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If you want to have a valid whistleblower claim you better make sure that your supervisor knows not only that you disagree with the illegal activity but also knows you reported the illegal activity to the appropriate law enforcement agency.

Written by Mr. Roger Davie on Wednesday, 30 Nov 2016.

I have written at length about the Texas Whistleblower Act and that you must be a government employee who reported illegal activity to an appropriate law enforcement agency: (1. http://rogerdavie.com/news/whistleblowing-is-not-p....; http://rogerdavie.com/news/before-filing-a-whistle...; 2. http://rogerdavie.com/news/the-courts-hold-that-yo...; 3. http://rogerdavie.com/news/before-filing-a-whistle...  

However there is one more issue dealing with retaliation and that is evidence of a decision-maker’s knowledge of an employee’s protected conduct. The case of  City of Killeen v. Gonzales, 2015 WL 6830599 (Tex. App.— Austin 2015) , deals with the sufficiency of circumstantial evidence of retalitory knowledge. The employee in Gonzales offered evidence that the decision-maker was aware of the employee’s concerns about illegal conduct, because the employee expressed these concerns directly to the decision maker, and the decision-maker responded angrily. However, the employee had little evidence that the decision-maker was aware that the employee had taken a step further by conveying her concerns to the chief of police (the alleged “appropriate law enforcement authority”). The fact that the decision-maker and the chief “had regular, ongoing and sometimes daily interactions” was insufficient evidence that the decision-maker learned of the employee’s report to the chief. This case suggests it is the decision-maker’s knowledge of the actual report to law enforcement authority, and not of the whistleblower’s expression of concern, that counts most.

I find this opinion very disconcerting because I believe that the intent of the statute is to protect those who express concerns about illegal activity and report that activity to law enforcement.  I certainly believe there was sufficient circumstantial evidence to prove that the supervisor knew that the employee had or probably had reported the illegal activity.  Anyway as a board certified El Paso employment lawyer I would certainly suggest that any employee who wants to protect themselves should make absolutely certain that they document to the supervisor that they have reported the illegal activity to the appropriate law enforcement agency.  Again, seek out an attorney as soon as possible.  It is clear from these cases that the courts are doing everything they can and every technicality they can to rule against wrongfully terminated government employees who file whistleblower actions in Texas. 

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