WHISTLEBLOWER AND OTHER RETALIATION CLAIMS

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1 WHISTLEBLOWER AND OTHER RETALIATION CLAIMS JASON C.N. SMITH Law Offices of Art Brender 600 Eighth Avenue Fort Worth, Texas State Bar of Texas 25 TH ANNUAL SUING & DEFENDING GOVERNMENTAL ENTITIES COURSE July 18-19, 2013 Austin CHAPTER 17

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3 JASON C.N. SMITH Law Offices of Art Brender 600 Eighth Avenue Fort Worth, Texas FAX: Facebook: JASONCNSMITH, ATTORNEY AT WORK BIOGRAPHICAL INFORMATION EDUCATION J.D., Texas Tech, with honors, 1992 B.A. In Political Science, with high honors, Saint Mary s University of San Antonio, 1989 PROFESSIONAL ACTIVITIES Attorney, Law Offices of Art Brender, 1997-present Briefing Attorney, Texas Supreme Court Justice Jack Hightower, Board Certified, Civil Appellate Law, 1997-present American Board of Trial Advocates President, Tarrant County Bar Association Labor and Employment Association, President, Tarrant County Trial Lawyers Association, 2011 Master, Eldon B. Mahon Inn of Court NOTABLE CASES Scoresby v. Santillan, 346 S.W.3d 546 (Tex. 2011) City of Fort Worth, Texas v. Shilling, 266 S.W.3d 97 (Tex. App. -- Fort Worth 2008, no pet.) City of Fort Worth v. DeOreo, 114 S.W.3d 664 (Tex. App. -- Fort Worth, 2003, no pet.) Rogers v. City of Fort Worth, 89 S.W.3d. 265 (Tex. App. -- Fort Worth 2002, no pet.) State Farm v. Keegan, 209 F.3d 767 (5th Cir. 2000)

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5 TABLE OF CONTENTS I. OVERVIEW OF THE WHISTLEBLOWER ACT... 1 II. PROTECTED REPORTS AND GOOD FAITH... 1 III. ADVERSE PERSONNEL ACTION... 1 IV. CAUSATION... 2 V. RELIEF AVAILABLE TO WHISTLEBLOWERS... 2 VI. AFFIRMATIVE DEFENSE: "WE WOULD HAVE FIRED THEM ANYWAY"... 3 VII. LIMITATIONS AND INITIATING GRIEVANCES AND APPEALS... 3 VIII. IX. VENUE: WHISTLEBLOWER NOT FORCED TO SUE IN THE GOVERNMENT S OWN BACK YARD... 4 DEVELOPMENTS IN OTHER RETALIATION CLAIMS INVOLVING POLITICAL SUBDIVISIONS: WORKER S COMPENSATION RETALIATION... 5 i

6 CASES TABLE OF AUTHORITIES American Motorist Insurance Co. v. Fodge, 63 S.W.3d 801, 805 (Tex. 2001)... 4 Beiser v. Tomball Hosp. Auth., 902 S.W.2d 721, 724 (Tex. App. --Houston [1st Dist.] 1995, writ denied)... 4 Burlington Northern & Santa Fe Railway Company v. White, 126 S.Ct. 2405, , 165 L.Ed.2d 345, 2006 U.S. LEXIS 4895 (2006)... 2 Castaneda v. Texas Dep't of Agriculture, 831 S.W.2d 501, 505 (Tex. App. -- Corpus Christi 1992, writ denied)... 2 City of El Paso v. Parsons, 353 S.W.3d 215, 227 (Tex. App. El Paso 2011, no pet.)... 2 City of Elsa v. Gonzalez, 325 S.W.3 rd 622, 627 n. 3 (Tex. 2010)... 1 City of Fort Worth v. DeOreo, 114 S.W.3 rd 564, 669 (Tex. App. Fort Worth 2003, no pet.)... 1 City of Fort Worth v. Shilling, 266 S.W.3d 102 (Tex. App. Fort Worth 2008)... 3 City of Fort Worth v. Zimlich, 29 S.W.3d 62, 67 (Tex. 2000)... 1, 2 City of Houston v. Cotton, 31 S.W.3d 823, 825 (Tex. App. -- Houston [1 st Dist.] 2000, pet. denied)... 4 City of Houston v. Kallina, 97 S.W.3d 170, 172 (Tex. App. -- Houston [14th Dist.] 2002, pet. denied)... 4 City of Ingleside v. Kneuper, 768 S.W.2d 451, 457 (Tex. App. Austin 1989, writ denied)... 4 City of Laporte v. Barfield, 898 S.W.2nd 288, 292 (Tex. 1995)... 5 City of New Braunfels v. Allen, 132 S.W.3d 157, 161 (Tex. App. -- Austin 2004, no pet.)... 3 City of San Antonio v. Heim, 932 S.W.2d 287, 290 (Tex. App. -- Austin 1996, writ denied)... 1 Comptroller of Public Accounts v. Saito, 372 S.W.3d 311, 315 (Tex. App. Dallas 2012, pet. denied)... 5 Continental Coffee Products Co. v. Cazarez, 937 S.W.2d 444, 450 (Tex. 1996)... 2 Dallas Area Rapid Transit v. Carr, 309 S.W.3d 174, 177 (Tex. App. Dallas 2010, pet. denied)... 