Opinion
No. 05-19-01290-CV
08-27-2020
Fernando HERRERA, Appellant v. DALL AS INDEPENDENT SCHOOL DISTRICT, Appellee
OPINION
Fernando Herrera, a teacher terminated by Dallas Independent School District (DISD) at the end of his probationary contract, appeals an order granting DISD's plea to the jurisdiction on his Whistleblower Act claim. See TEX. GOV'T CODE §§ 554.001 –.010. We reverse and remand because a fact issue exists on whether Herrera appropriately initiated a pre-suit grievance before filing suit, and thus on the legal question of whether DISD's immunity has been waived.
See id. § 554.006.
BACKGROUND
On June 15, 2018, Herrera sued DISD, alleging DISD terminated him in violation of the Whistleblower Act in retaliation for complaints he made to the Texas Department of Family and Protective Services, Division of Child Protective Services (CPS) regarding suspected child abuse by other DISD teachers.
See Tex. Gov't Code § 554.002(a) (prohibiting state or local governmental entities from suspending, terminating, or taking 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).
In its answer, DISD asserted the trial court lacked subject matter jurisdiction over Herrera's claims and it was immune from suit and liability because Herrera failed to fulfill certain conditions precedent. Specifically, DISD claimed Herrera failed to comply with government code section 554.006 and "failed to provide [it] notice of a potential whistleblower claim regarding the separation of his employment." See TEX. GOV'T CODE § 554.006. Later, DISD filed two pleas to the jurisdiction, the first of which contained its assertion regarding section 554.006.
According to his petition, Herrera began working for DISD as a bilingual elementary school teacher at McShan Elementary School on May 29, 2013. During his employment, he made various complaints regarding suspected child abuse by other teachers, including an anonymous report in May 2015 and complaints to DISD and to CPS in the spring of 2017.
Herrera's petition does not indicate to whom this anonymous report was made.
His petition alleges he made a good faith report of a violation of law by reporting to CPS that he had witnessed a teacher inappropriately touching a student and that he had been informed that a parent suspected another teacher had inappropriately touched another student. He alleges these reports involved an actual violation of law, were made to CPS, an appropriate law enforcement authority, and that he was terminated and damaged as a direct result of these reports.
Herrera also alleges that within a month of his making the reports in 2017, DISD placed him on administrative leave, later notified him he was being terminated for cause, withdrew that for-cause decision before his administrative hearing occurred, and ultimately notified him that he was being terminated at the end of the school term because DISD was not renewing his contract and had determined it was in the district's "best interest" to take that action.
Sections 21.103 and 21.104 of the Texas Education Code govern a probationary teacher's rights to an administrative hearing regarding a termination and make a distinction between terminations occurring at the end of a school year and those occurring during the school year. Our references to DISD's withdrawal of its for-cause decision to terminate Herrera before his administrative hearing refer to the applicable processes under sections 21.104 and 21.1041, which are not at issue here. See Tex. Educ. Code §§ 21.104, 21.1041. Thus, Herrera's prior grievance and request for a hearing under section 21.1041 do not impact any issues before us. See Tex. Educ. Code § 21.1041.
In its first plea to the jurisdiction, DISD asserted Herrera failed to initiate DISD's grievance process under its DGBA (Local) policy before filing suit. See TEX. GOV'T CODE § 554.006. In his pleadings, Herrera did not allege he initiated any such grievance process. Instead, Herrera alleged he was informed that "since he held a probationary contract he has no rights to engage in the grievance procedure" and "[t]herefore, all conditions precedent ... have been satisfied and fulfilled."
DISD filed two pleas to the jurisdiction. The trial court heard and decided only the first one, which was filed on August 14, 2019. The matters presented in DISD's other plea are not at issue in this appeal.
DISD submitted certain evidence in connection with its plea, including its DGBA (Local) policy, which allows probationary teachers to submit certain grievances, including those regarding end-of-term terminations and whistleblower violations, and which states employees have a certain amount of time to submit grievances, starting when they "first knew or, with reasonable diligence, should have known of the decision or action giving rise to the grievance or complaint." DISD also submitted evidence of various letters DISD sent Herrera regarding the status of his employment and various grievances Herrera filed.
