Dissenting opinion issued March 14, 2017
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-16-00026-CV
———————————
MICHAEL BARNETT, Appellant
V.
CITY OF SOUTHSIDE PLACE, Appellee
On Appeal from the 151st District Court
Harris County, Texas
Trial Court Case No. 2014-69569
DISSENTING OPINION
Michael Barnett appeals from the trial court’s order granting the City’s plea
to the jurisdiction in his suit brought under the Texas Whistleblower Act. Barnett
contends that the trial court erred in granting the City’s plea because the
jurisdictional evidence raises a fact issue regarding whether he suffered an adverse
employment action because of his report of the City’s alleged violation of law.
This case construes Texas Government Code section 554.002(a), part of the
Texas Whistleblower Act (the “Whistleblower Act”), governing a state employee’s
remedies for retaliation by an employer for an employee’s good faith report of a
violation of law by the employer or another public employee. See TEX. GOV’T CODE
ANN. § 554.001–.010 (West 2012). I believe the majority’s construction of the
statute is clearly erroneous in ignoring the persuasive authority of federal law
approved by the Texas state courts in construing and applying state employment and
discrimination and retaliation statutes. Consequently, the majority’s rulings and
holding are contrary to established law.
The majority first holds that the Texas Whistleblower Act does not apply in
this case because appellant Michael Barnett resigned his employment with appellee,
the City of Southside Place (the “City”), rather than being fired. However, this
conclusion ignores federal and state precedent applying the “constructive discharge”
standard to retaliation claims under the Whistleblower Act. I would hold that Barnett
raised a jurisdictional fact issue as to whether he was constructively discharged by
the City before his resignation, stating a claim under the Whistleblower Act and
precluding dismissal on the City’s plea to the jurisdiction.
2
The majority also holds that the Whistleblower Act does not provide a remedy
for a former employee whose state employer took an adverse action against him after
his employment was terminated. This holding is contrary to Texas Supreme Court
controlling precedent construing the retaliation provision in the Whistleblower Act
in light of federal precedent interpreting the federal employment anti-discrimination
act, Title VII, 42 U.S.C.A. §§ 2000e-1 et seq.1 And it is contrary to both United
States Supreme Court and Fifth Circuit precedent (cited by Barnett) holding that the
remedies for retaliation under the analogous federal statute, Title VII, do apply to
acts of retaliation taken by employers against former employees.
Critically, the majority’s opinion and holdings lead to absurd consequences,
as they allow state employers to avoid the consequences of the Whistleblower Act
simply by delaying acts of retaliation against a whistleblower until after he has
resigned under pressure from the employer or has been fired. The opinion thereby
encourages delayed acts of retaliation and undermines the purpose of the
Whistleblower Act—which is to prevent acts of retaliation against whistleblowers,
not to encourage them. This cannot be a correct interpretation of Texas law.
Because I believe that this case construing the Whistleblower Act is important
to the jurisprudence of Texas, and because I believe the majority clearly errs, I
respectfully dissent. I would hold that the Whistleblower Act does apply to adverse
1
Montgomery County v. Park, 246 S.W.3d 610 (Tex. 2007).
3
actions taken by public employers against whistleblowing employees to force them
to resign and to acts of retaliation taken by public employers against former
employees after their discharge. I would reverse the trial court’s order dismissing
this suit and would remand the case for discovery and trial.
Background
The facts are briefly restated below for clarity.
Barnett, a detective for the City from approximately March 2013 to September
2014, reported to his supervisor, Stephen McCarty, the City’s Chief of Police, that
he had become aware that the City had implemented an illegal ticket quota practice
with its officers.
On August 15, 2014, Chief McCarty prepared a written memorandum to the
Texas Rangers summarizing a list of his grievances against David Moss, the City
Manager, including the alleged ticket quota requirement. The next day, August 16,
2014, Chief McCarty sent an email to Glenn Patterson, the City Mayor, attaching
the memorandum he had drafted. On August 18, 2014, Barnett and Chief McCarty
met with Texas Ranger Jeff Owls, reported the City’s alleged ticket quota practice,
and gave him Chief McCarty’s August 15 memorandum.
The next day, August 19, 2014, Barnett submitted a letter of resignation to
Moss and Chief McCarty with an effective date of September 3, 2014.
