A former Port Arthur Housing Authority employee has filed a Texas Whistleblower Act lawsuit against the agency after he claims he was fired as retaliation for assisting in an audit that showed unethical and illegal conduct by board members and the executive director.
In the court filing, Joe Guillory, who worked for 10 years as the director of property services, claims he reported the activities of Executive Director Seledonio Quesada to the U.S. Department of Housing and Urban Development Office of Inspector General.
Afterward, Guillory’s lawsuit states he was harassed and ultimately fired in April.
Guillory filed a grievance, but last week was officially terminated from his job.
Cade Bernsen, Guillory’s attorney, said he is seeking damages including back and front pay, lost benefits, compensatory damages and damages for mental anguish.
With our various levels of government grappling with revenues falling short of expenses, there is a long overdue focus being put on the state of government labor. The recent Chicago teachers strike should be seen as an example of the excesses of government unions. Reporting lumps all unionization into one category, and there is no distinction expressed between private and public unions. Public sector unions are different from private unions in that they have no “Free Market” competition to keep their demands in line. In addition, the cozy relationship between the Democratic Party and public unions create a conflict of interest for elected officials.
In the private sector there are market restraints on what a union can demand. If UPS (union) workers demand too much in compensation as to render their company non-competitive with FedEx (non-union), they will lose business. This puts a “real world” restraint on what these unions can demand in terms of compensation and benefits. Corporations can go out of business, which obviously would hurt the union employees. GM & Chrysler notwithstanding, this market mechanism works well. Government has no competition, and is in effect a monopoly in terms of the services that it supplies. Therefore, there is no similar control placed upon public sector union demands. If government workers go on strike, where else can consumers go to get their drivers licenses?
With the lack of market forces, taxpayers must rely exclusively upon management to say no to costly demands. The managers who are sitting on the other side of the negotiating table are elected officials. There is a political party, however, that is beholden to the very government unions they are supposed to be negotiating with. The Democratic Party receives an overwhelming amount of money in political donations from public sector unions. In fact, their top 4 donors are various government unions. Many candidates go to union sponsored events, and pledge their support for union causes. If a candidate for office received a donation from a corporation, then after being elected, gave a lucrative no-bid contract to that corporation it would be called corruption. How is this situation any different?
Considering most government entities (other than federal) must balance their budgets every year, you would think that politicians would be restricted from offering paybacks to the unions. They can’t give what they don’t have, right? The problem with this argument is that the official has the ability to promise, and get passed into law, retirement and health benefits that will be paid for in the future. This takes away any current budgetary restraint that may exist, and puts us in the situation we find ourselves today all across the nation.
Our country is reaching a tipping point with all of the debts we have built up, and there needs to be a sober national conversation on these problems. Without market forces, and the taxpayer representatives beholden to the unions, what chance do we have? Nobody wants to talk about cutting pay or benefits, but the costs have simply gotten out of hand. The taxes that will need to be levied to support this kind of uncontrollable spending will hit all Americans. This issue is at the core of what kind of country, and opportunities we will pass on to our children.
Back in March, Elliott Monteverde-Torres, then a third-grade math teacher at DISD’s Botello Elementary, sent a letter to the Texas Education Agency that became very public. Monteverde-Torres was none too happy with Principal Angel McKoy, who he accused, among other things, of ignoring an incident in which a student shot a classmate with a BB gun and another in which a student was found to be passing out prescription drugs.
The district, after an investigation, determined Monteverde-Torres’ claims were mostly unfounded, and besides, he was a “provisional” teacher who had been told two months before sending the letter that he wouldn’t be back for the current school year. The district was as good as its word and, on June 4, his employment there ended.
Cue the discrimination lawsuit, which was filed on Friday in a Dallas County Court of at Law. According to the petition, Monteverde-Torres’ troubles started when McKoy became Botello’s principal in November 2010. Shortly thereafter, she disciplined Monteverde-Torres for “inappropriate classroom management.” He filed a grievance with the district contesting the punishment at which point “McKoy immediately began to retaliate against him,” the suit claims.
