City initiated termination procedure by suspending employee, so no causal link for report made after suspension but before termination letter

David Jones v. City of Port Arthur, Texas, 09-14-00442-CV (Tex. App— Beaumont, November 17,2016)

Jones was employed as an operator of a residential garbage truck with the City of Port Arthur. After he was terminated he sued under the Texas Whistleblower Act. Essentially, Jones reported his truck was leaking potentially flammable hydraulic fluid to the City’s Public Works Department and the Solid Waste Management Division Superintendent.  However, he was told the leak was not a problem, the minor repair fixed it and he needed to drive the truck.  He refused, asserting the truck was unsafe to operate on the roadway. He was suspended until his ultimate termination. Jones asserts that during his suspension he reported the violation to OSHA and TCEQ.  The trial court granted the City’s plea to the jurisdiction and motions for summary judgment. Jones appealed.

To be a “good faith” report, an employee must not just believe the entity was an appropriate law enforcement authority under the Act, but his belief must be “reasonable in light of the employee’s training and experience.” He must show that a reasonably prudent public employee in similar circumstances would have believed he had made the report to an appropriate authority and that the report was a violation of law. Jones testified he had obtained two associates degrees, one in management development and the other in process technology. He served in the United States Marine Corps and was assigned to a supply unit.  He does not have training as a mechanic. The court held Jones failed to present evidence that it was reasonable, in light of his training and experience and the circumstances presented, for him to believe the conduct he reported was a violation of the law.  The court held his report to the City Manager did not qualify and neither did any of the internal reports made to different departments. Even if a report is made in good faith, there must be a causal link. The plaintiff must show that the person who took the adverse employment action knew of the employee’s report of illegal conduct. Both reports to outside agencies were made after his supervisor send Jones home indefinitely and initiated termination proceedings. The start of the adverse action was the indefinite suspension, not the final date the termination letter was signed.   Further, no evidence exists the decision maker was aware of the complaints to OSHA or TCEQ prior to the termination letter. As a result, no causal connection exists.

If you would like to read this opinion click here. The Panel includes Chief Justice McKeithen, Justice Kreger, and Justice Horton. Justice Kreger delivered the opinion of the court.  Attorney listed for Jones is Stephen P. Webb. Attorney for the City is listed as Frank D. Calvert.