4
On August 31, 2014, Moss sent an “Inquiry Memo” to department officers
requiring them to answer questions regarding allegations of misconduct by Chief
McCarty. In their answers, two officers alleged that Barnett had encouraged them
to leave the City’s employment more than once between August 20 and August 30,
2014.
In an Inquiry Memo dated September 2, 2014, Moss informed Barnett that he
was conducting an internal investigation into the officers’ allegations regarding
Barnett’s alleged misconduct and directed him to answer the written questions and
provide the documentation sought in the memo. The memo stated that the
allegations, if true, constituted insubordination which would warrant Barnett’s
involuntary separation from the City’s employment. Barnet refused to answer the
questions and informed Moss that he was resigning his position with the City,
effective immediately.
That same day, September 2, 2014, Moss prepared a Notice of Termination
letter stating that Barnett’s employment with the City was terminated for
insubordination based on (1) his refusal to comply with Moss’s instructions related
to the City’s internal investigation into his conduct and (2) his suggestion to two
other officers that they resign their employment with the City. On October 23, 2014,
the City submitted a Texas Commission on Law Enforcement (“TCOLE”)
“Separation of Licensee (F-5)” form reflecting that Barnett had been “dishonorably
5
discharged.” In an accompanying letter to TCOLE, the City stated that the F-5 form
was intended to amend a previous F-5 form completed by Barnett, and that Barnett
had also completed F-5 documents for two other officers.
On November 26, 2014, Barnett filed suit against the City alleging that he had
suffered adverse employment actions in retaliation for reporting a violation of law
by the City to Chief McCarty and the Texas Rangers.
On November 9, 2015, the City filed its plea to the jurisdiction, arguing that
the trial court lacked subject matter jurisdiction over Barnett’s whistleblower claim
because (1) the City did not take any adverse personnel action against him; (2) even
if it had, there was no evidence that the adverse employment action was because of
his report of the City’s alleged violation of law; and (3) even if the City knew of his
report before his separation from employment, it had a legitimate basis to terminate
his employment based on his insubordination. The trial court granted the City’s plea
and dismissed Barnett’s whistleblower claim with prejudice. I would reverse and
remand.
Texas Whistleblower Act
A. Statutory Provisions
The Whistleblower Act, Government Code section 554.002(a), provides, “A
state or local governmental entity may not suspend or terminate the employment of,
or take other adverse personnel action against, a public employee who in good faith
6
reports a violation of law by the employing governmental entity or another public
employee to an appropriate law enforcement authority.” TEX. GOV’T CODE ANN.
§ 554.002(a). The Act further provides that “[a] public employee who alleges a
violation of this chapter may sue the employing state or local governmental entity
for the relief provided by this chapter.” Id. § 554.0035. The Act contains two
jurisdictional requirements before the waiver of governmental immunity takes
effect: the plaintiff (1) must be a public employee and (2) must allege a violation of
the Act. See State v. Lueck, 290 S.W.3d 876, 881 (Tex. 2009); City of S. Houston v.
Rodriguez, 425 S.W.3d 629, 631 (Tex. App.—Houston [14th Dist.] 2014, pet.
denied). To allege a violation of the Act, the plaintiff must allege that an adverse
employment action was taken against him because he in good faith reported a
violation of law by the employer or another public employee to an appropriate law
enforcement authority. TEX. GOV’T CODE ANN. § 554.002(a); Rodriguez, 425
S.W.3d at 631. To make a good faith report of a violation of law, “the employee
must believe that the reported conduct violated the law and that belief must be
reasonable in light of the employee’s training and experience.” Rodriguez, 425
S.W.3d at 631. The elements of section 554.002(a) can be considered to determine
both jurisdiction and liability. Lueck, 290 S.W.3d at 883.
7
B. Analysis
The City does not dispute that Barnett is a public employee, that he made a
good faith report that his employer or another public employee violated the law, or
that he made the report to an appropriate law enforcement authority. However, it
disputes Barnett’s claim that he raised a fact issue in the trial court as to (1) whether
he suffered an adverse employment action (2) because he reported a violation of law,
precluding dismissal of this claims on the City’s plea to the jurisdiction.