1 Dallas County v. Gonzales, 183 S.W.3d 94, 102 (Tex. App. -- Dallas 2006, pet. denied)... 4 Department of Human Services v. Hinds, 904 S.W.2d 629, 634 (Tex. 1995)... 2 Fort Bend I.S.D. v. Gayle, 371 S.W.3 rd 391, (Tex. App. Houstin [1 st Dist.] 2012, pet. denied)... 4 Fort Bend I.S.D. v. Rivera, 93 S.W.3d 315, 318 (Tex. App. -- Houston [14th Dist.] 2002, no pet.)... 4 Gregg County v. Farrar, 933 S.W.2d 769, 775 (Tex. App. -- Austin 1996, writ denied)... 1 In re Tarrant County, 345 S.W.3d 784 (Tex. App. Dallas 2011)(orig. proceeding)... 5 Kerville State Hosp. v. Fernandez, 28 S.W.3d 1 (Tex. 2000)... 5 Lubbock County v. Strube, 953 S.W.2d 847, 854 (Tex. App. --Austin 1997, pet. denied)... 2 Montgomery County v. Park, 246 S.W.3d 610 (Tex. 2007)... 2 Moore v. Univ. of Houston at Clear Lake, 165 S.W.3d 97, 102 (Tex. App. -- Houston [14 th Dist.] 2005, no pet.)... 3 ii

7 Rogers v. City of Fort Worth, 89 S.W.3d 265, (Tex. App. -- Fort Worth 2002, no pet.)... 2 State v. Lueck, 290 S.W.3d 876, 881 (Tex. 2009)... 1 Steele v. City of Southlake, 370 S.W.3d 105, 118 (Tex. App. Fort Worth 2012, no pet.)... 3 Tarrant County v. McQuary, 310 S.W.3d 170 (Tex. App. Fort Worth 2010, pet. denied)... 4 Tex. Dept. of Transp. V. Needham, 82 S.W.3d 314, 321 (Tex. 2002)... 1 Texas Board of Pardons and Paroles v. Feinblatt, 82 S.W.3d 513, (Tex. App. -- Austin 2002, pet. denied)... 4 Texas Dep't of Human Servs. v. Green, 855 S.W.2d 136, 146 (Tex. App. -- Austin 1993, writ denied)... 2 Texas Dept. of Public Safety v. Williams, 2010 WL , *5 (Tex. App. -- Austin Feb 19, 2010)... 2 Texas Parks & Wildlife Dept. v. Flores, 2012 WL (Tex. App. Austin 2012, pet. denied)... 5 Thornbrough v. Columbus & Greenville Ry. Co., 760 F.2d 633, 638 n.1 (5th Cir. 1985)... 2 Travis Cent. Appraisal Dist. v. Norman, 342 S.W.3d 54, 59 (Tex. 2011)... 5 University of Texas Medical Branch at Galveston v. Barrett, 159 S.W.3d 631, 632 (Tex. 2005)... 3 University of Texas Medical Branch at Galveston v. Homan, 6 S.W.3d 767 (Tex. App.--Houston [1st. Dist.] 1999, pet. denied)... 4 University of Texas Southwestern Medical Center at Dallas v. Gentiello, 398 S.W.3d 680, (Tex. 2013)... 1 Wichita County v. Hart, 917 S.W.2d 779, 784 (Tex. 1996)... 1 STATUTES TEX. GOV. T CODE (b)... 1 TEX. GOV. T CODE (a-b)... 2 TEX. GOV. T CODE (c)... 3 TEX. GOV. T CODE TEX. GOV. T CODE (b)... 3 TEX. GOV. T CODE TEX. GOV T CODE (1)... 1 TEX. GOV T CODE (b)... 4 TEX. GOV T CODE (b)... 4 TEX. GOV'T CODE TEX. GOV'T CODE TEX. GOVT. CODE (a)... 1 TEX. LABOR CODE iii

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9 WHISTLEBLOWER AND OTHER RETAILAITON CLAIMS I. OVERVIEW OF THE WHISTLEBLOWER ACT The recent controversy involving Eric Snowden disclosing the government s collection of personal information including phone records, social media, and other information has brought to the forefront whistleblowers, the good they do society and the protection they should receive. The Texas Legislature has sought to give whistleblowers in state and local government protection from retaliation. "[T]he Whistleblower Act has a two fold purpose: (1) protecting the public employees from retaliation by their employer when, in good faith, the employee reports a violation of law; and (2) securing lawful conduct on the part of those who direct and conduct the affairs of public bodies." Gregg County v. Farrar, 933 S.W.2d 769, 775 (Tex. App. -- Austin 1996, writ denied). Section of the Texas Whistleblower Act provides that "[a] state or local governmental entity may not suspend or terminate the employment of, or take other adverse personnel action against, a public employee, who in good faith reports a violation of law by the employing governmental entity or another public employee to an appropriate law enforcement