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What is Sabine Pilot?** What is Sabine Pilot Retaliation?** Is an Employer Prohibited from Retaliating Against an Employee?**
In our system of justice, Congress (the legislative branch), and those agencies whom Congress so authorize, write the law (statutes, codes, acts, regulations, etc.), and Courts (the judiciary branch) interpret these laws as they are presented to them in the form of lawsuits. Written Court decisions interpreting the law are known as “case law” or “common law”. Case/common law is also binding enforceable law, but instead of being created by Congress, it is created by Courts. While a Texas employee’s right to be free from discrimination and retaliation in the work place is mostly derived from laws created by Congress at both the state and federal level, there is one exception. The sole Texas law concerning retaliation which was created by Texas Courts as case/common law is known as “Sabine Pilot.”
The law of Sabine Pilot was created in the following case: Sabine Pilot Svs. v. Hauck, 687 S.W.2d 733 (Tex. 1985). In that case, the Texas Supreme Court held that that an employee may not be terminated for actually refusing to commit an illegal act demanded an employer. The illegal act that the employee refuses to commit must potentially subject the employee to criminal penalties. A mere good faith belief that the employee would be committing a crime is not enough. This law is construed very narrowly, and provides that the refusal to commit an illegal act must be the sole reason for the termination. Accordingly, if an employer can prove that the employee was terminated for another legitimate reason other than the employee’s refusal to commit an illegal act, the claim will fail.
How can you prove the “termination” element of a Sabine Pilot Case?** What is Constructive Discharge?**
An employee can establish that the termination requirement of a Sabine Pilot claim by proving that he was “Constructively Discharged.” Construction Discharge occurs when an employer forces the employee to quit by making work conditions intolerable.
Practically speaking, it can be very difficult to prove that an employee was Constructively Discharged and thus, an employee should consult an attorney before he or she quits.
How May an Employee Prove that their Employer Illegally Retaliated Against Them?**
An employee may prove that he or she was subject to Sabine Pilot Retaliation by showing that: (1) he or she was required to commit an illegal act that carries criminal penalties; (2) he or she refused to perform the allegedly illegal act; (3) he or she was discharged (or constructively discharged as defined above); and (4) the “Sole Cause” for his or her discharge was his or her refusal to commit an unlawful act.
- Direct Evidence of Retaliation.** Direct evidence of retaliation is evidence that, if believed, proves the fact of retaliatory intent without inference or presumption. Direct evidence of Sabine Pilot Retaliation is usually found where an employer admits to the employee or someone else, verbally or in writing, that their sole intent or sole motive is to terminate an employee because the employee refused to commit an illegal act.
- Circumstantial Evidence .** The following circumstantial evidence may be useful in proving the Sole Cause element of a Sabine Pilot claim: (1) little or no lapse of time between the employee refusing to commit an illegal act and an employee’s termination; (2) knowledge of the employee’s refusal to commit an illegal act by the person(s) making the decision to terminate the employee; (3) expression of a negative attitude towards the employee who refused to commit an illegal act; (4) failure to adhere to established company policies; (5) differential treatment in comparison to similarly situated employees; and (6) evidence that the stated reason for the termination was false.
What are an Employer’s Defenses to a Claim of Retaliation?**
Generally.** An employer may have several defenses to a claim of retaliation. Some defenses are factually based, such as when an employer has proof that an employee’s description of the facts is not true. Sometimes, when an employee claims that he or she was Constructively Discharged, the employer may challenge whether the conduct or the resulting harm was sufficient to give rise to a claim of Constructive Discharge. An employer may also defend the claim by showing that the act refused was not criminal, that the employee never actually refused to commit a criminal act, and/or that there were other legitimate reasons for the employee’s discharge thereby potentially barring the employee’s claim under Sabine Pilot. Many other defenses may be available depending on the circumstances.
How, when and to whom should an employee complain about Sabine Pilot Retaliation?**
- Employer’s Internal Complaint Process.** An employee of a private employer may complain to the employer using the employer’s internal complaint procedures.
- Claims of Sabine Pilot Retaliation are Not filed with either the EEOC or TWC (There is no Requirement to “Exhaust Administrative Remedies”).** While some types of retaliation and discrimination claims require that a “Charge of Discrimination” (also used for retaliation) be timely filed with either the Equal Employment Opportunity Commission (“EEOC”) or the Texas Workforce Commission, Human Rights Division (“TWC”), as a prerequisite (an act which is required to be performed before the lawsuit is filed) to an employee bringing a lawsuit for retaliation under certain other statutes, there is no such requirement for Sabine Pilot Retaliation. Sabine Pilot retaliation claims also do not require “Exhaustion of Administrative Remedies” (the timely and properly filing a Charge of Discrimination). However, such claims are subject to a “Statute of Limitations.” A Statute of Limitations is a deadline by which a lawsuit must be filed or, otherwise, the right to bring a lawsuit may be forever forfeited. Accordingly, an attorney should always be consulted immediately without delay.
What Damages Can an Employee Get from a Private Employer Because of Retaliation? How Much Money can an Employee Get from an Employer Because of Retaliation?**
The following types of damages are non-exclusive, and may be available to an employee who wins a retaliation case depending on the facts of the case:
- Back Pay and Front Pay.** Back Pay and Front Pay compensate an employee for wages lost because of a retaliatory act. Back pay compensates the employee for wages lost up to the time of trial. Front pay compensates and employee for wages which are anticipated to be lost after trial.
- Lost Benefits.** An employee may be able to recover the value of benefits that he or she would have received if not for the employer’s retaliatory conduct.
- Mental Anguish.** Mental anguish damages may be recovered by: (1) producing evidence of the nature, duration and severity of mental anguish and thereby proving a substantial disruption in the employee’s daily routine; or (2) proving that the employee suffered a high degree of mental pain and
distress which is more than mere worry, disappointment, anger, embarrassment and the like.
- Exemplary (Punitive) Damages.** Exemplary damages are available only if the employer committed an egregious violations of the law with actual malice (intent to cause injury to the employee). It is not sufficient to show that the employer merely acted wrongfully.
- Other Remedies.** An employee may be entitled to other remedies as well.
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