Retaliation Suit Continues Against University of Texas at San Antonio AD

Apr 24, 2004

A federal judge in the Western District of Texas has delivered a mixed ruling in a case where an athletic ticket manager at the University of Texas at San Antonio sued the school and its AD after she was fired.
At the heart of Laura Stone’s complaint was her allegation that the school and AD Lynn Hickey retaliated against her after she reported what she believed were accounting irregularities associated with the use of an athletic department credit card. In considering pre-trial motions to dismiss the case, the court denied the motion, noting that there were factual disputes that needed to be resolved.
Stone began working for the university as a secretary/clerk in 1987. Over the years, she received various promotions, changes in job titles, and changes in job responsibilities. Beginning in 2000, she alleged she began reporting to her supervisors and auditors that “certain State and Federal guidelines and laws were not being followed and that the Department must stop those practices with respect to a Procurement Card issued to plaintiff in her name….”
The credit card allowed certain employees to make purchases without having to get a purchase order. She alleged that some coaches and employees were using the card issued to her, and that they had failed to provide her with the necessary documentation to comply with university guidelines.
The plaintiff alleged that she complained to her supervisors about the practice, but she was ignored.
On or about July 16, 2002, the plaintiff was told that the department was being reorganized, and that she was being discharged, effective October 31, 2002.
Stone sued, alleging that she engaged in protected free speech by reporting financial or accounting abuse at a public university, and that she should be granted relief under 42 U.S.C. § 1983. The plaintiff also claimed that her discharge fell within the exception to the employment at-will doctrine expressed by the Texas Supreme Court in Sabine Pilot Service, Inc. v. Hauck, 687 S.W. 2d 733, 28 Tex. Sup. Ct. J. 339 (Tex. 1985).
The defendants moved to dismiss Stone’s claim, arguing that Sabine Pilot is inapplicable and that the plaintiff’s speech was not protected because it involved her personal employment situation. In addition, the individual defendants claimed that they were entitled to qualified immunity.
The court promptly dispensed with plaintiff’s Sabine Pilot claim, noting that a plaintiff has to be faced with criminal punishment when they disclose sensitive information to be protected by the exception to the state’s at-will doctrine.
Turning to the First Amendment retaliation claim, the court wrote the plaintiff must show that there was an adverse action; her speech involved a matter of public concern; her interest in commenting on such matters outweighs the defendant’s interest in promoting efficiency; and the speech motivated the adverse employment action. Martinez v. Tex. Dep’t of Criminal Justice, 300 F.3d 567 (5th Cir. 2003).
The court, relying heavily on Kennedy v. Tangipahoa Parish Library Bd. of Control, 224 F.3d 359, 366 (5th Cir. 2000) for guidance, concluded that the Plaintiff was speaking on a matter of public concern. “(T)he content of the speech did not involve solely personal matters. Plaintiff alleged that other coaches and University employees were making unknown purchases and/or circumventing purchasing policies. These actions, if true, may have violated various laws.”
The other key consideration was whether “the speech was merely made in furtherance of a personal employment dispute dealing with Plaintiff’s job responsibilities, evaluation, and later challenge regarding being selected for discharge pursuant to an alleged departmental reorganization.” The court noted the plaintiff’s concerns appear to be raised before she had any personal dispute with the defendants, but that such evidence must be substantiated through discovery. Thus, it denied the defendants’ motion for summary judgment.
Lastly, the court looked at whether Hickey, who was sued in her individual capacity, is entitled to qualified immunity. The court considered the plaintiff’s allegation that the reorganization had been put off several months before it was finally initiated. It also seemed to lean in the direction that Hickey’s decision might have been influenced by Stone’s action. Finally, it noted that Hickey, or any other AD, should have known how the decision to discharge Stone would appear.
”A reasonably objective public official, situated in Athletic Director Lynn Hickey’s position, would have known that recommending the Plaintiff’s termination, which would result in the de facto termination of Plaintiff, after Plaintiff reported to her various accounting irregularities, would violate a clearly established constitutional right,” wrote the court. Laura Stone v. Ricardo Romo et al., Civil Action No: SA-03-CA-964-XR
W.D. TX, 2/13/04
Attorneys of Record: (for plaintiff) Joseph R. Gilbreath, Attorney at Law, San Antonio, Tx. (for defendants) Linda A. Halpern, Austin, Tx.:


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