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Bosque v. Starr County, Texas, __ Fed. Appx. __, 2015 WL 7434292 (5th Cir. 2015).

Facts: Three Starr County employees sued the County claiming that they were terminated in retaliation for reporting the County Commissioner’s alleged wrongdoing in violation of their rights under the First Amendment and the Texas Whistleblower Act. According to the employees, the Commissioner had ordered that county resources be used for improvements on his personal property and that of others. The employees later reported the misuse of County property to the District Attorney and several of the Commissioner’s advisors. Reports were made to a municipal judge who advised the Commissioner, as well as the County’s Human Resources Director, the Commissioner’s administrative assistant, and a supervisor who met daily with the Commissioner. The District Attorney launched an investigation into the Commissioner’s wrongdoing. When the Commissioner was reappointed, he required the entire staff to reapply for their positions. However, the three employees who filed this suit were not re-hired. The Commissioner consulted the municipal judge about the terminations and the Human Resources Director signed their termination letters. The terminated employees then filed suit against the County. The trial court granted judgment in favor of the County but the employees appealed.

Holding: The court of appeals reversed the judgment and returned the case to the trial court. To prove a First Amendment employment retaliation claim, a plaintiff must show that (1) he suffered an adverse employment decision; (2) his speech involved a matter of public concern; (3) his interest in commenting on matters of public concern outweighs the defendant’s interest in promoting efficiency; and (4) his speech motivated the adverse employment decision. The employer then must articulate a legitimate, non-retaliatory reason for the employment action. The burden once again shifts to the employee to prove that the reasons are false and that retaliation was the real motivation for the employment action. In this case, the court of appeals held that the evidence was sufficient to meet the employees’ burden of proof. The Commissioner had provided inconsistent statements for his reasons for terminating one of the employees and could not provide any evidence of why he terminated the other two. The Commissioner’s alleged budgetary concerns also did not support termination, when there was evidence of no budgetary issues and the department had hired other employees around the same time. Thus, the dispute in evidence concerning the reasons for terminating the employees required reversal of the judgment in favor of the County.

The appeals court also held that sufficient evidence existed to support the employees’ Whistleblower claims. Under the Texas Whistleblower Act a governmental entity is liable for damages if it discriminates against a public employee who in good faith reports a violation of law to an appropriate law enforcement authority. Evidence supported the argument that the Commissioner was aware of the employees’ reports of wrongdoing to the District Attorney and that resulted in the decision to fire those employees. The court of appeals reversed the judgment in favor of the County and returned the case to the trial court.

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