Id. at 418. Instead, the Fabela court held that

[i]nsofar as [plaintiff] raised the specter of the improper criterion as a motivating factor, it is up to the [employer] either to disprove that the improper criterion was a factor in the employment decision, or that the same employment decision would have been made nonetheless.

Id. Because the employer was able to articulate a legitimate nondiscriminatory reason for the decision at issue, and because it produced evidence supporting that decision, the employer “created a triable issue of fact” rather than establish its entitlement to summary judgment as a matter of law. See also Fierros, 274 F.3d at 195. 2. Circumstantial Evidence In the more usual case of circumstantial evidence, the burden of production, not proof, shifts to the employer upon plaintiff’s establishment of his or her prima facie case. See gen. Davis, 383 F.3d at 320. The employer’s burden of production in this context is relatively low,9 and very few cases are decided on the basis of an employer’s inability to merely articulate a non-discriminatory reason for the employment decision at issue. Instead, the cases overwhelmingly deal with whether the plaintiff has demonstrated that the employer’s articulated reason is a pretext for retaliatory motive. See Aldrup v. Caldera, 274 F.3d 282, 286 (5th Cir. 1996). The “ultimate burden of persuading the trier of fact that the defendant [retaliated] against the plaintiff remains at all times with the plaintiff.” Raggs, 278 F.3d at 468. The causation burden at this stage is different than at the prima facie level. To succeed on a 9 See Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 252-53 (1981).








10

retaliation claim, a plaintiff must show that “but for” the protected conduct, the adverse employment decision would not have been made. Long, 88 F.3d at 305 n.4. See also Banks-Jones, 2004 WL 190266 at *6.

Since the Supreme Court’s decision in Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 146-48 (2000), it is clear that a plaintiff may simply present some evidence that the employer’s articulated reason for its decision is false, without further evidence of retaliation. See Gee, 289 F.3d at 348 (“a plaintiff may withstand a motion for summary judgment without adducing additional, independent evidence of retaliation”); Fierros, 274 F.3d at 191 (prima facie case “plus evidence that the reasons given by the employer for the adverse employment action were pretextual, jury may infer the existence of ‘but for’ causation”). However, “the plaintiff must offer some evidence” that the employer’s articulated reason is false. Swanson v. General Services Admin., 110 F.3d 1180, 1185 (5th Cir. 1997)(“The trier of fact may not simply choose to disbelieve the employer’s explanation in the absence of any evidence showing why it should do so.”).

F. Damages Plaintiffs who prevail on their retaliation claims are generally entitled to compensatory and punitive damages. The measure of those damages is typically determined by the statute under which the plaintiff prevailed.10 Since the Supreme Court’s decision in Kolstad v. American Dental Ass’n, 527 U.S. 526, 537 (1999), a plaintiff must prove that the employer acted with “malice or reckless indifference to the [plaintiff’s] federal rights” to recover punitive damages. Additionally, only conduct by employees acting in their “managerial capacity” and in the scope of his or her employment will result in an award of punitive damages against the employer. Id. at 535. Decisions that are contrary to the employer’s “good faith efforts to comply with Title VII” cannot result in vicarious liability for the employer. Id. at 537. Although Kolstad dealt with gender discrimination under Title VII, the standards announced by the Supreme Court are almost certainly applicable to other employment-related causes of action. In fact, the Fifth Circuit applied the Kolstad standards in reversing a punitive damages award for the plaintiff in Green v. Administrators of the Tulane Educational Fund, 284 F.3d 642 (5th Cir. 2002). Although the court upheld judgment for the plaintiff on

10 Compare Title VII (compensatory and punitive damages up to $300,000), with the Age Discrimination in Employment Act (compensatory damages time two for a finding of a willful violation).

her hostile environment and retaliation claims, the court found that the employer made good faith efforts to comply with Title VII. Thus, the punitive damages award could not stand. IV. TEXAS STATE LAWS A. Texas Whistleblower Act The Whistleblower Act prohibits a state or local government agency from suspending or terminating a public employee who in good faith reports a violation of law by the employer or another public employee to an appropriate law enforcement agency. Tex. Gov’t Code Ann. §554.002(a)(Vernon 2004). Since the “State views whistleblowing by a public employee as a courageous act of loyalty to a larger community,”11 the Act protects employees who in good faith believe they are reporting violations of the law, regardless of whether or not their belief is correct. Tex. Dep’t of Transp. v. Needham, 82 S.W.3d 314, 320 (Tex. 2002); Wichita County, Texas v. Hart, 917 S.W.2d 779, 784-86 (Tex. 1996). The Act evidences two legislative purposes: 1) to protect public employees from retaliation by their employer when, in good faith, employees report a violation of the law, and 2) to secure lawful conduct on the part of those who direct and conduct the affairs of public bodies. Howard, 2005 WL 3332192 at *3 (quoting City of New Braunfels v. Allen, 132 S.W.3e at 157, 161 (Tex.App. – Austin 2004, no pet.)).

