Ysleta Independent School District v. Franco, 417 S.W.3d 443 (Tex. 2013)
Texas Whistleblower Act– Franco was a principal at a public school. Fearing the presence of asbestos in the school, he contacted his immediate supervisor concerning this issue and others. Franco complained again to the superintendent and was subsequently suspended. He sued the school district under the Texas Whistleblower Act. The school district filed a plea to the jurisdiction. The trial courtdenied the school’s plea to the jurisdiction. The court of appeals affirmed holding that Franco produced sufficient evidence of his good faith belief that the superintendent and trustees were authorized to regulate under or enforce the Asbestos Act. The Supreme Court disagreed stating that the case raised a familiar issue: whether a report of alleged violations of law is jurisdictionally insufficient if made to someone charged only with internal compliance. TEX. GOV’T CODE § 554.001 et seq. The court stated that a few months before, in University of Texas Southwestern Medical Center v. Gentilello, they held that such reports cannot support an objective, good-faith belief that the reported-to official is an “appropriate law-enforcement authority” under the Act. 398 S.W.3d 680, 686 (Tex. 2013). Also, the Court pointed out that even more recently, in Canutillo Independent School District v. Farran, they held that complaints to a school board, superintendents, and internal auditor were not good-faith complaints where the officials had no authority to enforce the allegedly violated laws outside the institution itself. 409 S.W.3d 653, 655 (Tex. 2013). Therefore, the court reversed the court of appeals and granted the plea to the jurisdiction thereby dismissing the case. (Editor’s note: This and the other cases cited by the Supreme Court essentially means that a government employee reporting violations of law by the government entity either needs to be an employment law expert or consult with such an attorney in order to be protected by the Act. It’s unfortunate that a whistleblower law which allegedly encourages employees to report illegal activity is complicated to this extent.)

Phillips v. Continental Tire Americas, LLC, No. 13-2199 (7th Cir. 2014)
Worker’s Compensation Retaliation– Phillips worked at CTA as a trucker for 22 years, until, in 2010, he visited CTA’s onsite health services department to report that his fingers went numb at work and to initiate a workers’ compensation claim. CTA had a written substance abuse policy that required drug testing in certain situations, including initiation of workers’ compensation claim. Refusal to submit to testing was cause for immediate suspension pending termination. An injured employee could receive medical treatment in the health services department and return to work without being required to submit to a drug test if the employee did not seek to initiate a workers’ compensation claim and thesituation did not fall into one of the other categories for which drug testing was required. Phillips was advised that if he didn’t take the drug test, his employment would be terminated. He refused to take the drug test and was terminated for refusing to submit to drug testing upon his initiation of a workers’ compensation claim. Phillips did file a workers’ compensation claim and eventually received benefits. The district court entered summary judgment, rejecting his claim that his termination was retaliation for filing a workers’ compensation claim. The Seventh Circuit affirmed.

Spurling v. C&M Fine Pack, Inc., No. 13-1708 (7th Cir. 2014)
FMLA & ADA– In 2004 Spurling began working for C&M as a packer assigned to the night shift. In 2009, she began to experience decreased consciousness and alertness, for which she received several disciplinary warnings. Spurling received a Final Warning/Suspension in February 2010 after she left her work site to use the restroom and did not return for more than 20 minutes. After her suspension, Spurling met with her manager and supervisors and indicated that her sleep issues were caused by a prescribed medication; she produced a note to the same effect. Spurling continued to experience difficulty remaining conscious at work and received a Final Warning/Suspension, Spurling informed human resources that her performance issues might be related to a medical condition. Although her doctor indicated that she had a disability, C&M concluded that she did not and terminated her employment. The federal district court entered summary judgment in favor of C&M, rejecting claims of violation of the Americans with Disabilities Act and of the Family and Medical Leave Act. The Seventh Circuit reversed in part. Spurling established disputed issues of material facts as to whether C&M failed to properly engage in the interactive process required by the ADA, but did not provide sufficient notice to establish a claim under the FMLA.