authority." TEX. GOVT. CODE (a); City of Fort Worth v. Zimlich, 29 S.W.3d 62, 67 (Tex. 2000). The elements of an action under the Texas Whistleblower Act are: (1) a public employee; (2) makes a report of a violation of law; (3) in good faith; (4) to an appropriate law enforcement entity; and (5) suffers retaliation as a result. City of San Antonio v. Heim, 932 S.W.2d 287, 290 (Tex. App. -- Austin 1996, writ denied). The elements of a claim under the Whistleblower Act are jurisdictional and cannot be waived. State v. Lueck, 290 S.W.3d 876, 881 (Tex. 2009). Thus, a ruling on a plea to the jurisdiction challenging the elements of a claim under the Whistleblower Act may be subject to review by interlocutory appeal. TEX. GOV. T CODE II. PROTECTED REPORTS AND GOOD FAITH A public employee is protected if they report a violation of law in good faith. TEX. GOV. T CODE (a). A law is defined as a federal or state statute, an ordinance of a local governmental entity or a rule adopted under statute or ordinance. TEX. GOV T CODE (1). The Texas Supreme Court has defined "good faith" with regard to whether a public employee violated the law to mean: (1) the employee believes that conduct reported was a violation of law, and (2) the employee's belief was reasonable in light of the employee's training and experience. Wichita County v. Hart, 917 S.W.2d 779, 784 (Tex. 1996). An employee need not establish an actual violation of law occurred. City of Elsa v. Gonzalez, 325 S.W.3d 622, 627 n. 3 (Tex. 2010); Dallas Area Rapid Transit v. Carr, 309 S.W.3d 174, 177 (Tex. App. Dallas 2010, pet. denied). Rather, an employee only needs to show that she made the report in good faith. A report must be made to an entity a public employee believes is an appropriate law enforcement authority, even if it is not. TEX. GOV. T CODE (a). A law enforcement entity may be a federal state or local that can regulate or enforce a law or investigate and prosecute a violation of criminal law. TEX. GOV. T CODE (b). Lodging a complaint to an internal authority whom one understands to be only charged with internal compliance is not an appropriate law enforcement authority. University of Texas Southwestern Medical Center at Dallas v. Gentiello, 398 S.W.3d 680, (Tex. 2013); but see City of Fort Worth v. DeOreo, 114 S.W.3d 564, 669 (Tex. App. Fort Worth 2003, no pet.)(police officer s report of conduct of co-employee that violated Penal Code to her employer was report to appropriate law enforcement entity). The Texas Supreme Court has defined "good faith" with regard to whether a public employee made a report to an appropriate law enforcement agency as: (a) the employee believed the governmental entity was authorized to regulate under or enforce the law alleged to be violated in the report or investigate/prosecute a violation of criminal law; and (b) the employee s belief was reasonable in light of the employees training and experience. Tex. Dept. of Transp. v. Needham, 82 S.W.3d 314, 321 (Tex. 2002). III. ADVERSE PERSONNEL ACTION In order to be actionable, a public employee must demonstrate he has been subjected to an adverse personnel action, such as terminations and other actions. A transfer? An adverse review? The Texas Supreme Court has announced the standard for determining adverse personnel actions under the Whistleblower Act: 1