To establish a claim under the Act, the employee must prove:

1) he or she is a public employee; 2) he acted in good faith in making a report; 3) the report involved a violation of the law; 4) the report was made to an appropriate law

enforcement authority; and 5) he suffered retaliation for making the report.

Tex. Gov’t Code Ann. §554.002 (West Supp. 2002); City of San Antonio v. Heim, 932 S.W.2d 287, 290 (Tex.App. – Austin 1996, writ denied).

A “report” for the purposes of the Act includes “any disclosure of information regarding a public servant’s employer tending to directly or circumstantially prove the substances of a violation of criminal or civil law, statutes, administrative rules or regulations.” Howard, 3332192 at *3 (quoting Davis v. Ector County, 40 F.3d 777, 785 (5th Cir. 1994)). No specific phrasing is required in making a report, nor is an employee required to “state his complaint in the affirmative, as opposed to reporting the matters in the

11Texas Dept of Assistive and Rehabilitative Services v. Howard, ___ S.W.3d ___, 2005 WL 3332192 (Tex.App. – Austin 2005); Tex. Gov’t Code Ann. §§554.002-,003 (West 2004).











11

form of a query.” Id. (quoting Casteneda v. Dep’t of Agric., 831 S.W.2d 501, 503-04 (Tex.App. – Corpus Christi 1992, writ denied)). Thus, the plaintiff’s question to the State Auditor’s Office concerning the “legality/validity” of his department’s practices constituted a report for purposes of the Act. Id. Before bringing suit in court, an employee must first initiate action under the grievance or appeal procedures of the employer no later than the 90th day after the date on which the alleged violation occurred. Tex. Gov’t Code Ann. §554.006(b) (Vernon 2004). If it is unclear whether the employer has a post-termination grievance procedure, or it is unclear what the procedure is, and the terminated employee timely notified the employer that she is invoking the grievance procedure, the employee is deemed to have adequately invoked the grievance process. University of Texas Medical Branch v. Hohman, 6 S.W.3d 767, 775 (Tex.App.—Houston [1st Dist.] 1999). The 90-day limitations period is tolled during the time the employee is following the grievance procedure. Castleberry Indep. Sch. Dist. v. Doe, 35 S.W.3d 777, 781 (Tex.App. – Fort Worth 2001, pet. denied). Whether a plaintiff has complied with the statutory limitations is a question of fact for the jury. Barth, 2005 WL 1539634 at *4; see also Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 227-28 (Tex. 2004).

However, the Texas Supreme Court recently made it clear that an employee is not required to wait the statutory 60 days given to the employer to consider the grievance. In Univ. of Tex. Med. Branch at Galveston v. Barrett, 159 S.W.3d 631 (2005), the Court explained that §554.006 of the Government Code does not require exhaustion before suit can be filed. Instead, the Court held that the interests of the statute can be adequately protected by abating the prematurely filed action until the end of the 60-day period, provided that the procedures have been timely initiated and can continue until the required period has elapsed or a final decision is rendered, whichever occurs first.12

12 There is also a split in the courts of appeals

concerning whether the Act’s grievance requirements are jurisdictional. Compare Univ. of Houston v. Barth, ___ S.W.3d ___, 2005 WL 1539624 (Tex.App. – Houston [1st Dist.] 2005); Tex. S. Univ. v. Carter, 84 S.W.2d 787, 792 (Tex.App. – Houston [1st Dist.] 2002, no pet.); with Univ. of Houston v. Elthon, 9 S.W.3d 351 (Tex.App. – Houston [14th Dist.] 1999, pet. dism’d w.o.j.); Castleberry Indep.Sch. Dist. v. Doe, 35 S.W.3d 777 (Tex.App. – Fort Worth 2001, pet. dism’d w.o.j.); Tex. Dep’t of Mental Health & Mental Retardation v. Olofsson, 59 S.W.3d 831 (Tex.App. – Austin 2001, pet dism’d).