While DISD's DGBA (Local) policy generally gives employees fifteen days to act, for whistleblower complaints, employees may initiate DGBA (Local) grievances "within the time specified by law." As indicated previously, government code section 554.006(b) gives employees up to ninety days.
In a letter to Herrera dated December 11, 2017, DISD stated, "You are hereby notified that the Dallas Independent School District (the "District") is recommending that your employment be terminated, for good cause, pursuant to Texas Education Code § 21.104 and [DISD] Board Policies DF (LOCAL), DFAA (LEGAL) and FL (LOCAL)." The letter told Herrera if he wanted to appeal that decision, he would need to submit a written request to the Texas Education Agency's (TEA's) Commissioner of Education within fifteen days from the date of the letter. The letter also advised him that once a timely request was received, the TEA would schedule a hearing before an independent hearing officer. Finally, the letter warned him if he failed to make a timely request for a hearing, "the termination decision is final."
Herrera submitted a timely written request appealing the December 11, 2017 termination decision to the TEA. He also submitted a DISD grievance. After receiving his grievance, a DISD representative told Herrera by email, "You cannot go through the Grievance and Appeal process regarding your termination since you are a Chapter 21 employee. That being said, you should go through the TEA appeal process." In response to Herrera's written TEA appeal, the TEA assigned a case number, appointed an independent hearing examiner, and scheduled an administrative hearing on March 20, 2018, regarding his termination.
The March 20, 2018 hearing never occurred. Instead, before the hearing and because of what DISD describes as a "business decision," DISD withdrew its December 11, 2017 termination letter to Herrera, moved to dismiss his TEA appeal, and "chose to pursue termination of [Herrera's] probationary employment contract at the end of the contract period at the conclusion of the 2017-2018 school year."
From a Chapter 21 standpoint, by doing this, DISD made it impossible for Herrera to obtain a TEA administrative hearing regarding his termination. See Tex. Educ. Code § 21.103 (allowing a district's board of trustees to terminate a probationary contract teacher "at the end of the contract period if in the board's judgment the best interests of the district will be served by terminating the employment" and stating, "The board's decision is final and may not be appealed."); compare Tex. Educ. Code § 21.104 (allowing termination of probationary contract teacher at any time for good cause as defined therein); id. § 21.1041 (stating probationary contract teacher "may be discharged at any time for good cause as determined by the board of trustees," but providing that the teacher "is entitled to a hearing as provided under Subchapter F, if the teacher is protesting proposed action under Section 21.104").
On March 20, 2018, the same date on which Herrera's TEA hearing was originally scheduled, DISD sent Herrera a letter entitled "Excess Notification Letter" that stated, in part:
School districts determine their staffing needs based on student enrollment, and decreasing enrollment or school consolidations can often create an overabundance of staff, typically referred to as excess employees.... We regret to inform you that your position has been identified as excess for the 2018–2019 school year. We appreciate your continued service at your current campus until the end of the 2017–2018 school year.
Then, on March 29, 2018, DISD sent Herrera a letter entitled "Notice of Intent to Recommend Non-renewal or Termination at the End of the Contract Term" that told Herrera DISD's "[s]uperintendent ... intends to recommend, for approval, to the Board of Trustees, pursuant to Texas Education Code 21.103 and District Board Policies DFAB (LEGAL) or DFBB (LEGAL/LOCAL), that it is in the best interests of the District that your contract end at the conclusion of the contract period."
DISD's Board of Trustees approved the superintendent's recommendation on April 26, 2018, in a meeting that began at 6:00 p.m. and adjourned at 7:43 p.m., according to the meeting minutes DISD provided in its evidence. DISD notified Herrera of the Board's vote and termination in a certified letter that Herrera received May 4, 2018, nine days later. We discuss that letter further below.
