Thursday, August 25, 2011

Whistleblowers must initiate grievance process at government agency prior to filing suit

Texas Whistleblower Act’s grievance initiation requirement
As a prerequisite to initiating suit under the Whistleblower Act, a claimant must first “initiate action under the grievance or appeal procedures” of her governmental employer. Tex. Gov’t Code Ann. § 554.006(a) (West 2004).
Grievance initiation requirement is deemed jurisdictional, but exhaustion of administrative remedies is not required prior to filing whistblower action in court  
This requirement is a jurisdictional prerequisite, such that compliance is essential to the trial court’s jurisdiction over a whistleblower action. Barth, 178 S.W.3d at 161–62.  Section 554.006 does not require a claimant to exhaust her administrative remedies before filing suit; instead, she is only required to initiate the grievance or appeal and allow the grievance authority sixty days in which to render a decision. See Univ. of Tex. Med. Branch v. Barrett, 159 S.W.3d 631, 632 (Tex. 2005); Hitchcock Indep. Sch. Dist. v. Walker, No. 01-10-00669-CV, 2010 WL 5117912 (Tex. App.—Houston [1st Dist.] Dec. 16, 2010, no pet.) (mem. op.).
After the grievance authority issues a decision, or after sixty days if no decision has been issued, then the claimant has two choices: she may either exhaust the remedies available to her under the employer’s grievance procedure or terminate the grievance and file suit. See Tex. Gov’t Code Ann. § 554.006(d). The option she chooses determines the time period within which her suit must be filed. See id. §§ 554.006(d), 554.005.
SOURCE: Houston Court of Appeals - 01-10-00289-CV - 8/18/11 (whistleblower plaintiff's suit dismissed for failure to follow grievance requirement)  

We hold that a claimant does not properly initiate a grievance when she communicates her complaints but conditions her request for appeal on the provision of a grievance process that she knows to be different than the process in the school’s grievance procedure and declines to initiate a grievance under the school’s existing procedure after it has been provided to her. See Ruiz, 2004 WL 1171666, at *7 (holding claimant did not initiate grievance procedure by making school aware of her whistleblower claims when school informed her of its grievance procedure and claimant failed to take further action); cf. Van Indep. Sch. Dist. v. McCarty, 165 S.W.3d 351, 353–54 (Tex. 2005) (“We also decline to adopt our dissenting colleague’s view that administrative procedures can be ignored if a creative applicant convinces a court that some other procedure was just as good. An employee’s letter, phone call, or chance conversation with a member might give a board ‘the first chance to consider his grievance,’ but
          3.       Summary
There were no disputed facts in this case: the parties agree on what communications were made and when. The dispute here is over the legal import of those communications. Specifically, did the July 22 letter initiate the school’s grievance procedure? We hold that the evidence—the grievance policy, the July 22 letter, the July 27 letter, the August 3 letter, and the affidavit—satisfied the school’s initial burden of proving that Pickering did not initiate a grievance with respect to its July 9 corrective action plan or Pickering’s August 3 resignation. See Miranda, 133 S.W.3d at 228; Porretto, 251 S.W.3d at 711. The burden then shifted to Pickering to come forward with evidence raising an issue of fact as to whether she initiated a grievance under the school’s grievance procedure. See Miranda, 133 S.W.3d at 228; Patterson, 251 S.W.3d at 711. Pickering presented no evidence, and we find no evidence in the record, raising a fact question as to whether she “initiate[d] action under the [school’s] grievance or appeal procedures.” Tex. Gov’t Code Ann. § 554.006(a). The trial court therefore erred in denying the school’s plea to the jurisdiction. See Miranda, 133 S.W.3d at 228; Patterson, 251 S.W.3d at 711.
We hold that the evidence before the trial court on the school’s plea to the jurisdiction conclusively established that Pickering failed to initiate a grievance in accordance with the school’s grievance procedure. Because initiation of a grievance or appeal is a jurisdictional prerequisite to suit under the Whistleblower Act, the trial court erred in denying the school’s plea to the jurisdiction. We reverse the trial court’s order and dismiss Pickering’s claims against the school for lack of jurisdiction.
SOURCE: Houston Court of Appeals - 01-10-00289-CV - 8/18/11

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