1. Good Faith “Good faith” means that 1) the employee believed

that the conduct reported was a violation of the law (the subjective prong), and 2) the employee’s belief was reasonable in light of his or her training and experience (the objective prong). Wichita County v. Hart, 917 S.W.2d 779, 784-85 (Tex. 1996). The first prong of this test considers the employee’s subjective belief, i.e., whether the employee honestly believed that the conduct was a violation of the law, while the second prong measures the employee’s belief against that of a reasonably prudent employee in similar circumstances. Id. A report of an alleged violation may be in good faith even though incorrect, provided that a reasonable person with the employee’s same level of training and experience would also have believed that a violation had occurred. Hart, 917 S.W.2d at 785-86; see also Llanes v. Corpus Christi, 64 S.,W.3d 638, 643 (Tex.App. – Corpus Christi 2001, pet. denied).

For example, the reasonableness of a police officer’s belief that a law has been violated will be reviewed more closely than will the belief of a person who is not in law enforcement. Town of Flower Mound v. Teague, 111 S.W.3d 742, 753 (Tex.App. – Fort Worth 2003. rev. den.)(citing Harris County Pct. Four Constable Dep’t v. Grabowski, 922 S.W.2d 954, 956 (Tex. 1996)).

When making a report, a plaintiff’s recitation of the specific name of the law purportedly being violated, while “not necessary,” is persuasive. Howard, 3332192 at *6. As noted by the San Antonio Court of Appeals, “[t]he fact that [the whistleblower] has pointed out an actual law that he believes [his co-worker] violated is relevant to our inquiry here.” Bexar County v. Lopez, 94 S.W.3d 711, 713 (San Antonio – 2002, no pet.). 2. Violation of Law Under the Act, “law” is defined as a) a state or federal statute; b) an ordinance of a local governmental entity; or c) a rule adopted under statute or ordinance. Tex. Gov’t Code §54.001(1) (Vernon 2004). There is a split in the Courts of Appeal concerning whether the “law” at issue must relate to the public good. Some courts have held that the type of “law” contemplated by the Act is one which relates to “the public good or society in general.” See Hill v. Burnet County Sheriff’s Dep’t, 96 S.W.3d 436, 440 (Tex.App. – Austin 2002, pet. denied); City of Cockrell Hill v. Johnson, 48 S.W.3d 887, 896 (Tex.App. – Fort Worth 2001, pet. denied); Tex. Dep’t of Criminal Justice v. Terrell, 925 S.W.2d 44, 60 (Tex.App. – Tyler 1995, no writ). However, other courts have rejected this requirement, because “it is not consistent with the plain language of the definition provided in the Whistleblower Act.” See City of Waco v. Lopez, ___ S.W.3d ___, 2005 WL






















12

3438559 (Tex.App. – Waco); City of Fort Worth v. Johnson, 105 S.W.3d 887, 896 (Tex.App. –Waco, 2003, no pet.); Scott v. Godwin, 147 S.W.3d 609, 622 (Tex.App. – Corpus Christi 2004, no pet.). Internal department policies are not “laws” under the Act. Harris County Precinct Four Constable Dep’t v. Grabowski, 922 S.W.2d 954 (Tex. 1996)(per curiam); City of Houston v. Kallina, 97 S.W.3d 170 (Tex.App. – Houston [14th Dist.] 2002, pet. denied); Ruiz v. City of San Antonio, 966 S.W.2d 128 (Tex.App. – Austin 1998, no pet.). However, the Waco court has determined that internal anti-discrimination policies adopted under a statute or ordinance can constitute “laws” for purposes of the Act. In distinguishing the previously cited cases, the court in City of Waco v. Lopez dealt with an internal EEO policy that was formally adopted by the Waco City Council in a resolution. The plaintiff argued that because the City was authorized to adopt a rule “for the good government, peace, or order of the municipality” under the Local Government Code, the policy was “adopted” pursuant to a statute or ordinance. Noting the liberal construction of the definition of “law” in the Act to effectuate its remedial purposes, the court held that the City’s EEO policy was a “law” for purposes of the Act. 2005 WL 3438559 at *513 The Lopez court also rejected the City’s contention that the Texas Commission on Human Rights Act provided the exclusive remedy for plaintiff’s claims. Relying on Stinnett v Williamson County Sheriff’s Department, 858 S.,W.2d 573 (Tex. App. – Austin 1993, writ denied), the City argued that the plaintiff’s complaint about unlawful discrimination under the City’s EEO policy constituted an action exclusively governed by the TCHRA. The Lopez court distinguished the Stinnett decision by noting that the plaintiff in Stinnett had actually filed a complaint under the TCHRA; the plaintiff in Lopez had not. The Lopez court also relied on the fact that the TCHRA has an election of remedies provision which expressly recognizes that the facts which support a claim under the TCHRA may also support a claim under some “other law or an order or ordinance of a political subdivision.” Lopez, 2005 WL 3438559 at *2-3; Tex. Lab. Code Ann. §21.211 (Vernon 1996). In contrast, the Stinnett plaintiff’s claim arose under the ADEA, which has no such election of remedies provision. Thus, the policy in this case equated to a “law” within the meaning of the Act.