Also on April 26, 2018, the same night as the Board's vote, Herrera submitted a grievance under DISD's DGBA (Local) grievance system, and DISD confirmed its receipt. Specifically, at 7:38 p.m., DISD's "notification system" sent Herrera a "Grievance Submission Confirmation Email" with a message informing Herrera that his "[g]rievance has been submitted" and including the information Herrera included in his grievance. As the dissent notes, his grievance included March 29, 2018, as the "incident date," but it also listed "termination" under the "grievance type" and included several statements communicating his belief DISD was violating the Whistleblower Act in its decision to terminate him. Specifically, Herrera's April 26, 2018 grievance stated:
My notice of intent to recommend non-renewal or termination at the end of the contract term for best interest/excess staff has been in retaliation for making good faith reports to the appropriate law enforcement authorities on other employees that have violated the law.[ ]
His "best interest/excess staff" phrase is consistent with the phrasing DISD used in its March 20, 2018 and March 29, 2018 letters.
He also stated, "I have claims of harassment, discrimination, whistleblower violations, retaliation, breaching contract, and wrongful termination. DISD is in clear violation of The Whistleblower Act."
Herrera's only claim in this lawsuit is a Whistleblower Act claim.
The next day, in a letter dated April 27, 2018, DISD informed Herrera it had "closed" his grievance because the March 29, 2018 notice to which he referred was not a termination letter but was instead a "courtesy notice of a proposed future action" and "thus a grievance cannot be submitted." That letter also told him that if he receives a termination letter in the future he "may submit an appeal at that time."
However, in the certified letter from DISD Herrera received on May 4, 2018, DISD told Herrera its decision "is final ... and may not be appealed" and did not mention DISD's DGBA (Local) grievance policy. Herrera did not submit an additional grievance after he received that letter.
The letter stated, on DISD letterhead:
Probationary Teacher Notice of Termination
April 26, 2018
Fernando Herrera
[Address & Employee ID number redacted]
YOU ARE HEREBY NOTIFIED that the Board of Trustees, at a lawfully called meeting on April 26, 2018, voted that it is in the best interests of the District that your probationary contract be terminated at the end of the 2017–18 school year, pursuant to Texas Education Code Section 21.103(a) and DISD Board Policy DFAB (Legal). In accordance with the law, the Board's decision to terminate a probationary employee at the end of a contract period is final and may not be appealed.
| /s/ Dan Micchiche, President | Date: April 26, 2018 |
| Board of Trusteees | |
| Dallas Independent School District |
cc: Karry Chapman, Chief of Human Capital Management
Jack Elrod, General Counsel
Herrera filed suit on June 15, 2018, less than ninety days after his April 26, 2018 grievance. More than a year later, on August 14, 2019, DISD filed the plea to the jurisdiction at issue here. The trial court conducted a hearing and granted DISD's plea, dismissing Herrera's claim for want of jurisdiction. Herrera timely appealed.
ANALYSIS
Standard of Review
Governmental units, including school districts, are immune from suit unless the state waives immunity. Alamo Heights Indep. Sch. Dist. v. Clark , 544 S.W.3d 755, 770 (Tex. 2018). Immunity from suit may be asserted through a plea to the jurisdiction that challenges the pleadings, the existence of jurisdictional facts, or both. Id. We review a trial court's disposition of a plea to the jurisdiction de novo. City of Houston v. Houston Mun. Emps. Pension Sys. , 549 S.W.3d 566, 575 (Tex. 2018).
Here, where DISD challenged the existence of jurisdictional facts with supporting evidence, our standard of review mirrors that of a traditional summary judgment, requiring Herrera to raise a genuine issue of material fact to overcome DISD's challenge to the trial court's subject matter jurisdiction. See Alamo Heights , 544 S.W.3d at 771. We take as true all evidence favorable to Herrera and indulge every reasonable inference and resolve any doubts in his favor. Id. However, we cannot disregard evidence necessary to show context or evidence and inferences unfavorable to him if reasonable jurors could not. Id.
The Whistleblower Act contains an immunity waiver, stating:
A public employee who alleges a violation of this chapter may sue the employing state or local governmental entity for the relief provided by this chapter. Sovereign immunity is waived and abolished to the extent of liability for the relief allowed under this chapter for a violation of this chapter.
The Act also contains certain prerequisites to suit, such as a requirement to "initiate action under the [state or local government employer's] grievance or appeal procedures before suing," see id. § 554.006(a), and a requirement to sue within ninety days of the date the employer's violation "occurred or was discovered by the employee through reasonable diligence," except where the deadline is extended as provided in section 554.006, see id. § 554.005. Employees who must initiate action under their employer's applicable grievance or appeal procedures under section 554.006 must "invoke" those procedures within that same ninety day period. See id. § 554.006(b).
