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Elthon v. University of Houston6/6/2002
This is the second appeal in this Whistleblower Act case. While employed as a chemistry professor at the University of Houston, Dr. Don Elthon alleged that he reported improper or illegal activities by other faculty members, and suffered retaliatory treatment as a result. In an earlier interlocutory appeal, we affirmed the trial court's denial of the University's plea to the jurisdiction, finding he had pleaded compliance with the grievance requirements of the statute. See Tex. Gov't Code Ann. §§ 554.006(a); University of Houston v. Elthon, 9 S.W.3d 351 (Tex. App.CHouston [14th Dist.] 1999, pet. dism'd w.o.j.). The case then proceeded to trial, and the jury found all issues in favor of the University of Houston. On appeal, Elthon blames this result on improper evidence and jury instructions.
The Jury Instruction: Causation
In his first issue, Elthon asserts the trial court's instruction required him to prove his whistleblowing was the "sole cause" of the University's retaliatory actions. The court's jury question began:
Did the University of Houston retaliate against Dr. Don Elthon because of his good faith report of a violation of law, if any, to an appropriate law enforcement agency?
An employer "retaliates" against an employee when the employer:
(1) takes an adverse employment action against an employee that effects an employee's compensation, promotion, demotion, work assignment or performance evaluation; and
(2) the adverse employment action would not have occurred when it did had the report not been made B that is, but for the report, the adverse employment action would not have occurred.
Elthon requested the trial court to submit an instruction to the jury that he did not have to prove that his report was the sole cause of the alleged retaliation. The trial court refused.
In Texas Department of Human Services v. Hinds, 904 S.W.2d 629, 637 (Tex. 1995), the Texas Supreme Court construed the somewhat ambiguous "because" standard in the whistleblower statute to require the following jury instruction:
An employer does not discriminate against an employee for reporting a violation of law, in good faith, to an appropriate law enforcement authority, unless the employer's action would not have occurred when it did had the report not been made.
As can be seen, the Court did not require the "not sole cause" instruction requested by Elthon. The jury charge given here substantially complies with the instruction required by Hinds. The trial court's addition of the "but for" clause did not alter the standard; it merely incorporated the general definition of cause-in-fact. See Lee Lewis Const., Inc. v. Harrison, 70 S.W.3d 778, 784 (Tex. 2001) (noting test for cause-in-fact is whether (1) it was a substantial factor (2) without which harm would not have occurred); see also Texas Natural Resource Conservation Com'n v. McDill, 914 S.W.2d 718, 724 (Tex. App.CAustin 1996, no pet.) (construing Hinds to require "but for" instruction).
Elthon contends that the Hinds standard was overruled in Quantum Chemical Corporation v. Toennies, 47 S.W.3d 473 (Tex. 2001). But the statute there only required proof that age discrimination "was a motivating factor" of an employment practice. See Tex. Lab. Code Ann. § 21.125(a). This is simply a different statutory standard. The first point of error is overruled.
The Jury Instruction: Law Enforcement
In his second point, Elthon asserts the trial court should have submitted his proposed jury instruction defining "law enforcement authority" in the same jury question. The court's instructions stated:
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