10 We hold that a personnel action is adverse within the meaning of the Whistleblower Act if it would be likely to dissuade a reasonable, similarly situated worker from making a report under the Act. This objective test strikes an appropriate balance between the need to shield whistleblowers (and thereby encourage the reporting of governmental lawbreaking) and the need to protect government employers from baseless suits, and, in addition, provides lower courts with a judicially manageable standard. Montgomery County v. Park, 246 S.W.3d 610 (Tex. 2007). In Montgomery County, the Texas Supreme Court adopted the standard used by the United State Supreme Court to determine what retaliatory actions were actionable under Title VII as announced in Burlington Northern & Santa Fe Railway Company v. White, 126 S.Ct. 2405, , 165 L.Ed.2d 345, 2006 U.S. LEXIS 4895 (2006). The Texas Supreme Court noted that Burlington's materiality requirement is calibrated to allow claims of retaliatory actions "likely to deter" reporting of governmental violations of law, but to weed out "petty slights [and] minor annoyances." Montgomery County citing Burlington Northern, 126 S.Ct. 2405, , 165 L.Ed.2d 345, 2006 U.S. LEXIS 4895 (2006). The Texas Supreme Court suggested that an employment action constituted an adverse personnel action if it affected an employee's prestige, opportunity for advancement in the department or the difficulty of work conditions. Montgomery County, 246 S.W.3d at 613 citing Burlington Northern, 126 S.Ct. 2405, , 165 L.Ed.2d 345, 2006 U.S. LEXIS 4895 (2006). Applying this standard, several Texas Courts of Appeal have held non-ultimate actions such as a reassignment could constitute an adverse personnel action See, e.g., City of El Paso v. Parsons, 353 S.W.3d 215, 227 (Tex. App. El Paso 2011, no pet.) (reassignment could be adverse personnel action); Texas Dept. of Public Safety v. Williams, 2010 WL , *5 (Tex. App. -- Austin Feb 19, 2010)(loss of overtime as a result of a transfer could be adverse personnel action). But see Duran v. Fort Worth I.S.D., 2008 WL (Tex. App. Fort Worth 2008, pet. denied)(transfer with no cut in pay did not constitute adverse personnel action). 2 IV. CAUSATION [T]he Whistleblower Act does not require an employee to prove that his reporting illegal conduct was the sole reason for his termination. Department of Human Services v. Hinds, 904 S.W.2d 629, 634 (Tex. 1995). The standard of causation in whistleblower cases requires that the employee's protected conduct must be such that, without it, the employer's prohibited conduct would not have occurred when it did. 904 S.W.2d at 636. Because often in employment cases there is no direct evidence of wrongdoing, culpability frequently must be inferred from circumstantial evidence. See Lubbock County v. Strube, 953 S.W.2d 847, 854 (Tex. App. --Austin 1997, pet. denied); Castaneda v. Texas Dep't of Agriculture, 831 S.W.2d 501, 505 (Tex. App. - - Corpus Christi 1992, writ denied); see also Thornbrough v. Columbus & Greenville Ry. Co., 760 F.2d 633, 638 n.1 (5th Cir. 1985). Indeed, a series of acts by an employer can sufficiently raise inferences to overcome legal and factual sufficiency challenges. Strube, 953 S.W.2d at 854 (citing, Texas Dep't of Human Servs. v. Green, 855 S.W.2d 136, 146 (Tex. App. -- Austin 1993, writ denied)). "Circumstantial evidence may be sufficient to establish a casual link between the adverse employment action and the reporting of illegal conduct." City of Fort Worth v. Zimlich, 29 S.W.3d at 69, citing Continental Coffee Products Co. v. Cazarez, 937 S.W.2d 444, 450 (Tex. 1996). "Such evidence includes: 1) knowledge of the report of illegal conduct; 2) expression of a negative attitude toward the employee's report of the conduct; 3) failure to adhere to established company policies regarding company decisions; 4) discriminatory treatment in comparison to similarly situated employees; and 5) evidence that the stated reason for the adverse employment action was false." Zimlich, 29 S.W.3d at 69. Timing of an adverse action shortly after a protected report is also some evidence linking a protected report to an adverse personnel action. Rogers v. City of Fort Worth, 89 S.W.3d 265, (Tex. App. -- Fort Worth 2002, no pet.). Falsity. Hostility. Knowledge of the report. Violating policy. Discriminatory treatment. Timing. V. RELIEF AVAILABLE TO WHISTLEBLOWERS Under the Texas Whistleblower Act, an aggrieved employee may obtain injunctive relief, reinstatement, actual damages and attorney s fees. TEX. GOV. T CODE (a-b). Compensatory damages are capped from a range that stretches from $50,000 to $250,000, depending on the number of

