Runge v. Raytheon E-Systems, Inc.

¶1concurring.

¶2I concur in affirming the summary judgment in favor of Raytheon. I write to urge the Supreme Court to address the need for a common-law cause of action on “retaliation” for reporting illegal activity.

¶3These facts do not fit within the Sabine Pilot exception to the at-will doctrine. Sabine Pilot Service, Inc. v. Hauck, 687 S.W.2d 733 (Tex.1985). However, as has been noted, other states protect private sector employees who report illegal activity in the workplace. Winters v. Houston Chronicle Publ’g Co., 795 S.W.2d 723, 725 n. 3 (Tex.1990). It is surprising that, since the decision in Sabine Pilot, our Supreme Court has not adopted an exception to the at-will doctrine for employees who report illegal or fraudulent activity to their supervisors. It is ironic that an employee may have protection under Sabine if he or she refuses to perform an illegal task, and may have State and federal statutory protection under a “whistleblower” statute if the employee reports illegal activity to the proper authorities,1 but is unprotected when the report of illegal or fraudulent conduct is made to the person who represents the employer’s interest-a supervisor. After all: “Employees are the first to learn of activities in the workplace that may have an adverse effect upon the public and are in the best position to bring to a halt threatening conduct before irreversible damage is done.” Id. at 729 (Doggett, J. concurring).

¶4Our continued refusal to grant such employees protection requires them to “condone, by remaining silent, activities in the workplace that have a probable adverse effect upon the public.” Id. at 725. “[N]o societal interest can be advanced that would support an employer’s retaliation against an employee who reported activities harmful to the public. In this situation, judicial failure to modify the law constitutes neither restraint nor neutrality, but rather an active participation in perpetuating injustice.” Id. at 726.

¶5The Court should “craft a narrow exception that protects the interests of responsible, law-abiding employers while holding *568accountable those whose activities threaten the public interest.” Austin v. Healthtrust, Inc., 967 S.W.2d 400, 403 (Tex.1998) (Gonzalez, J. concurring) (citing Winters, 795 S.W.2d at 726 (Doggett, J. concurring)).