Barnett asserts that he suffered adverse employment actions when the City
(1) terminated his employment; (2) drafted a Notice of Termination letter and placed
it in his file; (3) submitted an F-5 form to TCOLE reflecting that he was dishonorably
discharged; and (4) falsely accused him of submitting F-5 forms to TCOLE. In
support of his argument that his employment was terminated, Barnett relies on City
Manager Moss’s deposition testimony that he fired Barnett, the City’s Notice of
Termination letter, and the City’s letter to TCOLE regarding the amended F-5 form
that stated that the City terminated Barnett’s employment on September 2, 2014.
Barnett argues that this evidence demonstrates that the City intended to, and believed
it had, fired him.
The majority holds that Barnett failed to state a claim under for retaliatory
discharge by the City because he voluntarily resigned and was not terminated by the
City, as required by the Whistleblower Act, and because retaliatory actions taken
8
against him by the City after his resignation were not within the scope of the Act. It
concludes, therefore, that he has failed to state a claim under the Act and that his
case was properly dismissed. The majority claims that Barnett has pointed to no
applicable authority on point. I disagree, and I would hold the opposite. The first
concern, therefore, must be to determine the law governing these issues.
1. Applicable Law
Contrary to the majority—who find Barnett’s authority to be applicable only
to federal law and irrelevant to Texas law—I would hold, on the authority of Texas
Supreme Court precedent established in Montgomery County v. Park, that federal
law construing the anti-retaliation provision of Title VII of the federal Civil Rights
Act is persuasive authority in construing the anti-retaliation provision of the Texas
Whistleblower Act because the statutes serve “similar purposes.” 246 S.W.3d 610,
614 (Tex. 2007).2 And I would follow the Texas Supreme Court in applying the
2
Because one of the policies behind the adoption of the TCHRA was to further
federal anti-discrimination policies embodied in Title VII of the Civil Rights Act of
1964 and Title I of the ADA and its amendments, the Texas courts have similarly
followed federal precedent in construing Texas anti-discrimination statutes,
including the Texas Commission on Human Right Act (TCHRA) set out in the
Texas Labor Code at Chapter 21. See Hagood v. Cnty. of El Paso, 408 S.W.3d 515,
522–23 (Tex. App.—El Paso 2013, no pet.); Davis v. City of Grapevine, 188 S.W.3d
748, 756–57 (Tex. App.—Fort Worth 2006, pet. denied); see also Haggar Apparel
Co. v. Leal, 154 S.W.3d 98, 100 (Tex. 2004) (“One purpose of chapter 21 of the
Texas Labor Code is to further the policies of Title I of the [ADA]. Accordingly,
in construing an applying chapter 21, we are guided by federal law.”).
9
federal standard with “appropriate modifications” in construing and applying the
Whistleblower Act. See id.
In 2006, in Burlington Northern & Santa Fe Railway Co. v. White, the United
States Supreme Court discussed the purpose of the anti-retaliation provision of Title
VII and explicitly distinguished it from those other anti-discrimination provisions
that apply to “actions that affect employment or alter workplace conditions.” 548
U.S. 53, 54, 126 S. Ct. 2405, 2407 (2006). The Court pointed out that “[t]he anti-
retaliation provision seeks to secure [the Act’s primary objective] by preventing an
employer from interfering (through retaliation) with an employee’s efforts to secure
or advance enforcement of the Act’s basic guarantees,” whereas to prevent a
workplace where employees are discriminated against solely because of their status,
“Congress did not need to prohibit anything other than employment-related
discrimination.” Id. at 63, 126 S. Ct. at 2412. The Court explained that merely
prohibiting employment-related discrimination would achieve the purpose of
preventing discrimination in the workplace, but it would not achieve the second
objective of preventing retaliation because it “would not deter the many forms that
effective retaliation can take,” and thus it would not fully achieve the anti-retaliation
provision’s purpose of “‘[m]aintaining unfettered access to statutory remedial
mechanisms.’” Id. at 64, 126 S. Ct. at 2412 (quoting Robinson v. Shell Oil Co., 519
U.S. 337, 346, 117 S. Ct. 843, 848 (1997)).
10
The Court held that, instead of covering discriminatory actions in the
workplace, the anti-retaliation provision covers any employer actions that would
have been “materially adverse” to a reasonable employee or applicant; thus, “a
[retaliation] plaintiff must show that a reasonable employee would have found the
challenged action materially adverse, ‘which in this context means it well might have
dissuaded a reasonable worker from making or supporting a charge of
discrimination.’” Id. at 68, 126 S. Ct. at 2415 (quoting Rochon v. Gonzales, 438
F.3d 1211, 1219 (D.C. Cir. 2006)). The Court pointed out that the “primary purpose”
of the anti-retaliation provision is to maintain “unfettered access to statutory
remedial mechanisms” by prohibiting employer actions that are likely to deter
discrimination victims from complaining to the EEOC, the courts, and employers.
