Whistle While You Work – “Adverse Employment Action” Under the Texas Whistleblower Act

by Heather Castillo

School districts should be aware of a recent court of appeals decision concerning the Texas Whistleblower Act. In Burleson v. Collin County Community College District, the court of appeals reversed the trial court’s decision to grant the College’s plea to the jurisdiction because it found that some personnel actions might be considered “adverse personnel actions” under certain circumstances when the Texas Whistleblower Act (the “Act”) is involved. At issue were personnel actions that school districts would typically consider benign or routine. For example, changing an employee’s schedule or shift, or issuing an employee a “coaching” memo that is not typically considered formal discipline.

Texas Whistleblower Act Overview

Generally, governmental entities such as school districts and colleges are immune from suit and liability under the sovereign immunity doctrine. However, the Act waives immunity from suit to the extent that a governmental entity is liable under the Act’s provisions. See Tex. Gov’t Code § 554.0035. The Act protects “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 § 554.002(a). The Act prohibits retaliation by providing 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 makes such a report. Id. (emphasis added). The Act defines “personnel action” as: “an action that affects a public employee’s compensation, promotion, demotion, transfer, work assignment, or performance evaluation.” Tex. Gov’t Code §554.001(3). However, the Act does not define what constitutes an “adverse personnel action.

The Texas Supreme Court has adopted a test used in a United States Supreme Court decision to determine whether retaliation has occurred in violation of the Act. The test is this: for a personnel action to be adverse within the meaning of the Act, it must be material and likely to deter a reasonable, similarly situated employee from reporting a violation of the law. This test is meant to separate “petty slights” and “minor annoyances” from legitimate retaliatory actions that would be likely to deter an employee from reporting violations of law.

Burleson v. Collin County Community College District

In the recent Burleson v. Collin County Community College District case, plaintiffs Jon Mark, Craig Bennight, and Billy Burleson, are police officers working for the Collin County Community College District. All three officers sued the College alleging violations of the Whistleblower Act claiming that they suffered retaliation in the form of adverse personnel actions after they reported crimes.

In a plea to the jurisdiction, the College claimed that sovereign immunity defeated subject matter jurisdiction because the College did not take adverse personnel action against the three officers. The College also argued that two of the officers did not meet the jurisdictional prerequisites for a whistleblower grievance. The trial court granted the College’s plea, so the officers appealed.

Mark alleges that he was retaliated against after he reported illegal activity. Specifically, he reported that he was ordered to lock an intoxicated person in a closet for four hours and that such action constituted the crime of official oppression. After making this report, he received an “employee coaching” form write-up and a schedule change to “deep nights” (6 p.m.-6 a.m.) in light of “violations claimed in the coaching report.” He filed a grievance, which was denied by the College.

Bennight and Burleson had been investigating the theft of books from the College bookstore when they began to suspect a scheme to defraud the College, corruption, and a cover-up by high ranking officials. They reported violations of the law related to the bookstore, including coercion of a public servant, public corruption, tampering with evidence, and tampering with a witness to various law enforcement authorities. They also reported to the College’s police chief that employees were stealing from the bookstore, but they assert that they were then ordered to close their investigation. Bennight alleged retaliation because his schedule was changed to “deep nights” and he was assigned to another campus. Bennight asserted that he was hired to be an investigator, but that he could no longer do his normal duties on the new late night shift because he could not file cases with the district attorney when the courts are closed. Burleson also alleged retaliation because his schedule was changed from the 10 a.m.-6 p.m. shift to the 2 p.m.-10 p.m. shift and he was removed from “flex time.” Burleson asserted that the College police chief had previously allowed Burleson to work a flexible schedule because he was aware of Burleson’s “precarious” financial situation following a divorce. Further, Burleson alleged that the Chief was aware that Burleson would have even less time with his three young children under this new shift schedule. Bennight and Burleson also filed grievances, which were denied by the College.

The College argued that the above-described personnel decisions, i.e., issuing a “coaching form” and making schedule changes, were not adverse personnel actions as defined by the Act. However, the court of appeals disagreed. The court of appeals looked at the specific facts underlying the personnel actions concerning the officers. Regarding Mark, the court of appeals found that even though the “employee coaching form” stated that it was not a “formal disciplinary action,” it also warned of possible termination and “was unreasonable in a number of respects.” The court of appeals also stated that “a schedule change that affected an employee’s ability to earn extra income in other part-time jobs, and that affected the employee’s ability to spend time with his children, could constitute an adverse personnel action.”

The case is not over. The court of appeals reversed the trial court’s decision to grant the College’s plea to the jurisdiction and remanded the case back to the trial court for further proceedings.  The College will now have additional opportunities to prove its claims to the trial court.

What are the consequences for taking adverse personnel action against a whistleblower?

A plaintiff is entitled to sue for: (1) injunctive relief; (2) actual damages; (3) court costs; and (4) reasonable attorney fees. Further, a plaintiff who was suspended or terminated in violation of the Act is entitled to: (1) reinstatement to his former position or an equivalent one; (2) lost wages; and (3) reinstatement of fringe benefits and seniority rights.

If you or your staff have questions about taking personnel action against an employee who claims to be a whistleblower, or how to respond to a grievance filed by an employee who asserts whistleblower protection, or you would like training related to these issues, the attorneys at Leasor Crass stand ready to assist.