Thank You For Reporting Illegal Conduct: You’re Fired!

Recently, the Texas Supreme Court decided a case originating from El Paso, reminding us that whistleblowers in Texas still face difficult challenges in receiving protections from retaliation.

In Canutillo I.S.D. v. Farran, the Plaintiff complained about employee theft and falsification of time cards, overpayment to a contractor, and the unlawful disposal of waste by the same contractor.    These complaints were lodged to the district’s superintendent, assistant superintendent, internal auditor and school board.  One school board member allegedly warned Farran that his job would be in jeopardy if the complaints against the contractor continued.   A few short months after making these complaints, Farran was suspended, and his employment was later terminated.

Farran filed a whistleblower’s lawsuit.   At issue was whether he reported the alleged violations to “an appropriate law enforcement agency,” which is required under the whistleblower statute.   Farran did not complain to any traditional law enforcement agencies (e.g. police, FBI, etc.) before his suspension, but argued that he had a good faith belief that district officials could regulate or enforce the laws that were allegedly violated.    Among other things, he asserted that the duties of the internal auditor included investigating employee fraud.   The Texas Supreme Court disagreed and dismissed the case, holding that internal complaints to persons who are only responsible for internal compliance of laws were not sufficient.

While the pro-employer Texas Supreme Court’s decision was not surprising, it was nonetheless disheartening.  Employees are trained to use the human resources department or their chain of command when voicing complaints.   Following this protocol, however, will not protect employees against retaliation.      Sadly, a little more than two months after deciding the Farran case, the Texas Supreme Court dismissed another whistleblower claim from another school district employee in El Paso for her failure to report hazardous working conditions to “an appropriate law enforcement agency.”

Last year Texas State Sen. Jose Rodriguez introduced legislation that would amend the state whistleblower law to include protections for school district employees who report illegal conduct to supervisors or human resources officials.   The legislation passed in the senate, but has yet to pass the house.   Until the Texas legislature amends this law, or courts begin to broadly interpret its language to serve its intended purpose – protecting whistleblowers, the Texas Whistleblower’s statute will continue to be a law with no teeth.

“Some things you must always be unable to bear. Some things you must never stop refusing to bear. Injustice and outrage and dishonor and shame. No matter how young you are or how old you have got. Not for kudos and not for cash: your picture in the paper nor money in the back either.   Just refuse to bear them.”

–  William Faulkner, Intruder in the Dust

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John Wenke is an Employment Law Attorney practicing in the area of employment discrimination, wrongful termination, retaliation, and sexual harassment. Mr. Wenke represents employees in Texas and New Mexico, including but not limited to El Paso,  Las Cruces, Alamogordo, Pecos, Marfa, Alpine, Presidio, and Del Rio.