Failure to give affirmative defense in jury instruction was harmful error in Whistleblower Case says Fort Worth Court of Appeals

Fort Worth Independent School District v. Joseph Palazzolo, 02-14-00262-CV (Tex. App– Fort Worth, July 7, 2016)

This is a Whistleblower case where the Fort Worth Court of Appeals reversed a jury award for the employee and ordered a new trial.

Palazzolo was an assistant principal at FWISD’s Arlington Heights High School (“AHHS”). Menchaca, the Director of FWISD’s Office of Professional Standards (“OPS”), initiated an investigation after receiving reports from several different sources, including Palazzolo, regarding alleged wrongful conduct at AHHS.  Palazzolo was responsible for receiving reports from staff of improper conduct and presenting them to OPS. Dr. Sylvia Reyna, FWISD’s Chief of Administration, began to assist Menchaca with the investigation. According to Dr. Reyna, “there had been some egregious mismanagement of the school.”  However, Dr. Reyna then submitted a report to FWISD’s Board of Education recommending that Palazzolo’s employment with FWISD be terminated for good cause based upon six grounds that were unrelated to his reports of wrongdoing at AHHS. The Board voted 6 to 3 to terminate Palazzolo’s employment.   Palazzolo brought suit under the Texas Whistleblower Act. A jury found in Palazzolo’s favor. It awarded him over $2,000,000. FWISD appealed.

FWISD’s primary argument is the trial court failed to issue a jury charge for the affirmative defense of termination for unrelated reasons consistent with Government Code 554.004(b).  The record showed FWISD filed a proposed jury charge before trial that contained a question in substantially correct form implicating the §554.004(b) affirmative defense, so it preserved error on the objection.  FWISD never made or tendered a written request for an instruction on its affirmative defense, only a written question. The distinction is significant for preservation purposes because an inferential rebuttal issue may only be submitted through a jury instruction and not as a question. However, the court held it could not agree with Palazzolo that the legislature intended §554.004(b) to operate as an inferential rebuttal issue. The legislature categorized the section as an affirmative defense, which is distinctly different than an inferential rebuttal issue for jury charge purposes. Under §554.004(b), FWISD had the burden to prove that it would have terminated Palazzalo based solely on information unrelated to his reports. But if it established the required elements, it is relieved of liability. The trial court is required to submit questions raised by the written pleadings and the evidence.  FWISD properly pled the affirmative defense and should have been given the opportunity to submit a question to the jury on its application. The best practical approach is to set out the defense in clear and conspicuous terms, leaving no doubt that the charge properly conveyed the defense for the jury’s consideration. Failure to provide the instruction and question was harmful error. However, the court refused to render in FWISD’s favor outright as it noted conflicting evidence existed in the record so the real question is one for the jury. The judgment was reversed and the case remanded for a new trial.

If you would like to read this opinion click here. Panel includes: Justice Dauphinot, Justice Meier, and Justice Suddderth. Opinion delivered by Justice Meier.  Attorney for Appellant: Thomas P. Brandt. Attorney for Appellee: Paul F Wieneskie.

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