McKoy denied him access to his classroom for two months, forcing him to teach in the hallway, and demoted him to an assistant position; she reprimanded him for speaking Spanish to students in his bilingual math class; she demoted him from fourth to third grade, where there were already three bilingual teachers. Not long after, he was reclassified as a general education, rather than bilingual teacher, which meant a lower salary.
Monteverde-Torres filed a second grievance with DISD over the pay cut, at which point the alleged retaliation increased. He was subjected to increased monitoring and supervision, the suit says, and threatened with insubordination if he didn’t comply with voluntary directives. In an annual review, McKoy marked his performance as “below expectations” in several areas. McKoy interrupted an end-of-semester party to demand Monteverde-Torres’ presence in her office. A month later, he was told his contract would not be renewed.
The mistreatment began, the suit alleges, because McKoy, who is black, gives preference to teachers of her own race at the expense of Hispanics. It intensified as retaliation for his grievances. Monteverde-Torres claims he was illegally discriminated against because of his race and sex and because he acted as a whistleblower. He’s asking for back and front pay plus unspecified damages. He also asks the court to levy a $15,000 civil penalty against McKoy. DISD spokesman Jon Dahlander said the district can’t comment on pending litigation.
In a union workplace, the collective bargaining agreement (CBA) outlines rights for both employees and the employer. It also defines the powers an arbitrator may have if called on to interpret the contract. If the arbitrator goes too far, a court can reverse his or her decision.
Recent case: Ruben’s union job at a Corpus Christi door manufacturer required him to operate a tool that, if misused, could cause serious injuries. It was equipped with a guard to protect employees’ hands from harm.
Ruben was caught reaching around the guard. He admitted he regularly did so, even though he knew it was against safety rules. Ruben’s employer fired him, skipping several steps in the progressive discipline system because it considered his violation so serious.
The union took the case to arbitration, where the arbitrator concluded that Ruben broke the safety rules, and that his violations were indeed serious.
But then the arbitrator went further. He compared the violation to other violations and concluded management hadn’t fired everyone who broke serious safety rules. He ordered reinstatement.
The company immediately appealed. It won when the court concluded the arbitrator wasn’t authorized to do anything other than decide whether the rule in question dealt with a serious safety hazard and whether the employee broke the rule. Anything else was outside his authority. Management had the exclusive right to decide what the punishment should be. (Horton Automatics v. The Industrial Division of the Communications Workers of America, et al., No. c-11-381, SD TX, 2012)
Final note: Labor law isn’t a do-it-yourself project. Get expert legal help when negotiating union contracts. An experienced labor attorney can help you preserve as much management authority as possible.
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Updated Aug 16, 2012 at 4:48 PM CDT
According to the Fort Worth Star-Telegram, a 28-year-old former Texas high school teacher is on trial for allegedly having sex with five of her students while she was a teacher.
The woman, who allegedly had sex with four of the students at one time, could face a maximum of 20 years in prison if convicted, according to the Star-Telegram report. The students were each 18 years of age at the time of the alleged sexual encounters, according to the Star-Telegram report.
EL PASO, Texas –
A movement is brewing in Texas to save tax dollars by reforming public retirement plans, and it’s already being met with fierce opposition.
Some of the most vocal opponents are from the public safety sector. In El Paso, firefighters and police officers participate in a pension-style defined-benefit plan when they sign onto their respective departments.
Under a pension-style defined-benefit plan, retirees are promised checks until they die, and the amount is based on years of service. The city is responsible for making sure those payments are made and must make up the difference if there’s a shortfall.
Chief Michael Calderazzo, chairman of the El Paso Firemen & Policemen’s Pension Fund, told ABC-7 there is concern over “talk in Texas about a group out of Houston that wants to do away with defined-benefit plans.”
“What they want to do is convert everyone to a defined contribution, sort of a 401(k)-type hybrid,” he continued.
