Firing case may have big reach

Professor says it could be harder for Texas workers to raise issues

A dispute pending in federal appeals court over whether a fired employee can be forced to file a complaint with a government agency instead of going straight to court may have widespread ramifications for workers and companies statewide.

The case in front of the Fifth Circuit Court of Appeals in New Orleans involves a Houston man fired from his job supervising a crew that collects soil samples for an engineering firm. Keith Dodds alleges he was fired from Kansasbased Terracon Consultants for refusing to break a law with criminal penalties, in a 2014 wrongful termination lawsuit against the company.

Terracon believes that Dodds, rather than sue, should have followed the administrative process detailed in federal legislation regulating the number of hours a trucker can spend behind the wheel.

“That would make it more difficult for employees to complain,” said Ronald Turner, professor of law at the University of Houston Law Center who specializes in labor and employment law.

The outcome might not just affect transportation workers as many government agencies have admin-

istrative complaint processes, said Mike Doyle, a trial lawyer who represents individuals at Doyle LLP in Houston. For example, employees who believe they’ve been fired for reporting unsafe working conditions or environmental problems have a 30-day window to file a complaint with the Occupational Safety and Health Administration, which tries to recover back pay and benefits.

Clayton Hearn, an employment lawyer at Roberts Market Weinberg Butler Hailey in Dallas, said funneling such cases into an administrative process would “chip away” at one of the only protections available to Texas employees who believe they’re been fired solely because they refused to do something illegal. Hearn is not involved in the case but, like his colleagues, is watching it carefully.

A ruling in favor of Terracon’s position, he said, could gut what is known as “Sabine Pilot,” he added, referring to 3-decades-old Texas common law that protects employees fired for refusing to commit a criminal act.

‘Failure to meet goals’

In this case, Terracon denies the underlying accusations in the complaint. It did not ask Dodds to violate federal safety laws and pegged its termination decision on a “failure to meet goals,” according to court documents.

For his job, Dodds drove a long-haul truck and alleges he was near the limit of hours he could legally work. Federal regulations forbid long-haul truckers from working more than 60 hours in a seven-day stretch. His dispute began three years ago when he was driving a long-haul truck from Conroe to West Texas supervising a crew collecting soil samples.

After racking up 58 hours, he left the big rig behind at the job site in West Texas to make the trek back to Conroe for the weekend as a passenger in a car driven by one of his crew members, according to his lawsuit. It was his wedding anniversary, and he wanted to get home.

‘Work the weekend’

The office manager in Conroe tried to reach Dodds as he was heading back, telling him to stay on the project until it was finished, according to the manager’s report filed with the court. An email instructed Dodds to “work the weekend.”

Dodds said the manager, in a later call, told him to go back and get a hotel room, but Dodds refused, according to records filed with the court. To comply with DOT rules, he would need 34 hours of consecutive time off, including two periods from 1 a.m. to 5 a.m., making it impossible to work most of the weekend, according to Dodds’ lawsuit. If he violated the rule, he could be charged criminally and fined up to $2,500.

The company contends it wanted Dodds to use the time at a hotel so his hours would “reset.” When he reported to work the following Monday, he was fired.

Typically, a jury in state district court in Harris County would determine the truth.

But the engineering consulting firm asked the federal court in Houston to rule on whether Dodds should be forced to use a federal government administrative process to handle his complaint rather than filing suit under a more expansive — and potentially more generous — state common law. Terracon has more than 3,500 employees in 42 states.

Jury trials

“Essentially you’d lose your right to a jury trial if you’re fired for refusing to do something illegal,” said W. Craft Hughes, a trial lawyer with Hughes Ellzey, representing Dodds.

Lawyers won’t want to take on disputes if it’s unlikely they’ll ever end up in front of a jury, said Hughes, who presented his oral arguments before the Fifth Circuit Court of Appeals earlier this month.

Terracon Consultants was shocked by Dodds’ allegation, said Jeff Barnes, an employment lawyer with Fisher and Phillips in Houston representing Terracon.

“We don’t believe he was asked to commit an unlawful act,” he said.

But it’s a matter for the government to decide under the federal Surface Transportation Assistance Act, Barnes said. Under that law, an employee who is terminated can file a complaint with the U.S. secretary of labor, who can order reinstatement and award back pay, attorney fees and up to $250,000 in punitive damages, according to the U.S. Department of Labor.

The legislative branch set up that remedy, and that’s where Dodds should go, Barnes said, rather than using the state common law that protects employees who believe they were fired for refusing to perform criminal acts. The protection is known as “Sabine Pilot” after a landmark 1985 case in which a deckhand was terminated for refusing to illegally pump wastewater into the waterways.

Previously rejected

In May, U.S. District Judge Lee Rosenthal rejected Terracon’s request to dismiss the case and began preparations for a trial on the underlying accusations. The case was initially filed in state district court in Harris County, but Terracon petitioned to move it to federal court in Houston because the two sides are based in different states and damages are likely to exceed $75,000.

Terracon appealed that ruling, and Rosenthal has asked the Fifth Circuit Court of Appeals for review. A decision is expected later this year.