Whistleblower jury award upheld by 14th Court of Appeals

Alief Independent School District, Dan Turner and Henry Bonaparte v. Troy Perry, 14-12-00532-CV (Tex. App. – Houston [14th Dist.] October 31, 2013).

This is a Texas Whistleblower Act suit where Plaintiff Perry was a “gang officer” for Alief ISD police force. Perry received a performance evaluation indicating he “m[et] expectations.” However, after two weeks he was put on a “growth plan” and demoted to patrol officer. Perry asserts he was disciplined for giving a ticket to a teacher, then reporting its removal by a supervisor to the District Attorney’s office.  Perry continued to file grievances and was eventually terminated. The PD asserted it received several complaints from multiple campus principals regarding the way Perry dealt with students as well as several listed policy violations.

Perry sued for violations of the Texas Whistleblower Act, and the First and Fourteenth Amendments (including suits against the individual supervisors). One of the supervisors (Turner) was subsequently indicted but acquitted for giving a false statement to a peace officer. This is only significant since it causes several witnesses to claim their Fifth Amendment rights against self-incrimination during the discovery. The jury found for Perry against AISD and two of the supervisors.  After numerous interlocutory appeals and case history, the jury award for Perry was appealed by the defendants to the 14th District Court of Appeals which affirmed the judgment.

Without going into lengthy details about the analysis, the main points to take away from this case are 1) to be successful, there must be some evidence the final decision maker knew of the whistleblower’s report – which can be established through inconsistent testimony of knowledge; 2) by claiming 5th Amendment protection, the individual defendant could be precluded from testifying in his own defense at trial; 3) individual defendants (under constitutional claims) can be jointly and severally liable for amounts beyond the statutory cap under the Whistleblower Act; and 4) Attorneys are not required to keep separate records documenting the exact amount of time working on one recoverable claim versus an unrecoverable claim as long as some percentage calculation is used. The jury award was affirmed in all things.

If you would like to read this opinion click here.