11 employees of the governmental entity in question. TEX. GOV. T CODE (c). Sovereign immunity is waived an abolished to the extent of liability allowed under the Whistleblower Act. TEX. GOV. T CODE VI. AFFIRMATIVE DEFENSE: WE WOULD HAVE FIRED THEM ANYWAY If a public entity can prove that it would have taken the adverse personnel action solely on a basis that is independent of the fact of any whistleblower activity. TEX. GOV. T CODE (b); Steele v. City of Southlake, 370 S.W.3d 105, 118 (Tex. App. -- Fort Worth 2012, no pet.). VII. LIMITATIONS AND INITIATING GRIEVANCES AND APPEALS The Whistleblower Act requires public employees to initiate a grievance or appeal if such is available. The idea is that maybe the dispute will be resolved without the need for litigation. Much litigation in whistleblower cases focuses on whether a public employee properly initiated or pursued for a long enough duration a grievance or appeal. These technical rules can be tricky. Section of the Texas Whistleblower Act provides that: LIMITATIONS PERIOD Except as provided by Section , a public employee who seeks relief under this chapter must sue not later then the 90 th day after the date on which the alleged violation of this chapter: (1) occurred; or (2) was discovered by the employee through reasonable diligence. TEX. GOV'T CODE Furthermore, section of the Texas Whistleblower Act provides: USE OF GRIEVANCE OR APPEAL PROCEDURES (a) A public employee must initiate action under the grievance or appeal procedures of the employing state or local governmental entity relating to suspension or termination of employment or adverse personnel action before suing under this chapter. (b) The employee must invoke the applicable grievance or 3 appeal procedures not later than the 90 th day after the date on which the alleged violation of this chapter: (1) occurred; or (2) was discovered by the employee through reasonable diligence. (c) Time used by the employee in acting under the grievance or appeal procedures is excluded, except as provided by Subsection (d), from the period established by Section (d) If a final decision is not rendered before the 61 st day after the date procedures are initiated under Subsection (a), the employee may elect to: (1) exhaust the applicable procedures under Subsection (a), in which event the employee must sue not later than the 30 th day after the day those procedures are exhausted to obtain relief under this chapter; or (2) terminate procedures under Subsection (a), in which event the employee must sue within the time remaining under Section to obtain relief under this chapter. TEX. GOV'T CODE Whistleblower claims have a short 90 statute of limitations. This limitations period is tolled during the pursuit of a grievance or appeal. Section "requires that such procedures be timely initiated and that the grievance or appeal authority have sixty (60) days to render a final decision." University of Texas Medical Branch at Galveston v. Barrett, 159 S.W.3d 631, 632 (Tex. 2005). While the Whistleblower Act does not dictate what actions are required to initiate the appeals procedure, the Act is remedial in nature and should be liberally construed to effectuate that purpose. City of Fort Worth v. Shilling, 266 S.W.3d 102 (Tex. App. Fort Worth 2008, no pet.); citing, Moore v. Univ. of Houston at Clear Lake, 165 S.W.3d 97, 102 (Tex. App. -- Houston [14 th Dist.] 2005, no pet.); City of New Braunfels v. Allen, 132 S.W.3d 157, 161 (Tex. App. -- Austin 2004, no pet.). The purpose of the requirement