Recently, in a Whistleblower Act case involving section 554.005's requirement to sue within ninety days, the Texas Supreme Court confirmed that "[w]hen a statutory prerequisite to suit is not met, ‘whether administrative (such as filing a charge of discrimination) or procedural (such as timely filing a lawsuit),’ the suit may be properly dismissed for lack of jurisdiction." City of Madisonville v. Sims , No. 18-1047, ––– S.W.3d ––––, ––––, 2020 WL 1898540, at *3 (Tex. Apr. 17, 2020) (quoting Prairie View A & M Univ. v. Chatha , 381 S.W.3d 500, 515 (Tex. 2012) ).
Importantly, section 554.006's requirement that an employee initiate a grievance or appeal under a governmental entity's procedure is " ‘to afford the governmental entity with the opportunity to investigate and correct its errors and to resolve disputes before incurring the expense of litigation.’ " Fort Bend Indep. Sch. Dist. v. Gayle , 371 S.W.3d 391, 395 (Tex. App.—Houston [1st Dist.] 2012, pet. denied) (quoting W. Houston Charter Sch. Alliance v. Pickering , No. 01-10-00289-CV, 2011 WL 3612288, at *8 (Tex. App.—Houston [1st Dist.] Aug. 18, 2011, no pet.) (mem. op.) ); Aguilar v. Socorro Indep. Sch. Dist. , 296 S.W.3d 785, 789 (Tex. App.—El Paso 2009, no pet.) (same, quoting City of San Antonio v. Marin , 19 S.W.3d 438, 441 (Tex. App.—San Antonio 2000, no pet.), disapproved of on other grounds by Univ. of Tex. Med. Branch v. Barrett , 159 S.W.3d 631, 633 n.7 (Tex. 2005) (per curiam) ); City of Fort Worth v. Shilling , 266 S.W.3d 97, 102 (Tex. App.—Fort Worth 2007, pet. denied) (citing Marin , 19 S.W.3d at 441 ); Moore v. Univ. of Houston-Clear Lake , 165 S.W.3d 97, 103 (Tex. App.—Houston [14th Dist.] 2005, no pet.) (same, quoting Gregg Cty. v. Farrar , 933 S.W.2d 769, 775 (Tex. App.—Austin 1996, pet. denied) ).
In Barrett , the court stated, "Section 554.006 does not require that grievance or appeal procedures be exhausted before suit can be filed; rather, it requires that such procedures be timely initiated and that the grievance or appeal authority have 60 days in which to render a final decision." 159 S.W.3d at 632.
The two central questions in this appeal are whether the Whistleblower Act required Herrera to initiate a pre-suit grievance under government code section 554.006 before he filed suit, and if so, whether a genuine issue of material fact exists on whether he did so. We examine both issues below.
Application of Government Code § 554.006 to Employees Covered Under Education Code § 21.103
In his first issue, Herrera argues that because his termination was final and not reviewable through the administrative appeal process under education code section 21.103, he was not required to comply with any pre-suit requirements under government code section 554.006 before filing his lawsuit. We disagree.
Section 554.006 states, in part, that 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" and "must invoke the applicable grievance or appeal procedures not later than the 90th day after the date" the alleged violation occurred, was discovered, or should have been discovered through reasonable diligence. See TEX. GOV'T CODE § 554.006(a), (b) ; see also id. §§ 311.034, 311.106 (providing in section 311.034 that pre-suit notice requirements are jurisdictional and providing in section 311.106 that "must" creates a condition precedent).
Education code section 21.103 does not alter those requirements, and government code section 554.006 does not make any exceptions or exemptions for employees covered by education code section 21.103. See TEX. EDUC. CODE § 21.103 ; TEX. GOV'T CODE § 554.006. We overrule Herrera's first issue.
Compliance with Government Code § 554.006
In his second issue, Herrera argues that even if section 554.006 applied to him under the circumstances, a material fact issue exists regarding his compliance with its pre-suit grievance initiation requirements and that the trial court erred in granting DISD's plea.
