Good News for State Employers: Court Raises Employee’s Burden of Proof in Whistleblower Lawsuits

The Austin Court of Appeals recently provided government employers some good news concerning retaliation claims made by employees under The Texas Whistleblower Statute, which applies solely to public sector employees. The statute prohibits government employers from taking adverse personnel actions (i.e. demotions, suspensions, terminations, etc.) against employees in retaliation for reporting violations of law.

The key issue in this case was whether the employee, in good faith, believed she had reported a violation of law. The Whistleblower statute requires, but does not define, "good faith." The Texas Supreme Court has previously held that "good faith" means:

1. the employee believed the reported conduct violated a law; and
2. the employee's belief was reasonable in light of their training and experience.

Relying on the Supreme Court's prior ruling, the Austin Court of Appeals held that the employee must prove that "a reasonably prudent public employee in similar circumstances, with similar training and experience, would have believed the reported facts violated a law." The Court noted that the mere fact the employee has considerable experience and training by itself does not automatically transform their subjective belief into an objective conclusion.

As a practical matter, this ruling means the employee must be able to point to a specific law that has allegedly been violated. Alleged violations of internal agency policy are insufficient. The ruling also means the employee must be able to explain how the cited law was violated and, that explanation must be reasonable based on the employee's particular training and experience. In other words, generalized allegations of illegality are insufficient.