Id. at 64, 126 S. Ct. at 2412. It stated that it used reasonable employee’s reactions
because the provision’s standard for judging harm must be objective, and thus
judicially administrable. Id. at 67–68, 126 S. Ct. at 2415.
The year after the Burlington decision, in a case of first impression, the Texas
Supreme Court addressed the issue of the scope and application of the Whistleblower
Act in Park. It stated, “The anti-retaliation provision of Title VII and the
Whistleblower Act serve similar purposes, and we think it is appropriate to require
plaintiffs to show objective material harm under both. We therefore adopt the
Burlington standard with appropriate modifications.” 246 S.W.3d at 614. The
11
supreme court held that “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.” Id. It explained, “This objective test
strikes an appropriate balance between the need to shield whistleblowers (and
thereby encourage the reporting of governmental lawbreaking) and the need to
protect government employers from baseless suits, and, in addition, provides lower
courts with a judicially manageable standard.” Id. When there are no disputed issues
of fact—as here and as in Park—the court held that the reviewing court must
determine whether the employment act taken was adverse under the standard
established in Burlington, taking as true all evidence favorable to the non-movant
and indulging every reasonable inference and resolving any doubts in his favor. Id.
Thus, the first question to be resolved is whether, under the applicable federal
and state law, Barnett voluntarily resigned, thereby acting outside the scope of the
anti-retaliation provision of the Whistleblower Act—so that acts taken against him
by the City could not be considered unlawful retaliation—or was constructively or
actually terminated by the City—so that his claim falls within the scope of the
Whistleblower Act and can be properly brought in a Texas state court. And the
second question is whether, under that same law, the Texas Whistleblower Act
applies to acts of retaliation taken by an employer against a former employee, such
as those adverse actions taken against Barnett by the City after his termination. I
12
would hold, pursuant to both Texas Supreme Court authority and federal authority
governing unlawful acts of retaliation by an employer against a whistleblower, that
Barnett stated a claim against the City on both grounds and that the City’s plea to
the jurisdiction was improperly granted
2. Constructive and Actual Discharge by Employer Under the Texas
Whistleblower Act
The majority concludes that “Barnett’s assertion that his employment was
terminated is belied by his own sworn testimony that he voluntarily resigned before
he received the termination letter,” for which it cites Barnett’s own deposition
testimony. Slip Op. at 8. It observes, “Although the termination letter might
otherwise qualify as an adverse employment action under a different set of facts, it
does not here because there is undisputed evidence that Barnett had already resigned
his employment with the City.” Slip Op. at 9. The majority’s argument and
conclusion are, however, conclusory, unsupported, and dismissive of both federal
and state law construing constructive discharge in the case of employer retaliation
against a whistleblower.
Constructive discharge is a fundamental principle of employment
discrimination claims, including retaliation claims, in both public and private
workplaces and under both federal and state law. Specifically, the binding precedent
of this Court holds that “constructive discharge is a ‘termination’ under the
Whistleblower Act.” Univ. of Tex. Med. Branch at Galveston v. Hohman, 6 S.W.3d
13
767, 774 (Tex. App.—Houston [1st Dist.] 1999, pet. dism’d w.o.j.); see also Pa.
State Police v. Suders, 542 U.S. 129, 143, 124 S. Ct. 2342, 2352 (2004) (holding
that “Title VII encompasses employer liability for a constructive discharge”);
Microsoft Corp. v. Mercieca, 502 S.W.3d 291, 312 (Tex. App.—Houston [14th
Dist.] 2016, no pet.) (holding that concept of constructive discharge permits
employee who has quit to demonstrate required adverse employment action
necessary for statutory retaliation claim under Texas Commission on Human Rights
Act (“TCHRA”)).