Neither party disputes that Herrera submitted his April 26, 2018 grievance, but they disagree about whether it satisfies section 554.006's requirements. In DISD's view, it fails to do so because it addressed DISD's March 29, 2018 letter, not DISD's letter dated April 26, 2018, that Herrera received on May 4, 2018, informing Herrera the Board had voted to approve the termination. In essence, DISD maintains, and the dissent agrees, that Herrera's grievance was premature and that he should have filed another grievance after he received DISD's letter informing him of the Board's vote on May 4, 2018, despite Herrera's specific complaint that challenged his "termination" as violating the Whistleblower Act.
We disagree with DISD and the dissent. When viewing the evidence under the applicable standard of review, we do not believe DISD has established its initial burden to demonstrate Herrera failed to satisfy section 554.006's requirements and instead believe a fact question exists on that issue based on DISD's own evidence.
First, we note that Herrera's April 26, 2018 grievance satisfies DISD's own definition of grievance under its DGBA (Local) policy. That policy defined "grievance" as "a complaint by an employee ... involving wages, hours, or conditions of work (including, but not limited to ... termination)." Herrera's April 26, 2018 grievance complained about "termination" under grievance type and communicated his belief DISD was violating the Whistleblower Act in its decision to terminate him.
The dissent refers to the Board's vote to approve the termination recommendation as the "actual decision to terminate," but based on DISD's own evidence, a fact-finder could conclude that Herrera's April 26, 2018 grievance was submitted on the same day as—and within less than two hours of—the Board's vote approving his termination.
The core difference between our view and the dissent's view is reflected in the dissent's statement that Herrera's "asserted Whistleblower Act claim does not concern the recommendation, but rather his actual termination" and its related conclusion that Herrera's April 26, 2018 grievance concerned only the recommendation, but not the termination. We view the two events as inextricably linked on this record, and considering the plain text of Herrera's grievance (which refers both to the March 29, 2018 date and to termination), we conclude his grievance complained about both and thus satisfied section 554.006(b)'s requirements. See Tex. Lab. Code § 554.006(b).
Further, despite DISD's April 27, 2018 letter, nothing within DISD's DGBA (Local) grievance policy indicated that DISD employees must delay filing termination-related grievances until after Board approval of a superintendent's recommendation to terminate or after receipt of a DISD letter confirming the Board's vote to approve the recommendation. Instead, DISD's policy contains language suggesting employees should file grievances sooner, not later, as employees are given a certain time frame to file a grievance from the date they "first knew or, with reasonable diligence, should have known of the decision or action giving rise to the grievance or complaint " (emphasis added). Here, the March 29, 2018 letter was the first formal step in a process that led to certain, possibly pro forma termination. Finally, despite the statements in DISD's April 27, 2018 letter, when Herrera received DISD's certified letter on May 4, 2018, informing him of the Board's vote, Herrera was told DISD's decision was "final and could not be appealed."
In its brief, DISD states that Herrera's "failure to grieve deprived it of notice and the opportunity to cure any purported errors regarding the termination of his employment," a concept with which the dissent seems to agree. However, this concept is exactly the opposite of what a reasonable juror might conclude happened based on this record. The record here shows that Herrera grieved his termination within no more than two hours after DISD's Board voted to approve it, and within no more than a day, DISD closed Herrera's grievance, thus depriving itself of the opportunity Herrera had provided DISD to investigate and cure its purported errors regarding his termination. Moreover, the same day that Herrera filed his April 26, 2018 grievance, DISD drafted a letter to Herrera informing him that his termination "may not be appealed." At best, DISD's categorical assertion to Herrera that his termination, taken pursuant to state law and district procedure, "may not be appealed" is misleading. A reasonable juror might well conclude that it is calculated to likely misinform a layperson to believe there is no administrative avenue for redress of a termination in violation of the Texas Whistleblower Act or other laws. In fact, although DISD's termination letter does not say so, non-appealability in the whistleblower context relates only to Herrera's right of appeal to the commissioner of education under Texas Education Code section 21.103, not his appeal to DISD. At worst, DISD is deliberately attempting to lure whistleblowers into a jurisdictional abyss through a game of legal "gotcha," a game DISD appears to be more than willing to play to its advantage. See Barfield v. Dallas Indep. Sch. Dist. , No. 05-04-00374-CV, 2004 WL 2804861, at *4 (Tex. App.—Dallas Dec. 3, 2004, no pet.) (mem. op.) (deciding, for third time on appeal, that former employee's whistleblower case should be remanded and tried). Because the effect of this accidental or deliberate misrepresentation by the District is not squarely before us, we do not decide its relevance, if any, to this opinion. However, regardless of any underlying motivations, we cannot help but note the considerable waste of time and resources for litigants and courts caused by such actions. The Whistleblower Act's underlying purposes are twofold: (1) to enhance open government by protecting public employees from retaliation by their employers when an employee reports a violation of the law in good faith, and (2) to secure lawful conduct by those who direct and conduct the affairs of government. Id. at *2.
