Evidence that a decisionmaker knew about the report of illegal activity is required to prove a Whistleblower retaliation claim.

Special contributing author Laura Mueller, City Attorney for Dripping Springs

Houston Community College v. Sabrina Lewis, No. 01-19-00626-CV (Tex. App.—Houston [1st Dist.], June 29, 2021) (mem. op.).

In this appeal from a trial court’s holding denying the college’s plea to the jurisdiction on racial discrimination claim and Whistleblower claim, the First District Court of Appeals reversed the trial court’s judgment and dismissed the case because the plaintiff provided insufficient evidence of discriminatory intent in her termination and failed to provide evidence of causation related to the Whistleblower retaliation claim because the individuals responsible for her termination did not have knowledge of her report of alleged illegal activity before her termination.

The plaintiff sued the college after she was terminated for cause from her employment.  The plaintiff was the Director of Veterans Affairs Department for the college and is an African-American woman.  The plaintiff argued that she was terminated either due to her race or because she made a report of illegal activity to the state and federal Veterans Affairs agencies.  The plaintiff sued the college for racial discrimination and Whistleblower retaliation.  The college argued that there was insufficient evidence of racial discrimination because she was replaced by an African-American and there was no showing she was treated differently than other similarly situated employees.  The college also argued that the plaintiff could not prove causation under the Whistleblower claim because there was no evidence that the individuals involved in the termination knew of the report of illegal activity.  The trial court denied the college’s plea to the jurisdiction related to the claim and the college appealed.

To establish a prima facie case of race discrimination, a plaintiff must show that the plaintiff: (1) is a member of a protected class, (2) was qualified for their position, (3) suffered an adverse employment action, and (4) that others similarly situated were treated more favorably than the plaintiff or the plaintiff was replaced by someone who is not in the same protected class. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142 (2000).  The plaintiff, in this case, failed to establish that her termination was based on any discriminatory intent.  Evidence that a subordinate employee had made a derogatory remark was insufficient to show discriminatory intent and the employer established reasonable bases for the plaintiff’s termination. Also, her replacement was also African-American.

To establish a claim under the Whistleblower Act, an employee must establish that but for a good faith report of illegal activity, the employer would not have taken an adverse employment action against the employee.  Office of Att’y Gen. v. Rodriguez, 605 S.W.3d 183, 192 (Tex. 2020).  The plaintiff failed to produce evidence that the individuals responsible for her termination knew about her report of illegal activity to the Veterans organizations at the state and federal level.  This failure meant the causation prong of Whistleblower claims was not met.  The court discussed without deciding whether or not the “conduit” or “cat’s paw” theory of liability could be extended to Whistleblower retaliation claims.

The court of appeals reversed the trial court’s denial of the college’s plea to the jurisdiction and dismissed the case because insufficient evidence of either claim was provided.

If you would like to read this opinion click here.   Panel consists of Chief Justice Radack and Justices Kelly and Rivas-Molloy.  Opinion by Justice Veronica Rivas-Molloy.