12 of the Texas Whistleblower Act that an aggrieved employee initiate a grievance is to provide the employer an opportunity to correct its own errors by resolving disputes before being subjected to litigation. Fort Bend I.S.D. v. Rivera, 93 S.W.3d 315, 318 (Tex. App. -- Houston [14th Dist.] 2002, no pet.). If a public employee files suit prior to the expiration of the sixty day period, the Texas Supreme Court has held that abatement, rather than dismissal, is the appropriate response. "Whether the purpose of the requirements is... to allow an opportunity for resolution of disputes before going to court, or instead,... to deny a court jurisdiction over an action unless the requirements have been satisfied, the purpose is adequately protected by abating the prematurely filed action until the end of the sixty (60) day period provided that the procedures have been timely initiated and can continue for the required sixty (60) days or until a final decision is rendered, whichever occurs first." University of Texas Medical Branch at Galveston v. Barrett, 159 S.W.3d 631, 632 (Tex. 2005) citing, American Motorist Insurance Co. v. Fodge, 63 S.W.3d 801, 805 (Tex. 2001)("if the impediment to jurisdiction could be removed, then the court may abate proceedings to allow a reasonable opportunity for the jurisdictional problem to be cured."). At least one Court has held that abatement as provided by Barrett is the appropriate result even in light of the subsequent enactment of section of the Texas Government Code, which provides that immunity is not waived unless statutory prerequisites, like notice, are not satisfied. Fort Bend Indep. School Dist. v. Gayle, 371 S.W.3d 391 (Tex. App. Houston [1 st Dist.] 2012, pet. denied). When aggrieved employees timely notify the employer that they are invoking the grievance procedure, they have adequately implicated the grievance procedures. City of Houston v. Kallina, 97 S.W.3d 170, 172 (Tex. App. -- Houston [14th Dist.] 2002, pet. denied); University of Texas Medical Branch at Galveston v. Homan, 6 S.W.3d 767 (Tex. App.-- Houston [1st. Dist.] 1999, pet. denied). See also Beiser v. Tomball Hosp. Auth., 902 S.W.2d 721, 724 (Tex. App. --Houston [1st Dist.] 1995, writ denied). There is nothing more they are required to do under the Texas Whistleblower Act. Section expressly provides an employee 90 days to file a grievance, reasoning that a governmental entity cannot cut short by its own procedure the time a public employee has to seek relief. TEX. GOV T CODE (b); Texas Board of Pardons and Paroles v. Feinblatt, 82 S.W.3d 513, (Tex. App. -- Austin 2002, pet. denied)(public employer may not shorten the 90 day period provided by the Legislature to initiate a grievance); see also City of Houston v. Cotton, 31 S.W.3d 823, 825 (Tex. App. - - Houston [1 st Dist.] 2000, pet. denied); University of Texas Medical Branch at Galveston v. Homan, 6 S.W.3d 767 (Tex. App.