13In dissent, the Chief Justice for the Waco Court noted that this split in the Courts of Appeals makes this issue ripe for consideration by the Texas Supreme Court. Lopez, 2005 WL 3438559 at *7.

3. Appropriate Law Enforcement Authority The employee must also report the allegedly

illegal conduct to the “appropriate law enforcement agency.” The 1995 amendment to the Act defines an appropriate law enforcement agency as a governmental entity authorized to “regulate under or enforce the law alleged to be violated in the report.” Tex. Gov’t Code §554.002(b)(2). Under this definition, the Texas Supreme Court has held that

it is not enough that a government entity has general authority to regulate, enforce, investigate, or prosecute. Rather, . . .the statute defines that term as a governmental entity authorized to regulate under or enforce “the law alleged to be violated in the report,” or to investigate or prosecute “a violation of criminal law.”

Needham, 82 S.W.3d at 320. As a result, “the particular law the public employee reported violated is critical to the determination.” Id.

The determination of who is an appropriate law enforcement authority is a question of law for the court. Teague, 111 S.W.3d at 755 (citing Needham, 82 S.W.3d at 318). Police officers and district attorneys are appropriate law enforcement authorities because they are authorized to investigate or prosecute violations of criminal law. Id. at 755 n.9; see also City of Fort Worth v. Johnson, 105 S.W.3d 154, 160 (Tex.App. – Waco 2003).

The same good faith analysis is applied to whether the employee believed that the agency to which he or she reported the allegedly illegal conduct was an “appropriate law enforcement authority” within the meaning of the statute. Needham, 82 S.W.3d at 321. The test for good faith belief regarding an appropriate law enforcement authority thus has both a subjective and objective prong:

The subjective prong requires that the employee believe that the governmental entity was either authorized to “regulate under or enforce the law alleged to be violated in the report, or that it was authorized to “investigate or prosecute a violation of the criminal law….The objective prong requires that the employee’s belief that the report was made to an appropriate law enforcement authority be reasonable in light of his training and experience.

Howard, 2005 WL 3332192 at *8 (quoting Needhan, 82 S.W.3d at 320-21). In Howard, the Austin Court of Appeals applied the Needham test in finding that the Sate Auditor’s Office (“SAO”) was the “appropriate law enforcement













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agency” to whom the plaintiff reported his violations. Because the SAO had authority to “audit or investigate” the state governmental entity being sued, the Court held that the plaintiff (a 24 year employee with the department) had at least a good faith belief that the SAO was the appropriate law enforcement agency. Howard, 2005 WL 3332192 at *10. The Lopez court also determined that the EEO officer for the City of Waco was an “appropriate law enforcement agency” for the plaintiff’s report of violations of the internal EEO policy. Because the “EEO officer had the responsibility to monitor, report and recommend procedures to insure EEO compliance with federal, state and local laws, rules and regulations,” he “appeared authorized to ‘regulate under’ the EEO policy” and therefore was the appropriate person to whom to report violations. Lopez, 2005 WL 3438559 at *5-6.

4. Adverse Employment Decision Unlike other retaliation claims, a plaintiff need not prove that he or she suffered an “ultimate employment decision” to support a whistleblower claim. The statutory definition of “personnel action” includes an action that affects a public employee’s compensation, promotion, demotion, transfer, work assignment, or performance evaluation. Tex. Gov’t Code Ann. §554.001(3) (Vernon 2004). As a result, action that constitutes a “step toward disciplinary action,” a below standard evaluation and perception of less desirable job assignments can constitute retaliatory conduct under the Act. Texas Dep’t of Mental Health v. Rodriguez, 63 S.W.3d 475 (Tex.App. – San Antonio 2001). An ongoing course of harassment can also constitute an adverse employment action for claims under the Act. See Univ. of Tex. – Pan Am. v. De Los Santos, 997 S.W.2d 817, 820 (Tex.App. – Corpus Christi 1999, no pet.)(continuing violation doctrine applied to Whistleblower Act); City of McAllen v. Torres, 2005 WL 1177727 (Tex.App. – Corpus Christi 2005)(memorandum opinion). There is also no longer a dispute concerning constructive discharge. The court in University of Texas Medical Branch v. Hohman, 6 S.W.3d 767, 773 (Tex.App. – Houston [1st Dist.] 1999) held that a constructive discharge meets the requirement of a “termination” under the Act. Noting that the Texas Supreme Court’s decision in Sabine Pilot Serv., Inc. v. Lauck, 687 S.W.2d 733 (Tex. 1985) involved a constructive discharge, the Hohman court found that “[t]he legislature could not have intended to provide a cause of action to employees who were fired for reporting violations of the law, while at the same time excluding employees who were coerced into