Constructive discharge occurs when “working conditions become so
intolerable that a reasonable person in the employee’s position would have felt
compelled to resign.” Suders, 542 U.S. at 141, 124 S. Ct. at 2351. “Whether a
reasonable employee would feel compelled to resign depends on the facts of each
case,” but factors bearing on this determination include: “(1) demotion; (2) reduction
in salary; (3) reduction in job responsibilities; (4) reassignment to menial or
degrading work; (5) badgering, harassment, or humiliation by the employer
calculated to encourage the employee’s resignation; and (6) offers of early
retirement that would make the employee worse off whether the offers were accepted
or not.” Gardner v. Abbott, 414 S.W.3d 369, 383 (Tex. App.—Austin 2013, no pet.).
“In addition, evidence that an employee was forced to choose between resigning or
14
being fired may be sufficient to raise a fact issue regarding constructive discharge.”
Id.
On August 19, 2014, Barnett resigned effective September 3, 2014—because,
he testified, “I didn’t trust Mr. Moss anymore. The way he was dealing with the
Police Chief made me think that I didn’t want to work for that agency anymore and
gave me the impression they were going to get me next.” However, before the
effective date of his resignation, the City initiated an inquiry against him arising out
of its investigation of Chief McCarty, required him to fill out a questionnaire
regarding allegations of his insubordination, told him his actions, if true, would
warrant separation from City employment, sent him a Notice of Termination letter,
and actually terminated his employment, according to City Manager Moss’s own
testimony, on September 2, 2014.
These actions by the City support a conclusion that Barnett did not voluntarily
resign but was constructively discharged. Therefore, it cannot be the case, as the
majority holds, that the Whistleblower Act does not apply to Barnett because he
resigned, and Barnett’s claim cannot properly be dismissed on a plea to the
jurisdiction for failure to state a claim under the Whistleblower Act on this basis.
3. Retaliation Against Former Employees
The majority also holds that the Whistleblower Act does not apply to this case
because the retaliatory actions taken against Barnett by the City occurred after he
15
resigned his employment on August 19. It points out that Barnett argued that his
whistleblower claim was supported by “the City’s submission of an F-5 form to
TCOLE reflecting that Barnett was dishonorably discharged, and the City’s
statement in its accompanying letter to TCOLE that Barnett had completed his own
F-5 form as well as F-5 forms for two other officers, [both of which] constitute
adverse employment actions.” Slip Op. at 9–10. However, it opines, “These
complained-of actions occurred nearly two months after Barnett resigned his
employment with the City.” Slip Op. at 10. It acknowledges that “[s]ection
554.002(a) prohibits suspension or termination of the employment of, or other
adverse personnel action against,” a protected claimant, but it argues that “[s]ection
554.001(3) defines a ‘personnel action’ as ‘an action that affects a public employee’s
compensation, promotion, demotion, transfer, work assignment, or performance
evaluation.’” Slip Op. at 12 (citing TEX. GOV’T CODE ANN. §§ 554.002(a),
554.001(3)). It concludes, “The Act thus prohibits adverse personnel actions that
affect the benefits flowing from an ongoing employment relationship.” Slip Op. at
12 (emphasis added).
The majority dismisses as inapplicable to this case Barnett’s citation to the
Fifth Circuit’s unpublished opinion in Allen v. Radio One of Texas II, LLC, 515 F.
App’x 295 (5th Cir. 2013). Slip Op. at 10. The majority states, “Barnett argues that
‘[t]he Supreme Court has long allowed claims for retaliation by former employees
16
against former employers for post-employment adverse employment actions.’” Slip
Op. at 10–11 (quoting Allen, 515 F. App’x at 302 (citing Robinson, 519 U.S. at 346,
117 S. Ct. at 848)). The majority reasons that Robinson, which the Allen court cites,
“construed the term ‘employees,’ as used in section 704(a) of Title VII of the Civil
Rights Act of 1964 (42 U.S.C. §2000e, as amended)3—a statute not at issue here—
to include former employees bringing suit for post-employment actions,” and it
noted that “such an interpretation was consistent with the broader context of Title
VII and the primary purpose of section 704(a).” Slip Op. at 10 (citing Robinson, 519
U.S. at 346, 117 S. Ct. at 848) (emphasis added). The majority concludes that
Barnett does not fall within the Whistleblower Act’s definition of “public employee”
and holds that “Barnett has failed to raise a fact issue regarding whether he was
suspended, terminated, or suffered some other adverse personnel action because he
reported a violation of law.” Slip Op. at 13.
But the majority’s out-of-hand dismissal of Allen and Robinson is contrary to
Texas law relying on federal law as authoritative precedent. In this regard, Robinson
is particularly important.