--Houston [1st. Dist.] 1999, pet. denied). However, one Court has held that the Whistleblower Act requires the employee to at least put the governmental entity on notice that they are making a whistleblower claim to have properly initiated an appeal or grievance. Tarrant County v. McQuary, 310 S.W.3d 170 (Tex. App. Fort Worth 2010, pet. denied). An employee who initiates a grievance is not even required to participate in the grievance process once it is initiated. Fort Bend I.S.D. v. Gayle, 371 S.W.3d 391, (Tex. App. Houston [1 st Dist.] 2012, pet. denied). If the governmental entity addresses the grievance, by perhaps reinstating the employee, the employee s claim is not barred for actual damages not satisfied by the redress the government employer provided. Dallas County v. Gonzales, 183 S.W.3d 94, 102 (Tex. App. -- Dallas 2006, pet. denied); see also City of Ingleside v. Kneuper, 768 S.W.2d 451, 457 (Tex. App. Austin 1989, writ denied). Initiate a grievance or appeal pronto after a public employee suffers an adverse action. Let them know you think the adverse action was due to whistleblowing. Wait at least 60 days. But file suit within the extremely short limitations period. VIII. VENUE: WHISTLEBLOWER NOT FORCED TO SUE IN THE GOVERNMENT S OWN BACK YARD The Whistleblower Act venue provision reads as follows: A public employee of a local governmental entity may sue under this chapter in a district court of the county in which the cause of action arises or in a district court of any county in the same geographic area that has established with the county in which the cause of action arises a council of governments or other regional commission under Chapter 391, Local Government Code. TEX. GOV T CODE (b). The idea of this venue scheme is to allow the public employee to select a venue other than where the cause of action arose. Thus, venue against a state entity 4

13 is proper in the County where the cause of action arises or Travis County. Venue against local governmental entity is proper in the county where the cause of action arises or in any county in the Council of Government to which the local governmental entity belongs. For example, the City of Arlington is in Tarrant County and a member or the North Texas Council of Governments. Dallas County is also a member of the North Texas Council of Governments. Thus, a whistleblower suit against the City of Arlington may be filed in Dallas County. pet. denied); see also Comptroller of Public Accounts v. Saito, 372 S.W.3d 311, 315 (Tex. App. Dallas 2012, pet. denied). However, the Texas Supreme Court has yet to rule on such argument. However, one Court of Appeals has held that the Whistleblower Act does not trump a County s right to be sued in its own County under section of the Texas Civil Practice and Remedies Code. In re Tarrant County, 345 S.W.3d 784 (Tex. App. Dallas 2011)(orig. proceeding). IX. DEVELOPMENTS IN OTHER RETALIATION CLAIMS INVOLVING POLITICAL SUBDIVISIONS: WORKER S COMPENSATION RETALIATION Recently, the Texas Supreme Court has issued a series of decision that have essentially closed the door on worker s compensation retaliation claims for employees of political subdivisions. Texas law generally provides that an employee may not be terminated or otherwise discriminated against for filing a worker s compensation claim. TEX. LABOR CODE The Texas Supreme Court had held that sovereign immunity had been waived for worker s compensation retaliation claims against political subdivisions, City of Laporte v. Barfield, 898 S.W.2d 288, 292 (Tex. 1995). However, in Travis Cent. Appraisal Dist. v. Norman, 342 S.W.3d 54, 59 (Tex. 2011), the Texas Supreme Court concluded that a minor change in statutory language resulted in no longer waiving immunity for claims involving employment retaliation for filing a worker s compensation claims. In Kerville State Hosp. v. Fernandez, 28 S.W.3d 1 (Tex. 2000), the Texas Supreme Court held that immunity was waived for worker s compensation retaliation claims filed against state agencies. Some state agencies have asserted that immunity is no longer waived for these claims, citing Norman, without success. See, e.g., Texas Parks & Wildlife Dept. v. Flores, 2012 WL (Tex. App. Austin 2012, 5

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