These facts distinguish this situation from the non-binding cases cited by DISD and the dissent. See Pickering , 2011 WL 3612288, at *8 ; Jordan v. Ector Cty. , 290 S.W.3d 404, 406 (Tex. App.—Eastland 2009, no pet.). In Pickering , the school district filed a plea to the jurisdiction challenging an employee's compliance with section 554.006 in connection with two events: being placed on a corrective action plan on July 9, and being constructively discharged on August 3. Pickering , 2011 WL 3612288, at *6. On the constructive discharge claim, the court stated:
The trial court's ruling is expressly based on Pickering's July 22 letter, which predated Pickering's resignation. This letter does not reference Pickering's resignation. The record thus establishes that Pickering did not initiate a grievance with respect to the August 3, 2009 constructive discharge alleged in her petition.
Id. (emphasis added). Thus, it was her grievance's content, not its timing, that prevented Pickering from proceeding with her constructive discharge claim. On the claim involving her alleged demotion from a placement on a corrective action plan, Pickering attempted to rely on a letter that was not in the record and another letter that complained about her corrective action plan and that sought a hearing outside and different from a hearing through the district's applicable grievance system. Id. at *6–8. Under those circumstances, the court of appeals concluded that the district satisfied its initial burden of showing that Pickering did not initiate a grievance regarding her corrective action plan or constructive discharge within the district's applicable grievance policy and that the trial court erred in denying the district's plea to the jurisdiction. Id. at *8.
In Jordan , the employee did not file a grievance regarding her termination before filing her whistleblower claim but instead relied on a grievance she sought to initiate prior to her termination—one based not on her termination but instead on a complaint regarding an unrelated job posting. Jordan , 290 S.W.3d at 406. The court held that her grievance did not satisfy section 554.006's requirements because it failed to address her termination, the claim at issue in her lawsuit. Id.
In contrast to Pickering and Jordan , in this case, Herrera's April 26, 2018 grievance (1) is in the record before us, (2) fits DISD's own definition of a grievance according to its applicable policy, (3) specifically mentions termination and the basis of Herrera's challenge, (4) sought a hearing through its applicable grievance system, and (5) was submitted within the ninety-day period before Herrera filed suit. We find these distinctions to be significant and thus do not reach the same conclusion here.
As indicated, we disagree with DISD and the dissent's suggestion that Herrera's April 26, 2018 grievance was premature and somehow deprived the court of jurisdiction over Herrera's termination-related whistleblower claim. Employment law has long recognized that differences may exist between the dates that allegedly unlawful decisions are made, communicated, and eventually come to fruition, and courts have often found it appropriate to use the date that the employee is placed on notice of an adverse action, even if the action is not yet final, has not yet come to fruition, and its consequences will not be experienced until later. See, e.g. Del. State Coll. v. Ricks , 449 U.S. 250, 256, 262, 101 S.Ct. 498, 66 L.Ed.2d 431 (1980) (despite possibility that tenure denial might be changed through grievance proceeding, limitations period ran not from date grievance was denied but instead from date college notified associate professor of its decision not to grant him tenure); Specialty Retailers, Inc. v. DeMoranville , 933 S.W.2d 490, 493 (Tex. 1996) (per curiam) (stating "limitations period begins when the employee is informed of the allegedly discriminatory employment decision, not when that decision comes to fruition" and concluding time to file charge of discrimination regarding termination ran from date the employer notified employee she would be fired if she did not return from leave by a year later, not from date when she did not return and her employment was terminated); Chatha , 381 S.W.3d at 509–10 (time to file charge of discrimination for alleged pay discrimination under state law runs from date employee is informed of discriminatory pay decision, not from later date when the employer subsequently pays employee discriminatory amount).