Both kinds of retirement plans rely on three sources for funding: a percentage contributed from an employee’s paycheck, a percentage contributed from the employer and returns on market investments.
However, in a 401(K)-style defined-contribution plan, the city is not forced to shore up the fund if it’s too low. Retirees are on their own — market conditions and individual contributions ultimately determine how much money is in their plan.
Ron Martin, president of the El Paso Municipal Police Officer’s Association, warns of far-reaching repercussions to retirement changes.
“Leave our pension alone,” Martin said.
He explained police and fire retirees in El Paso are not generally entitled to Social Security and must pay their own medical coverage.
“I guess I [would] have to live off the street or go [to the hospital] and say, ‘I have no money to pay, I’m indigent.’ All that affects El Paso,” said Martin.
Per state law, any potential changes in retirement plans would only affect new, incoming employees. Martin said recruitment would suffer if reforms are made.
“The quality of officers and quality of firefighters that work the streets, you’re not going to have what you have today,” he said.
However, Talmadge Heflin, director of the Texas Public Policy Foundation’s Center for Fiscal Policy, told ABC-7 defined-contribution plans in the style of 401(k)s are a better option for employees.
“They become the owner of the plan,” said Heflin, whose organization is a nonprofit think tank.
Heflin said advantages of 401(k) style defined contribution plans include building on saved funds if employees switch jobs, the ability to retain funds if the retiree dies and greater control over investments.
Plus, he said, pensions are not as secure as some may think.
“If the system goes bankrupt, then their future payments could stop,” said Heflin.
In fact, cities across the country have already gone bankrupt and many more are in trouble — due in part to massively underfunded pension obligations.
Calderazzo said El Paso is in pretty good shape.
“We structured it that way so it wouldn’t be all on one party or the other if the fund is in trouble. Both the employer and employee would fix it together,” said Calderazzo.
That’s thanks to a city council decision to borrow $210 million to shore up fire and police pension funds in 2007 and 2009. Public safety workers also sacrificed to keep the fund afloat.
“They work longer and get less out of it,” said Martin.
Back then, firefighters and police officers raised their contributions. Police now contribute 13.89 percent of their pay to the pension fund, and firefighters contribute 15.28 percent.
Calderazzo said those contribution rates are among the highest in the state — public or private.
The city, in turn, contributes 18.5 percent — the maximum city charter allows.
“It’s a pretty high max,” said Calderazzo. “There are other cities that are at 20, 20 plus because of their funding.”
Watch out if—like many Texas energy-industry employers—you also operate in Louisiana under the terms of a collective bargaining agreement that covers workplace safety. The 5th Circuit Court of Appeals just made life a little harder for you.
Here’s why: Federal law says a collective bargaining agreement that covers workplace safety can preempt state workplace safety rules in states where such rights can be waived. They can in Texas. But that’s not true next door in Louisiana.
As a result, employees working in Texas who sue in federal court over safety violations must show the employer violated the contract. But employees working in Louisiana can choose to sue under contract—that is, under the terms of the collective bargaining agreement or tort law—using state safety rules.
Recent case: Herbert McKnight sued Dresser Inc., alleging the company didn’t protect him from hearing loss.
The lawsuit was filed in Louisiana state court as a tort claim under state workplace safety laws.
Dresser sought to move the case to federal court, alleging the union contract pre-empted state law claims. It said the contract was McKnight’s only remedy.
The 5th Circuit Court of Appeals disagreed. It concluded that Louisiana didn’t allow employees to waive state workplace safety laws, allowing McKnight to sue in state court if he chose. (McKnight, et al., v. Dresser, Inc., et al., No. 11-30072, 5th Cir., 2012)
Final note: Before sending employees to work in a neighboring state, check to see if different employment laws will apply.
via Operating in Texas and Louisiana? Don’t rely on union contract to handle safety — Business Management Daily: Free Reports on Human Resources, Employment Law, Office Management, Office Communication, Office Technology and Small Business Tax Business Management Daily.