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Citing a flaw in the jury charge, an Austin appeals court overturned a $195,000 award to a man who claimed he was fired by a Texas A&M University research team in 1997 for blowing the whistle on alleged wrongdoing by a key member of the team. In a Nov. 2 decision, the 3rd Court of Appeals reversed the judgment in Texas A&M University, et al. v. William H. Chambers and remanded the case for a new trial. The court held that Judge Paul Davis of Austin erred by including in the jury charge the statutory presumption of retaliation if an adverse personnel action is taken against a public employee within 90 days after he reports a violation of law. In addition, the court said it was an error for Davis to award prejudgment interest on Chambers’ lost future earnings and to compound such interest annually. The judge’s instruction regarding presumption tracked the language in the Texas Whistleblower Act, the court says in the opinion written by Justice Bea Ann Smith. Chief Justice Marilyn Aboussie and Justice Jan Patterson also served on the panel. “The court’s charge improperly shifted the burden [of proof] to A&M, making them disprove that Chambers was the victim of retaliation,” says Heather Browne, a spokeswoman for the Office of the Attorney General, which represents the university in the case. Bryan Cantrell, Chambers’ lawyer, disagrees and says the jury charge put the burden of proof on the plaintiff. The ruling is a disappointment to Cantrell. “That breaks my heart that they did that,” says Cantrell, an associate at West, Webb, Allbritton, Gentry & Rife in College Station. But Cantrell isn’t throwing in the towel on the award given by a jury after a five-day trial last year. “We’re going to take it up to the [Texas] Supreme Court, I can tell you that now,” he says. PAPER TRAIL ALLEGATIONS Chambers, former lab manager of the Texas A&M Geochemical and Environmental Research Group, filed the suit against the university, the research group, and the A&M College of Geosciences and Maritime Studies. In the suit, Chambers alleged he was fired in April 1997 in retaliation for a report he made to the university’s internal audit department. The opinion notes that Creosote Council II, a trade association for producers of the wood-pesticide creosote, hired the research group in 1992 to analyze samples of manufactured creosote and submit the findings to the federal Environmental Protection Agency to get the product registered and licensed. The research group agreed to conduct the study in compliance with the good-laboratory practice regulations of the Federal Insecticide Fungicide and Rodenticide Act and to certify its compliance in writing to the council. According to the opinion, an executive at the Creosote Council became concerned about the research group’s lab practices in the summer of 1996, when the scientists were working on the last stages of the study covered by the contract. The council then hired Kristin Hoover, an independent auditor, to evaluate the group’s work. The opinion says Hoover found that the research group had failed to comply with the FIFRA regulations and that a supervisor with the group untruthfully certified to the Creosote Council that the research had been conducted in compliance with the standards. Hoover’s findings formed the basis of the suit, the opinion notes. Kathy Harris, spokeswoman for the Texas A&M University System, says the institution had disputed Hoover’s findings but ultimately entered into a settlement with the Creosote Council. Cantrell says Chambers became concerned that fraud had been committed and reported his concerns to the internal audit department at Texas A&M in August 1996. Over the next several months, Chambers lost his signatory authority over the accounts that he supervised and was required to meet weekly with his supervisor to discuss details of his assignments even though he was in a managerial position, the opinion says. Chambers alleges that his responsibilities were whittled away and that he ultimately was terminated in April 1997 because of the report he made to the internal audit department. Texas A&M contends that his supervisor was unaware of Chambers’ disclosures to the audit department until after the suit was filed and that he was fired because of alleged continuing problems with his research projects. The opinion says that at trial, Texas A&M presented memos reflecting the concerns that Chambers’ supervisor had about his work in the fall of 1996 and spring of 1997. A&M also presented evidence that Chambers’ supervisor had requested a raise for him during the period when the supervisor allegedly harbored resentment against Chambers for reporting his concerns to the internal auditors. Cantrell alleges that A&M supervisors are trained on how to get around the whistleblower law — including how to fire employees and how to prepare memos on such actions. He says the presumption of retaliation was included in the judge’s charge to the jury to show why A&M supervisors would have waited 91 days after Chambers voiced his concerns to the audit department before they started the paper trail to document his alleged poor job performance. Delmar Cain, general counsel for the Texas A&M University System, disputes Cantrell’s allegations that A&M employees are trained on how to avoid the whistleblower statute. “There was no evidence of that that was in the record,” he says. Cain alleges that Chambers’ lawyers sent a letter on the presumption of retaliation instruction to Davis in an ex parte letter marked “for your eyes only.” The judge forwarded a copy of the letter to lawyers representing A&M, he says. The argument presented in the letter supported the defective jury instruction, Cain says. “It wasn’t an ex parte communication,” says Mark Shomaker, Cantrell’s co-counsel. Shomaker, also an associate at West, Webb, Allbritton, Gentry & Rife, says the judge had to leave court early one day to attend a funeral and had requested that the plaintiff’s lawyers fax to his home proposed amendments to the charge and the proposed instruction. The judge was also sent, at his request, explanatory issues, Shomaker says. That part of the text was marked for the judge’s confidential consideration because it included evidence not yet presented at trial, he says.

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