Thursday, July 7, 2011

Claim under the Whistleblower Act: Procedural requirements & limitations period


The Texas Whistleblower Act requires 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).


Pursuant to section 554.005 of the Act, an employee who seeks relief must sue no later than the 90th day after the date on which the alleged violation occurred or was discovered through reasonable diligence, except as provided in section 554.006. TEX. GOV’T CODE ANN. § 554.005 (Vernon 2004).


Section 554.006 provides as follows: (a) A public employee must initiate action under the grievance or appeal procedures of the employing state or local governmental entity relating to suspension or termination of employment or adverse personnel action before suing under this chapter. (b) The employee must invoke the applicable grievance or appeal procedures not later than then 90th day after the date on which the alleged violation of this chapter: (1) occurred; or (2) was discovered by the employee through reasonable diligence. (c) Time used by the employee in acting under the grievance or appeal procedures is excluded, except as provided by Subsection (d), from the period established by Section 554.005. (d)

If a final decision is not rendered before the 61st day after the date procedures are initiated under Subsection (a), the employee may elect to: (1) exhaust the applicable procedures under Subsection (a), in which event the employee must sue not later than the 30th day after the date those procedures are exhausted to obtain relief under this chapter; or (2) terminate procedures under Subsection (a), in which event the employee must sue within the time remaining under Section 554.005 to obtain relief under this chapter. TEX. GOV’T CODE ANN. § 554.006 (Vernon 2004).

SOURCE: Houston Court of Appeals - 01-10-00485-CV - 7/7/11

The record shows that [ Whistleblower Plaintiff ] initiated [ Houston ISD ]’s grievance procedure in May 2005. She filed an amended grievance in September 2005. A final decision was not rendered in the procedure within 61 days. See id. § 554.006(d). [ Whistleblower Plaintiff ], however, pursued the grievance procedure to a level three decision by [ Houston ISD ]’s board of trustees. While she pursued the grievance procedure, the limitations period was tolled. See id. § 554.006(c). The board of trustees issued its decision against [ Whistleblower Plaintiff ] on June 15, 2006. Under Chapter 21 of the Education Code, [ Whistleblower Plaintiff ] had 20 days to appeal the board’s decision to the Commissioner of Education. See TEX. EDUC. CODE ANN. § 21.301(a) (Vernon 2006). As discussed supra, [ Whistleblower Plaintiff ] did not appeal the decision. By not appealing to the Commissioner, [ Whistleblower Plaintiff ] chose to abandon her administrative remedy and terminate the grievance procedure. Assuming the broadest reading of the record and statute, the limitations period ran in October 2006, that is, 90 days from when [ Whistleblower Plaintiff ] terminated the grievance procedure. See TEX. GOV’T CODE ANN. § 554.006(d)(2); see also id. § 554.005. [ Whistleblower Plaintiff ] did not file suit until March 2007—well outside the limitations period.[8] See id. § 554.005.

We conclude that [ Houston ISD ] met its summary-judgment burden to conclusively show that [ Whistleblower Plaintiff ]’s whistleblower claim was barred by limitations. See TEX. R. CIV. P. 166a(c). [ Whistleblower Plaintiff ] did not meet her corresponding burden to raise a genuine issue of material fact precluding summary judgment. Thus, we hold that the summary judgment is properly granted in favor of [ Houston ISD ] with regard to [ Whistleblower Plaintiff ]’s whistleblower claim. We overrule [ Whistleblower Plaintiff ]’s two issues to the extent they challenge the trial court’s summary judgment with respect to her whistleblower claim.

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