Lotto Madness Continues in Court

Judge recommends denying motion for summary judgment in Texas Lottery Commission whistle-blower suit

The lawsuit over secrets, lies, and audiotapes concerning a "phantom" disaster recovery facility at the Texas Lottery Commission remains alive. On Nov. 17, U.S. Magistrate Judge Andrew Austin issued a trenchant recommendation to deny a motion for summary judgment filed by Gary Grief, acting director of the Lottery Commission, in the whistle-blower lawsuit brought by former employee Shelton Charles – in part, Austin concluded, because Grief's arguments for dismissal were just plain "odd." Charles is suing Grief and the commission, claiming he was fired in retaliation for reporting malfeasance at the Lottery Disaster Recovery/Business Resumption site and racism in the workplace.

Charles was fired from his job as a systems analyst on Nov. 4, 2005, two days after sending an e-mail to Texas Reps. Kino Flores, D-Palmview, and Corbin Van Arsdale, R-Tomball, alleging, in part, that the commission was improperly spending millions on its disaster recovery site, a project created to protect essential electronic information in an emergency. Agency officials, Charles charged, knew the site was was not certified operational, but continued funding the project as if it were already up and running. "Management has been hiding this fact through lies and the manipulation of information," Charles wrote. Two days later Grief personally fired Charles – ostensibly for insubordination because Charles declined to answer questions during a recorded interview with agency officials, instead asking for written questions.

In his recommendation to Justice Lee Yeakel, who would preside over any trial, Austin wrote that Charles had become "frustrated with … misuse of government funds and (in his view) its languishing Recovery Site"; that "racial discrimination was rampant at the Commission" – in the form of higher salaries, preferential treatment, and promotions for whites; and that Charles witnessed lottery brass discussing "schemes … to avoid [producing] documents [requested by legislators and the press] concerning the Disaster Recovery Site." Seeking to have Charles' suit dismissed, Grief argued that Charles' e-mail to legislators was simply a work-related communication – part of the normal course of business – so it didn't really qualify as a protected whistle-blower report, meaning in turn that Grief should be immune to any allegation that Charles' termination was retaliatory. Grief denied any involvement in events leading to Charles' termination – noting that he wasn't even present when Charles was questioned.

Not surprisingly, Austin wasn't buying either argument: "The Court finds it hard to swallow" that Charles' regular job duties would include "reporting such things as his employer, the Commission, misspending (or misappropriating) millions of dollars on a phantom [DRS] and hiding this information from the public," Austin wrote. And Grief's contention that he was absent during events resulting in Charles' termination is "rather odd," Austin opined. "It simply doesn't matter that Grief was not in [Charles'] office" when officials were questioning him. Finally, Charles' communication to legislators was protected speech because it regarded a matter of public concern, Austin noted, citing a 5th U.S. Circuit Court of Appeals opinion that "there is perhaps no subset of matters of public concern more important than bringing official misconduct to light."

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Andrew W. Austin, Shelton Charles, Texas Lottery Commission, Gary Grief, Texas Whistleblower Act

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