Articles By Bob Gorsky THE TEXAS WHISTLEBLOWER ACT: WHAT IS AN “ADVERSE ACTION”? Most law enforcement officers and a few lawyers have heard of The Texas Whistleblower Act. The Act makes it illegal for a state or local government to take an adverse personnel action against an employee who makes a good faith report of a violation of the law, to an appropriate law enforcement authority. The Act does not define the term “adverse personnel action.” But on November 30, 2007 the Texas Supreme Court issued an opinion in a case out of Montgomery County articulating the test for determining whether an employer’s action toward a whistleblowing employee is “adverse”. Lt. David Park, of the Montgomery County Sheriff’s Department, served as a security coordinator for Montgomery County Convention Center events. He conducted these duties during business hours but received no additional compensation. In 2002 he reported that County Commissioner Ed Rhinehart made graphic sexual remarks concerning Parks’ administrative assistant and another administrative assistant. This report was made to the Sheriff. Parks’ assistants later reported the commissioner’s sexual harassment on other occasions. The County conducted an investigation during which the accused commissioner ordered the convention center’s director to remove Park from his security coordinator duties. Citing a 2006 United States Supreme Court Title VII civil rights case decision where “adverse action” was defined, the Texas Supreme Court adopted the Burlington N. & Santa Fe Ry. Co. vs. White standard, with some modifications, by holding that a “personnel action is adverse within the meaning of The Whistleblower Act if it would be likely to dissuade a reasonable, similarly situated action from making a report under the Act”. As a result, each case will be viewed under this standard. An example given in Burlington and repeated by the Texas Supreme Court is that a schedule change may not be harmful to one employee but it may be very important to an employee who is a young mother with small children. The Texas Supreme Court held that after applying the above standard, Park’s “punishment” was not adverse. Park received no salary, so no money was lost and he claimed no loss of the benefits or employment or damage to his reputation. Park’s only loss (the first choice of convention center jobs) was not, as a matter of law, likely to deter a similarly situated employee from reporting a violation of law. Therefore, the action taken against him did not violate the Texas Whistleblower Act. Although Park lost his case, the case serves to define an important element of the statute. The Park ruling should benefit others who are the victims of whistleblower retaliation. ______________________________________________________________ Bob Gorsky is a partner at the Dallas law firm of Lyon, Gorsky, Haring & Gilbert, L.L.P., 3131 McKinney Avenue, Suite 100, Dallas, Texas 75204; 214/965-0090, website: lyongorsky.com or email Bob at bgorsky@LyonGorsky.com. _______________________________________________________________ |