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Friday, December 6, 2019

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Court rules on whistleblower appeal


The Texas Court of Appeals ruled on Aug. 25 that UH retaliated against a tenured Conrad Hilton College of Hotel Management professor, violating the Whistleblower Act.

Stephen Barth had reported the mishandling of funds by past UH dean Allen Stutts, who was Barth’s supervisor.

In the appeal case, UH said that Barth did not file his grievances of retaliation by Stutts and UH in a timely manner, or to a law enforcing authority under the UH System Administrative Memorandum.

UH contested that the SAM is not a law that can be used under the Whistleblower Act. Chief Audit Executive Don Guyton, who was present when Barth originally reported Stutts, testified that policies are set by UH which are then enforced by the Board of Regents.

With Guyton’s testimony taken into account, the court found that because UH is a legislatively-created university governed by a Board of Regents, UH has the power to enforce laws adopted from the SAM.

Guyton also testified that Barth had reported Stutts’ conduct to Randy Harris, then the chief financial officer for UH. At the time, Harris would have been authorized to take action if the rules were violated under the SAM.

“The rules for whistleblowers here on campus or for making a complaint are pretty ambiguous and difficult to follow,” Barth said. “UH, in my case, uses that ambiguity to try to preclude people from bringing their claim forward.”

Under the Whistleblower Act, employees must “file a grievance no later than the 90th day after the date on which the adverse personnel action occurred or when the employee discovered through reasonable diligence that the action taken was because of the report.”

The Appeals Court found that Barth did not file his first grievance of retaliation in a timely manner, but he did the second time.

UH also appealed that insufficient evidence was used to legally support the trial jury’s judgment. The Appeals Court overruled, on the grounds that the trial jury did not have to specify which grievance UH violated. Moreover, UH did not challenge Barth’s second grievance of UH retaliating against him for reporting Stutts.

“That’s been the most disappointing part, having people in upper administration attack me both personally and professionally,” Barth said. “I’m hopeful that the University now would respond differently. Let’s work together to find common solutions rather than adversarial situations where we personally attack each other.”

Barth will not receive additional damages from the University. The opinion by the Appeals Court will be upheld unless UH decides to appeal again.

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