resigning.” Hohman, 6 S.W.3d at 773.14 Whether the acts about which a plaintiff complains constitute adverse employment actions are contested fact issues to be resolved by the trier of fact. Barth, 2005 WL 1539624 at *5; Hill v. Burnet County Sheriff’s Dep’t, 96 S.W.3d 436 442 (Tex.App. – Austin 2002, pet. denied). 5. Causation

The Texas Supreme Court has determined that a plaintiff suing under the Whistleblower Act must prove that he suffered retaliatory conduct by the employer that would not have occurred had the employee not reported the violation of law. City of Fort Worth v. Zimlich, 29 S.W.3d 62, 67 (Tex. 2000). Although the plaintiff must prove that “but for” his report he would not have suffered the employment action at issue, the plaintiff need not establish that the reported violation of the law was the sole cause of the action. Dep’t of Human Servs. v. Hinds, 904 S.W.2d 629, 635 (Tex. 1995); City of Fort Worth v. Johnson, 105 S.W.3d 154, 163 (Tex.App. – Waco 2003, no pet).

If an employee is terminated or suspended within 90 days after making the report, the Act provides a rebuttable presumption that a causal connection exists between the report and the adverse employment action. Tex. Gov’t Code §554.004(a) (Vernon 2004). The presumption does not shift the burden of proof and stands only in the absence of evidence to the contrary. Johnson, 105 S.W.3d at 163 (citations omitted). The presumption dissolves once the employer produces sufficient evidence to support a finding that there was no causal connection. Texas A&M University v. Chambers, 31 S.W.3d 780, 784 (Tex.App. – Austin 2000, pet. denied).

To establish a causal connection through circumstantial evidence, the factors set forth in Continental Coffee Prods. Co. v. Cazarez, 937 S.W. 2d 444, 450 (Tex. 1996) were adopted by the Texas Supreme Court for claims under the Act. Zimlich, 29 S.W.2d at 69. As in claims arising under §451, circumstantial evidence includes:

1) knowledge of the reported violation by those

making the decision; 2) expression of a negative attitude towards the

employee’s report; 3) failure to adhere to established company

policies; 4) discriminatory treatment in comparison to

similarly situated employees; and

14 In constructive discharge cases, the statute of limitations begins to run on the date the employee submits the resignation, rather than the day they leave work. Hohman, 6 S.W.3d at 774.

















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5) evidence that the stated reason for the discharge was false.

Id.; see also Harris County v. Vernagallo, ___ S.W.3d ___, 2005 WL 1771128 (Tex.App. – Houston [14th Dist.] 2005).

However, the plaintiff must present some evidence of a causal connection; it cannot be simply inferred by the factfinder. Johnson, 105 S.W.3d at 163. Nor can evidence of a superior’s negative attitude towards an employee’s report, standing alone, constitute sufficient evidence to establish the requisite causal connection. Zimlich, 29 S.W.3d at 69; Vernagallo, 2005 WL 1771128 at *8. Moreover, an employee must show that the person who ultimately made the adverse employment decision knew of the reported violation. Id.; Johnson, 105 S.W.3d at 164.15 Finally, a factfinder cannot merely speculate that the stated reason for a termination was false; there must be some evidence in the record. Id.; Zimlich, 29 S.W.3d at 70.

Even if a plaintiff sustains his prima facie burden and successfully states a whistleblower claim, the defendant may still prevail by establishing an affirmative defense similar to that applicable in mixed-motive discrimination cases. A defendant can avoid liability by proving that it would have taken the negative personnel actions against the plaintiff based solely on information that is not related to the fact that a protected report was made under the Act. Tex. Gov’t Code Ann. §554.004(b) (West 2004). As with any affirmative defense, the defendant has the burden of proof.