3
Section 704(a) makes it unlawful “for an employer to discriminate against any of
his employees or applicants for employment” who have either availed themselves
of Title VII’s protections or assisted others in doing so. See 78 Stat. 257 (42 U.S.C.
§2000e–3(a), amended).
17
Robinson was a retaliatory discrimination case brought under 42 U.S.C.
§ 2000e—3(a) and construing Title VII section 704(a). And it is directly contrary
to the majority’s holding. In that case, decided prior to Burlington (and relied upon
by the United States Supreme Court in Burlington it in determining the scope of the
federal anti-retaliation provision, just as Park relied upon Burlington for that
purpose), the Supreme Court held that former employees were included within
section 704(a)’s coverage. Robinson, 519 U.S. at 346, 117 S. Ct. at 849. The Court
observed that “several sections of the statute plainly contemplate that former
employees will make use of Title VII’s remedial mechanisms,” including section
703(a), prohibiting discriminatory “discharge.” Id. at 345, 117 S. Ct. at 848. It
reasoned that section 704(a) “expressly protects employees from retaliation for filing
a ‘charge’ under Title VII, and a charge under § 703(a) alleging unlawful discharge
would necessarily be brought by a former employee.” Id. Thus, the Court found it
“far more consistent to include former employees within the scope of ‘employees’
protected by § 704(a),” and it observed that “exclusion of former employees from
the protection of § 704(a) would undermine the effectiveness of Title VII by
allowing the threat of postemployment retaliation to deter victims of discrimination
from complaining to the EEOC,” and it “would provide a perverse incentive for
employers to fire employees who might bring Title VII claims.” Id. at 345–46, 117
S. Ct. at 848.
18
Nevertheless, as throughout its opinion, the majority simply makes a
conclusory argument of its own for its holding; and it dismisses out-of-hand not only
Barnett’s authorities but controlling authority from the Texas Supreme Court and
other authority from our sister appellate courts holding that the Whistleblower Act
and similar Texas employment discrimination statutes implement on the state level
the purposes of the employment discrimination and retaliation provisions of Title
VII; and, thus, the Whistleblower Act, like similar anti-discrimination state statutes,
is to be construed in light of federal authority. The majority disregards both United
States Supreme Court authority, specifically including Robinson, and state court
authority applying the concept of constructive discharge in the retaliation context
and United States and Fifth Circuit Court of Appeals authority holding that Title VII
does apply to acts of retaliation by employers against former employees. There is
literally no legal support for the majority’s holding other than its own sui generis
reasoning, and that reasoning is contrary to the reasoning of all other authorities on
point
Mindful of the admonition of the Texas Supreme Court in Park that the
Whistleblower Act and the anti-retaliation provisions of Title VII serve similar
purposes and its adoption of the Burlington standard of proof in construing the
Whistleblower Act, I would adopt the construction of the scope and standard of proof
of violations of the Texas Whistleblower Act for retaliation cases established in
19
Park, together with the reasoning of Park, Burlington, and Robinson, and I would
apply that scope and standard of proof to the undisputed facts of this case.
Taking as true all evidence favorable to Barnett, indulging every reasonable
inference and resolving any doubts in his favor, I would hold that Barnett has stated
a claim against the City for retaliation under the Texas Whistleblower Act, section
554.002(a) of the Texas Government Code. I would, therefore, deny the City’s plea
to the jurisdiction. And, in the trial on the merits, I would determine whether Barnett
was constructively discharged and whether the City violated the anti-retaliation
provision of the Whistleblower Act by taking a materially adverse action against
Barnett either as an employee or as a former employee under the standard established
in Burlington. See Park, 246 S.W.3d at 614; see also Burlington, 548 U.S. at 68,
126 S. Ct. at 2415 (finding challenged action adverse when it “well might have
‘dissuaded a reasonable worker from making or supporting a charge of
discrimination’” (quoting Rochon, 438 F.3d at 1219)).
20
Conclusion
I would reverse the trial court’s order granting the City’s plea to the
jurisdiction and dismissing Barnett’s claims under the Whistleblower Act for want
of jurisdiction, and I would remand the case to the trial court for further proceedings
consistent with this opinion.
Evelyn V. Keyes
Justice
Panel consists of Justices Keyes, Higley, and Lloyd.
Justice Keyes, dissenting.
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