Preventive Law
Preventive Law Corner - Schools Beware: Dinah’s probably going to be blowing her horn more often now!
By Dennis Eichelbaum - Schwartz & Eichelbaum P.C
Jan 11, 2008, 08:31

Schools Beware:  
Dinah’s probably going to be blowing her horn more often now!

Brace yourself.  At the end of November, the Texas Supreme Court ruled that a mere change in an employee’s schedule can constitute retaliation and an illegal adverse employment action under the Texas Whistleblower Act (“TWA”).[1] School districts have long understood that employees who report to an appropriate law enforcement authority what they in good faith believe to be a violation of law by the district or a district employee are protected against retaliation.  It has also long been understood that “retaliation” would have to be in the form of an “adverse employment action” (including but not limited to suspension or termination).

For years Courts have been asked to opine on how far “adverse employment action” extends.  Would they include reassignments or schedule changes?  What about administrative leave with pay?  Perhaps other actions such as a change of duties might be deemed “adverse” to the employee? Most courts have limited “adverse employment actions” to the definition found in the statute for “personnel action,” which included “an action that affects a public employee’s compensation, promotion, demotion, transfer, work assignment, or performance evaluation.” Tex. Gov’t Code § 554.001(3).

Taking its cue from the United States Supreme Court in Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. __ (2006), the Texas Supreme Court has blown the doors wide opened by adopting the Burlington standard “with appropriate modifications”:

a personnel action is adverse within the meaning of the Whistleblower Act if it would be likely to dissuade a reasonable, similarly situated worker from making a report under the Act.”  Montgomery Park, (Slip Opinion) at 5. 

This is what many lawyers would call (with a bit of sarcasm) an “objectively subjective standard.” Unfortunately each court differs on what a reasonable employee might fear. In other words, these cases may be determined by which way the wind blows in a particular court.

The decision becomes exponentially more worrisome when one notes that the court cites to Burlington’s example that “[a] schedule change in an employee’s work schedule may make little difference to many workers, but may matter enormously to a young mother with school age children.”  Montgomery County at 6. Now the courts look not simply to the “reasonable employee”, but possibly the “reasonable employee that is a mother with a six year old”? 

The Texas Supreme Court’s reliance on Burlington is most irresponsible because it analogizes whistleblowers to those discriminated against based upon a protected classification.  Title VII was passed to prohibit adverse employment decisions based upon race and other forms of discrimination.  Unlike claims of discrimination that are initiated based upon employer conduct, whistleblower claims are initiated by employee conduct.  An employee can simply make a report in order to create protected status, and an employer that decides that it is best to protect the employee from retaliation could choose to reassign the employee, yet then find themselves defending a retaliation suit wherein the employee claims “the reassignment was meant to dissuade my blowing the whistle because the school district reassigned me to another campus which is three miles further from my house, and I don’t like spending that much on gasoline.”

The bottom line with this case is that school districts will need to be meticulously scrupulous when changing any employment condition that might affect a “whistleblower.”  It is best to work through any employment actions in these situations with the district’s attorneys before implementing.  Remember, of course, that the District or administrator taking the action must actually KNOW that the person has made a good faith report of a violation to an appropriate law enforcement authority before a court will impose liability.  Nonetheless, under this new decision, Districts should expect more whistleblower claims that may be more difficult to get dismissed.

What's New

Legal Issues for Cheerleader & Drill Team Sponsors

Sessions January - February 2008

This information packed session will provide practical advice for handling often encountered situations by cheerleader and drill team sponsors.

Visit http://www.edlaw.com/training_cheerleader.html for more information and to register online.

TASA Midwinter

January 27-28, 2008

Come see us at TASA Midwinter!

Dennis Eichelbaum will be presenting "The RVAA Six Months Later" and
David Hansen will be presenting "Ethics and Indictments"