B. Texas Commission on Human Rights Act The Texas Commission on Human Rights Act (“TCHRA”) is the Texas state counterpart to federal anti-discrimination laws. Tex. Lab. Code §21.001, et seq. Like federal employment statutes, the TCHRA prohibits an employer from retaliating against a person who 1) opposes a discriminatory practice; 2) makes or files a charge; 3) files a complaint; or 4) testifies, assists, or participates in any manner in an investigation, proceeding or hearing. Tex. Lab. Code §21.055. Because the purpose of the TCHRA is to provide for the execution of the policies of Title VII of the Civil Rights Act of 1964, “analogous federal statutes and the cases interpreting them” are guiding authority. Tex. Lab. Code §21.001(1) (Vernon 1996);

15 The Vernagallo court also noted that the Texas Supreme Court has declined to adopt the “conduit” theory, which permits liability when a supervisor with knowledge of the report makes a recommendation to another supervisor without knowledge. Vernagallo, 2005 WL 1771128 at *7, n. 15; Zimlich, 29 S.W.3d at 70-71.

Quantum Chem. Corp v. Toennies, 47 S.W.3d 473, 476 (Tex. 2001). Texas courts have articulated the same elements as federal courts for establishing a prima facie case of retaliation under the TCHRA. See Wal-Mart Stores, Inc. v. Lane, 31 S.W.3d 282, 295 (Tex.App. – Corpus Christi 2000, no writ). As with federal statutes, a plaintiff under the TCHRA must prove that he or she engaged in some conduct protected by the Act. To invoke the “participation” clause of the statute, the employee must actively participate in a proceeding. In Salay v. Baylor University, 115 S.W.3d 625 (Tex.App. – Waco 2003), the plaintiff urged the court to adopt a “perceived theory” of illegal retaliation recognized by the federal Third Circuit Court of Appeals.16 The plaintiff presented no evidence that he actually participated in any investigation, proceeding or hearing under the TCHRA. Instead, he argued that because he allegedly opposed gender discrimination against a co-worker, the jury could consider whether the employer “perceived” that he participated. The Salay court rejected plaintiff’s position, finding that such a holding would encroach on the at-will employment doctrine without express legislative action. Id. at 627; see also City of Midland v. O’Bryant, 18 S.W.3d 209, 216 (Tex. 2000); Montgomery County Hosp. Dist. v. Brown, 965 S.W.2d 501, 502 (Tex. 1998).

However, there is some confusion with respect to the proper burden of proof in retaliation cases arising under the TCHRA. In Pineda v. United Parcel Service, Inc., 360 F.3d 483, 487 (5th Cir. 2004), the Fifth Circuit applied the “but for” standard to a TCHRA retaliation claim. The plaintiff in Pineda argued that in light of the Texas Supreme Court’s decision in Quantum, the appropriate burden was whether a “motivating factor” in the decision made. The Quantum case dealt with age discrimination under the TCHRA which is governed by Texas Labor Code §21.125(a). The statute defines the causation requirement such that the discrimination need only be “a motivating factor” in the adverse employment decision to establish liability. The Quantum court ruled that “’a motivating factor’” is the correct standard of causation. . .in all TCHRA unlawful employment practice claims.” Quantum, 47 S.W.3d at 479-80. Thus, the plaintiff in Pineda asserted that the lower “motivating factor” was the correct standard to apply to his TCHRA retaliation claim, rather than the more difficult “but for” burden under Title VII. The Fifth Circuit disagreed. First, the Fifth Circuit noted that a retaliation claim is governed by §21.055 of the Texas Labor Code, rather than §21.125(a) which was the provision at issue in Quantum. The court then noted that by its 16 Fogelman v. Mercy Hosp., Inc., 283 F.3d 561 (3rd Cir.), cert. denied, 537 U.S. 824 (2002).















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terms, 21.055 prohibited discrimination based on conduct other than those protected characteristics identified in §21.125(a). The Pineda court thus concluded

§21.125(a) is inapplicable to employment discrimination cases brought under §21.055 because §21.125(a), by its own terms, is only applicable when alleged discrimination is based on race, color, sex, national origin, religion, age or disability.

Pineda, 360 F.3d at 488 (emphasis in original). Noting that the Quantum court stated that “the proper standard for causation would be the ‘but for’ test” if §21.125(a) did not apply, the Pineda court applied the “but for” standard rather than the “motivating factor” standard advocated by the plaintiff. Id.

