Texas Causes of Action & Affirmative Defenses

Texas Causes of Action & Affirmative Defenses

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Wednesday, October 12, 2011

Texas Whistleblower Act: Is an internal grievance always required prior to a whistle-blower lawsuit?


Initiation of internal grievance process with governmental employers generally required prior to lawsuit, but there may be rare exceptions....

The Texas Whistleblower Act provides that, "[a] state or local governmental entity may not suspend or terminate the employment of, or take other adverse personnel action against, a public employee who in good faith reports a violation of law by the employing governmental entity or another public employee to an appropriate law enforcement authority." TEX. GOV’T CODE ANN. § 554.002(a). A governmental entity’s sovereign immunity is waived for violation of the Act. Id. at § 554.0035.


A plaintiff must allege the following elements of a claim under the Act: (1) she is a public employee; (2) she acted in good faith in making a report; (3) the report involved a violation of law; (4) the report was made to an appropriate law enforcement authority; and (5) she suffered retaliation as a result of making the report. County of Bexar v. Steward, 139 S.W.3d 354, 357-58 (Tex. App.—San Antonio 2004, no pet.).


The employee bears the burden of proof, except that if the suspension, termination or adverse personnel action occurs within 90 days of the employee’s report, then a rebuttable presumption arises that the employer’s action was because the employee made the report. TEX. GOV’T CODE ANN. § 554.004(a). It is an affirmative defense that the employer would have taken the action against the employee based solely on information, observation, or evidence unrelated to the employee’s report. Id. a § 554.004(b).
As a statutory prerequisite to the filing of suit under the Act, an employee must "initiate action under the grievance or appeal procedures" of the employer within 90 days after the employer’s alleged violation of the Act. Id. at § 554.006(a). The purpose of this prerequisite is to give the employer "the opportunity to correct its errors by resolving disputes before being subjected to the expense and effort of litigation." City of San Antonio v. Marin, 19 S.W.3d 438, 441 (Tex. App.—San Antonio 2000, no pet.), disapproved on other grounds by 159 S.W.3d 631 (Tex. 2005) (citing House Research Organization, Bill Analysis, Tex. H.B. 1405, 71st Leg., R.S. (1989)); Univ. of Tex. Med. Branch v. Hohman, 6 S.W.3d 767, 774 (Tex. App.—Houston [1st Dist.] 1999, pet. dism’d w.o.j.).   


Section 554.006 does not require exhaustion of the employer’s grievance or appeal procedures, but merely timely initiation, before suit may be filed. Univ. of Tex. Med. Branch v. Barrett, 159 S.W.3d 631, 632 (Tex. 2005) (recognizing effect of 1995 amendment that requires only initiation of grievance by employee, not full exhaustion, and a 60 day waiting period for employer’s final decision on grievance; holding if employee’s suit is filed prematurely, proper remedy is abatement).
The statutory prerequisites to filing suit under the Act are mandatory and jurisdictional. Smith v. Univ. of Tex. Sw. Med. Ctr. of Dallas, 101 S.W.3d 185, 189 (Tex. App.—Dallas 2003, no pet.). However, the purpose of the Act is remedial and it should be liberally construed in favor of jurisdiction. Town of Flower Mound v. Teague, 111 S.W.3d 742, 752 (Tex. App.—Fort Worth 2003, pet. denied); Fort Bend Indep. Sch. Dist. v. Rivera, 93 S.W.3d 315, 319 (Tex. App.—Houston [14th Dist.] 2002, no pet.).
SOURCE: SAN ANTONIO COURT OF APPEALS - 04-11-00113-CV - 10/12/11
Leyva v. Crystal City, Texas (Tex.App.- San Antonio, 2011, no pet. h.)
Appeal from 293rd Judicial District Court of Zavala County

Conclusion. Because it is unclear whether the City’s grievance procedure applies to terminated employees, we hold the trial court erred in granting the City’s plea to the jurisdiction based on Leyva’s failure to initiate a grievance under the City’s procedures after her termination. See Miranda, 133 S.W.3d at 227-28. Because this issue is dispositive of the appeal, we need not reach Leyva’s second issue. Accordingly, the trial court’s order granting the City’s plea to the jurisdiction is reversed, and this cause is remanded to the trial court for further proceedings consistent with this opinion.

SOURCE: SAN ANTONIO COURT OF APPEALS - 04-11-00113-CV - 10/12/11

RELATED CAUSES OF ACTION: Sabine Pilot wrongful termination claim against private employer (fired for refusing to commit illegal act); OTHER PAGES ON WHISTLEBLOWERS: Texas Supreme Court Whistleblower Decisions