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.




                                          21