To establish pretext under the TCHRA, plaintiff may not merely “present evidence that the . . . investigation was imperfect, incomplete, or arrived at a possibly incorrect conclusion.” Wal-Mart v. Canchola, 121 S.W.3d 735, 740 (Tex. 2003). Instead, the plaintiff must show both that the employer’s articulated reason for its decision was false and that discrimination was the real reason. Id.; see also Pineda, 360 F.3d at 490. C. Texas Labor Code §451 Section 451.001 of the Texas Labor Code prohibits an employer from discharging an employee in retaliation for 1) filing a workers’ compensation claim in good faith; 2) hired a lawyer to represent the employee in a claim; 3) instituting or causing to be instituted in good faith a workers’ compensation proceeding; or 4) testifying or is about to testify in a workers’ compensation proceeding. Tex. Lab. Code Ann. §451.001 (Vernon 1996); The Housing Authority of the City of El Paso v. Guerra, 963 S.W.2d 946, 950 (Tex.App. – El Paso 1998). Thus, an employee does not have to actually file a workers’ compensation claim to invoke the statute’s protections. Id. Merely informing an employer of a compensable injury is sufficient to “institute” a compensation proceeding under the statute. Id. (quoting Stephens v. Delhi Gas Pipeline Corp., 924 S.W.2d 765, 771 (Tex.App. – Texarkana 1996, writ denied)).

State agencies are subject to the anti-retaliation provisions of §451 through the State Applications Act. Kerrville State Hospital v. Fernandez, 28 S.W.3d 1 (Tex. 2000). However, employers who are not covered by the Texas Workers’ Compensation Act cannot be held liable under §451. Texas Mexican Ry. Co. v. Bouchet, 963 S.W.2d 52 (Tex. 1998).

1. Elements of Claim To prevail, on a §451 claim, an employee need not show he or she was fired solely because of the protected activity. Courtney v. Nibco, Inc., 152 S.W.3d 640 (Tex.App. – Tyler 2004, no writ); Lee v. Haynes & Boone, L.L.P., 129 S.W.3d 192, 196 (Tex.App. – Dallas 2004, pet. denied). Rather, she must show that “but for” the filing of the claim, the discharge would not have occurred when it did. City of Fort Worth v. Zimlich, 29 S.W.3d 62, 67 (Tex. 2000) 17; Vallance v. Irving C.A.R.E.S., Inc., 14 S.W.3d 833, 837 (Tex.App. – Dallas 2000)(citing Continental Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 450-51 n.3 (Tex. 1996)). An employee’s subjective belief alone is insufficient to support the causal connection required for a workers’ compensation retaliation claim. Guerra, 963 S.W.2d at 950; see also Tex. Division-Tranter, Inc. v. Carrozza, 876 S.W.2d 312, 314 (Tex. 1994).

Once the employee establishes the causal link, the burden then shifts to the employer to show that the employee was discharged for a legitimate reason. Id. Thereafter, the burden shifts back to the employee to produce controverting evidence of a retaliatory motive. Courtney, 152 S.W.3d at 642; McIntyre v. Lockheed Corp., 970 S.W.2d 695, 697 (Tex.App. – Fort Worth 1998, no pet.).

As with most employment-related lawsuits, direct evidence is rarely available to prove a workers’ compensation retaliation claim. Thus, circumstantial evidence is most commonly used to support the claim.18 The Texas Supreme Court has determined that circumstantial evidence sufficient to establish a causal connection between an adverse employment action and the protected activity includes:

1) knowledge of the compensation claim by

those making the decision; 2) expression of a negative attitude towards the

employee’s injured condition; 3) failure to adhere to established company

policies; 4) discriminatory treatment in comparison to

similarly situated employees; and 5) evidence that the stated reason for the

discharge was false. Continental Coffee, 937 S.W.2d at 451. In apparent recognition of the fact that most decisionmakers will know that an employee has filed a workers’

17 Although Zimlich involved a claim under the Texas Whistleblower Act, the standard for causation is also a “but for” standard. 18 “The causal connection is an element of the employee’s prima facie case and may be established by direct or circumstantial evidence. Garcia v. Allen, 28 S.W.3d 587, 600 (Tex.App. – Corpus Christi 2000, pet. denied).



