Maverick Transportation, LLC v. U.S. Dept. of Labor, No. 12-3004 (8th Cir. 2014)
Surface Transportation Assistance Act– Maverick Transportation argued that the Department of Labor Administrative Review Board (ARB) erred in finding timely an employee complaint regarding retaliation for reporting a violation of the federal Surface Transportation Assistance Act. Maverick had petitioned for review of the ARB’s affirmance of an ALJ’s finding that Maverick was liable for taking retaliatory action against an employee in violation of the Surface Transportation Assistance Act (STAA), 49 U.S.C. 31105. The court applied deference in regards to the agency’s interpretation that the limitations period in the STAA began to run when the employee received notice of the employer’s adverse action; the court also agreed with the ARB that the ALJ’s finding that the employee received such notice within 180 days of filing his claim was supported by substantial evidence; and, therefore, the ARB’s determination that the employee timely filed his claim was not contrary to law. The court also concluded that all of the facts found by the ALJ, including those pertaining to the retaliation claim, were supported by substantial evidence. A retaliation claim based on a refusal to drive under the STAA is considered under a burden-shifting analysis. See 49 U.S.C. § 31105(a)(2)(b) (requiring STAA complaints to be determined under the standard set forth in 49 U.S.C. § 42121(b)(2)(B)). A complainant must first prove a prima facie case of retaliation by showing (1) the refusal to drive was protected under the STAA; (2) the employer knew of the protected conduct; (3) the employer took an adverse employment action against the complainant; and (4) the refusal to drive was a contributing factor in the employer’s decision to take the adverse action. Finally, the ALJ’s decision not to reduce the back pay award on the basis that the employee failed to mitigate damages by voluntarily leaving his position was not contrary to law and the court found no abuse of discretion in the ALJ’s award of compensatory damages for the employee’s emotional distress. Accordingly, the court denied the petition for review.

Gogos v. AMS-Mechanical Systems, Inc., No. 13-2571 (7th Cir. 2013)
ADA- Transitory & Minor Impairments– Gogos, a pipe welder for 45 years, had taken blood pressure medication for more than eight years. He began working for AMS in December 2012 as a welder and pipe-fitter. The next month, his blood pressure spiked and he experienced intermittent vision loss and a red eye. His supervisor agreed that he could leave to seek immediate medical treatment. As Gogos left work, he saw his general foreman and stated that he was going to the hospital because “my health is not very good lately.” The foreman immediately fired him. After pursuing a charge with the Equal Employment Opportunity Commission, Gogos sued. The district court dismissed his case, reasoning that Gogos’s medical conditions were “transitory” and “suspect.” However, the circuit court held that Gogos alleged sufficient facts plausibly showing that he is disabled. The ADA defines “disability” as a physical or mental impairment that substantially limits one or more major life activities …; (B) a record of such an impairment; or being regarded as having such an impairment … . 42 U.S.C. § 12102(1). Under the 2008 amendments, a person with an impairment that substantially limits a major life activity, or a record of one, is disabled, even if the impairment is “transitory and minor” (defined as lasting six months or less). Likewise, an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active. 42 U.S.C. § 12102(4)(D). The court held that under the 2008 amendments, the fact that the periods during which an episodic impairment is active and substantially limits a major life activity may be brief or occur infrequently is no longer relevant to determining whether the impairment substantially limits a major life activity. 29 C.F.R. Pt. 1630, App. at Section 1630.2(j)(1)(vii). Instead, the relevant issue is whether, despite their short duration in this case, Gogos’ higher than usual blood pressure and vision loss substantially impaired a major life activity when they occurred. The court also held that Gogos’ alleged chronic blood pressure condition, for which he has taken medication for more than eight years, could also qualify as a disability. The amended ADA provides that when determining whether an impairment substantially limits a major life activity, the ameliorative effects of mitigating measures such as medication are not relevant. The Seventh Circuit vacated, reasoning that Gogos stated a claim under the Americans with Disabilities Act, 42 U.S.C. 12112.

Gaines v. K-Five Construction Corporation, No. 12-2249 (7th Cir. 2014)
Surface Transportation Assistance Act-Title VII– Gaines questioned the roadworthiness of two different trucks that his employer of five years (K-Five) assigned him. Management took steps to address his concerns, but the trucks never reached the level of safety sought by Gaines. On his last Friday with the company, he informally discussed an alleged steering problem with a K-Five mechanic. He later misreported what the mechanic said. Gaines claims that he honestly believed he was accurately relaying the information but that he botched the details. Citing the false report and instances of alleged insubordination, K-Five fired Gaines. Gaines claimed that he was fired due to his national origin or because he complained about safety issues and that he was owed unpaid overtime. The district court entered summary judgment in favor of K-Five. The circuit court examined the Title VII claim and first held that Gaines had waived any argument under the direct method of proof and was left with the indirect method requiring similar comparator employees who were treated different than Gaines. The circuit court rejected his comparator evidence. The court turned to his Surface Transportation Assistance Act (STAA) claim. The court first ruled that it had jurisdiction of the STAA claim because Gaines filed a timely complaint with the Occupational Safety and Health Administration and since no final decision was issued within 210 days, he was allowed to file his complaint with the district court for de novo review (see 49 U.S.C. § 31105(c)). Under the STAA, an employee engages in protected activity when he refuses to operate a vehicle because he fears that operating the vehicle will cause harm to him or the public. As the statute indicates, an employee is only protected for refusing to drive a vehicle if he first asked his employer to correct the hazardous safety condition, but the safety hazard remained uncured. The court held that whether Gaines could reasonably believe that the remaining asphalt posed a safety risk was a genuine issue of material fact precluding summary judgment on the claim.