The Department of Education has ordered TEA to pay a bit over $200,000 to Laurel Kash, who served as the state director of special education for about three months in 2017.   The 59-page decision is a rare peak into an obscure whistleblower law. 

There are multiple “whistleblower” laws, each one with its own standards, procedures and burdens of proof.  This case involved Section 41 U.S.C. 4712, which protects people who work for grantees of the federal government. That would include TEA employees. Ms. Kash alleged that she blew the whistle about what she perceived as an improper award of a contract to a third party vendor.  As usual in a whistleblower case, the propriety of the awarding of that contract was not the issue.  If Ms. Kash had a good faith belief that something was amiss, she would be protected when she blew the whistle. 

Ms. Kash alleged three acts of retaliation during her brief stint at the Agency. There was a verbal reprimand, a written reprimand, and then a firing.  The DOE concluded that TEA did not know that Ms. Kash had reported alleged wrongdoing when it issued the reprimands.  Thus her complaints over the reprimands were tossed out.  However, there was evidence to show that key Agency personnel, including the Commissioner, knew that she had “blown the whistle” prior to the decision to terminate Ms. Kash.

At this point the particulars of this whistleblower statute come into sharp focus.  The law mandates a shifting burden of proof—first a burden on the whistleblower, and then a burden on the employer.  But the whistleblower’s burden is not as high as the employer’s.   

The whistleblower has to show that her disclosure of information to the proper authorities (blowing the whistle) was “a contributing factor” in the adverse action she suffered.  Notice: the whistleblower does not need to show that it was the only factor, or even the main factor—but merely that it played a part in the decision.  In this case, the DOE hearing examiner concluded that Ms. Kash satisfied that burden.  TEA’s decision to terminate her was, at least in part, motivated by her report of alleged wrongdoing.

If the whistleblower satisfies that standard, the burden of proof shifts to the employer to show that it made the decision for reasons other than the whistleblowing.  But the burden on the employer is to provide “clear and convincing” evidence of this.  The DOE hearing examiner concluded that TEA failed to clear that high hurdle.  Key Quote:

TEA has not shown by clear and convincing evidence that the decision to fire Kash was not made by someone with a significant motive to silence Kash.

The case identifies numerous concerns over Ms. Kash’s performance.   She was accused of insinuating to outsiders that Agency personnel were violating the law.  That written reprimand targeted “inadequate job performance and conduct that negatively impacts TEA.”  She refused to participate in the Agency’s investigation of her complaints, citing legal advice.  And there was this:

Finally, Morath recalled a meeting he had with the directors of the 20 regional service centers where Kash gave a presentation that Morath characterized as “terrible” and caused the Deputy Commissioner to order that Kash was not permitted to come before the cabinet again.

That’s your state director of special education, being barred from speaking to our ESC directors.  Hmmm. Those sound like serious performance concerns.  Nevertheless, the hearing examiner was convinced that 1) she blew the whistle on what she believed to be illegal activity; 2) high level TEA personnel knew she had done that; 3) her whistle blowing activity was a “contributing factor” in her termination; and 4) TEA failed to provide “clear and convincing” evidence that it would have fired her anyway.

This is not over.  TEA raised numerous procedural arguments, ranging from sovereign immunity to lack of due process.  This one may be appealed.  In the meantime, let it serve as a cautionary tale illuminating the robust protections enjoyed by whistleblowers, even when there are serious and legitimate concerns over job performance.

The case is Kash v. T.E.A. decided by the U.S. Department of Education Office of Hearings and Appeals on November 22, 2019.

DAWG BONE: WHO SAYS STATE EMPLOYEES NEVER GET FIRED!

Tomorrow:  Last Daily Dawg for 2019!