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compensation claim, Texas courts have held that mere knowledge of a workers’ compensation, standing alone, does not establish a causal link, but is only one factor to be considered in the light of the record as a whole. Courtney, 152 S.W.3d at 643 (quoting Lone Star Steel Co. v. Hatten, 104 S.W.3d 323, 327-28 (Tex.App. – Texarkana 2003, no pet.)); see also Vallance, 14 S.W.3d at 837. At least one Texas court has also acknowledged a “hostile environment” claim under §451. In Garcia v. Levi Strauss & Co., 85 S.W.3d 362 (Tex.App. – El Paso 2002, no pet.), the court held that a hostile environment claim could be established by applying the “severe and pervasive” test used in other hostile environment claims. 2. Damages If an employee proves retaliatory discharge in violation of §451, the employee is entitled to recover lost wages and benefits. Plaintiffs may also recover past and future compensatory damages, which may include emotional pain and suffering, inconvenience, mental anguish, loss of enjoyment of life and other nonpecuniary losses. See Wal-Mart Stores, Inc. v. Odem, 929 S.W.2d 513, 528 (Tex.App. – San Antonio 1998, writ den.). A plaintiff may also receive punitive damages upon a showing of malice. Id. To support an award of mental anguish damages, a plaintiff must show either:

1) direct evidence of the nature, duration, and severity of her mental anguish, thus establishing a substantial disruption in the plaintiff’s daily routine, or

2) evidence of a high degree of mental pain and distress that is more than mere worry, anxiety, vexation, embarrassment, or anger.

Lathan v. Castillo, 972 S.W.2d 66, 70 (Tex. 1998)(citations omitted). Of importance to employers, Texas courts have determined that the “generally nebulous” issues of mental anguish are “necessarily speculative” and “peculiarly within the province of the jury to resolve these matters and set the amount of such damages.” Spohn Hosp. v. Mayer, 72 S.W.3d 52, 67 (Tex.App.—Corpus Christi 2001), rev’d on other grounds, 104 S.W.3d 878 (Tex. 2003); see also C&D Robotics, Inc. v. Mann, 47 S.W.3d 194, 200-01 (Tex.App. – Texarkana 2001, no pet.)(jury has “broad discretion” to set compensatory damages). With respect to punitive damages, Texas courts apply the factors set forth in Alamo Nat’l Bank v. Kraus, 616 S.W.2d 908 (Tex. 1981) and BMW of N. Am. v. Gore, 517 U.S. 559 (1996):

1) the degree of reprehensibility of the defendant’s misconduct;

2) the disparity between actual and punitive damages;

3) a comparison of the punitive damages awarded and other civil or criminal penalties that could be imposed for similar misconduct; and

4) the extent to which such conduct offends a public sense of justice and propriety. 19

D. Common Law Exception Texas courts continue to reject plaintiffs’ attempts to expand the employment at-will doctrine. There continues to be no common law “whistleblower” type claim available to employees in Texas. The sole common law exception to the employment at will doctrine remains Sabine Pilot Svs. v. Hauck, 687 S.W.2d 733 (Tex. 1985). The Texas Supreme Court held that an employee may not be terminated from employment for refusing to commit an illegal act requested by his or her employer. This “public policy” exception is narrowly tailored, and unlike other retaliation claims, the request for illegal conduct must be the sole reason for the employee’s discharge. As later noted by the Texas Supreme Court, an employer cannot be liable for wrongful discharge if the discharge is based on both the employee’s refusal to commit the illegal act and another legitimate reason. Texas Dep’t of Human Servs. v. Hinds, 904 S.W.2d 629, 633 (Tex. 1995). The employer’s request must subject the employee to criminal penalties for a Sabine Pilot claim to prevail. See Winters v. Houston Chronicle Publishing Co., 795 S.W.2d 723, 724 (Tex. 1990). An employee’s “good faith” belief that his conduct violated a law with criminal penalties is insufficient to support a claim. See gen. Williams v. Enserch Corp., 2000 WL 31802 (Tex.App. – Dallas 2000, pet denied). Moreover, the employee must actually refuse to perform the illegal act to support a Sabine Pilot claim. Garza v. Doctors on Wilcrest, 976 S.W.2d 899, 901 (Tex.App. – Houston [14th Dist.] 1998, pet. denied). Constructive discharge will satisfy the termination requirement of this claim. Nguyen v. Technical & Scientific Application, Inc., 981 S.W.2d 900 (Tex.App. – Houston [1sst Dist.] 1998, no writ). V. CONCLUSION Retaliation claims continue to be a significant source of litigation in both federal and state courts. It can be expected that employees will continue to assert these claims in today’s social and political climate.

19 The first four Kraus standards are addressed by Gore, and the Kraus factors are to be continuing considerations within the framework of Gore guidelines. See Apache Corp. v. Moore, 960 S.W.2d 746, 749 (Tex.App. – Amarillo 1997, pet. denied).




















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The broad overview of this paper will hopefully provide guidance to a practitioner facing these claims.

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RETALIATORY FIRINGS - TexasBarCLE · She has significant trial experience at both the state and federal levels, jury and non-jury. ... Retaliatory Firings Chapter 2 i TABLE OF CONTENTS