Whistleblower Act—Evidence of Retaliatory Intent

Whistleblower Act—Evidence of Retaliatory Intent—Office of the Attorney General of Texas v. Rodriguez, ___ S.W.3d ___, 2017 WL 4586128 (Tex. App.—El Paso 2017)—The usual “whistleblower” involves an employee’s report implicating higher managers who then use their superior managerial power to retaliate against the whistleblower. In this case, however, the whistleblower reported her suspicion of a subordinate’s wrongdoing. When the employer agency subsequently disciplined and then terminated the whistleblower, the whistleblowing employee filed a grievance and then sued for retaliation. The court held: (1) a manager whose approval was necessary for disciplinary action recommended by another manager could be regarded as one of the final decision-makers for purposes of evaluating circumstantial evidence of illegal intent; (2) it was some evidence of illegal intent that a manager stated it was “odd” that the whistleblower took her concerns about her subordinate to higher manager without first addressing the issue directly with the wrongdoing subordinate; (3) it was some evidence of illegal intent that the employer violated its own policy by instructing the whistleblower to confront and discipline her wrongdoing subordinate despite an agency policy that a whistleblower is not required to confront a suspected wrongdoer directly; (4) the plaintiff and another employee with similar performance issues were “similarly situated” for purposes of comparative evidence of illegal intent, although they had different supervisors, because approval of discipline was by the same person; (5) for purposes of comparative evidence of discriminatory discipline, the compared employees’ misconduct must be of “comparable seriousness” but need not be precisely equivalent; (6) the employer’s inclusion of additional false charges against the whistleblower in its decision to discharge her was additional evidence of illegal intent.