While Ricks, Specialty Retailers , and Chatha are not Whistleblower Act cases, we find the analysis there persuasive and analogous in this context. We also note that in City of Madisonville v. Sims , the Texas Supreme Court relied on Chatha in concluding that the Whistleblower Act's ninety-day limitations period is a jurisdictional statutory prerequisite to suit. Sims , ––– S.W.3d at ––––, 2020 WL 1898540, at *3.
Finally, Herrera's grievance seemingly fulfills the purpose of government code section 554.006(a) "to afford [DISD] with the opportunity to investigate and correct its errors and resolve disputes before incurring the expense of litigation." See Gayle , 371 S.W.3d at 395 (quoting Pickering , 2011 WL 3612288, at *8 ); Aguilar , 296 S.W.3d at 789 ; Shilling , 266 S.W.3d at 102 ; Moore , 165 S.W.3d at 103 ; Farrar , 933 S.W.2d at 775. Herrera's grievance gave DISD notice of the same allegations involved in the lawsuit, specifically, that DISD was violating the Whistleblower Act in its decision to terminate him. Thus, on this evidence, a jury could reasonably conclude that Herrera's April 26, 2018 grievance provided DISD the opportunity to investigate and resolve the precise allegation at the heart of his lawsuit, namely his termination in violation of the Whistleblower Act.
Under these circumstances, we conclude that dismissal was inappropriate because a fact question exists on whether Herrera complied with section 554.006 by initiating his April 26, 2018 DGBA (Local) grievance, making it improper for the trial court to grant DISD's jurisdictional plea. See TEX. GOV'T CODE § 554.006 ; see also Burleson v. Collin Cty. Cmty. Coll. Dist. , No. 05-15-01361-CV, 2017 WL 511196, at *9 (Tex. App.—Dallas Feb. 8, 2017, no pet.) (mem. op.) (reversing order granting plea to the jurisdiction and stating, "Because the grievance gave notice of the same allegations in the lawsuit, we conclude [the employee] complied with the jurisdictional prerequisites for a whistleblower suit regarding those circumstances."); City of Dallas v. Watts , 248 S.W.3d 918, 922 (Tex. App.—Dallas 2008, no pet.) (affirming denial of plea to jurisdiction where evidence raised fact issue on whether employee initiated employer's grievance procedures before filing suit). We sustain Herrera's second issue.
CONCLUSION
For the foregoing reasons, we reverse the trial court's September 27, 2019 order granting DISD's plea to the jurisdiction and motion to dismiss and remand the case for further proceedings consistent with this opinion.
Schenck, J., dissenting.
CONCURRING AND DISSENTING OPINION
Opinion by Justice Schenck
I join the majority in its determination Fernando Herrera was required to initiate a pre-suit grievance under government code section 554.006 before he filed suit. I do not join the majority in its determination that a fact issue exists as to whether Herrera initiated a pre-suit grievance before filing suit because the record establishes, as a matter of law, Herrera failed to do so. Accordingly, I dissent from the majority's fact issue determination and reversal of the trial court's ruling on Dallas Independent School District's ("DISD") plea to the jurisdiction.
WHISTLEBLOWER CLAIMS
Herrera asserts a claim against DISD under the Whistleblower Act ("Whistleblower Act" or the "Act") in connection with the termination of his probationary employment contract. See TEX. GOV'T CODE ANN. §§ 554.001 –.010. He does not assert the school district breached his employment contract or engaged in a discriminatory act. Thus, Herrera's claim exists only to the extent it is authorized by the whistleblower statute and is subject to the statutory requirements under the Act. Compliance with the statutory requirements is a prerequisite to waiver of DISD's sovereign immunity. Jordan v. Ector Cty. , 290 S.W.3d 404, 406 (Tex. App.—Eastland 2009, no pet.). Pursuant to the Act, Herrera was required to initiate an action under DISD's grievance procedure after DISD allegedly violated the Act by discharging him and prior to filing suit. GOV'T § 554.006. As I more fully discuss below, the sole grievance Herrera submitted concerned a notice from the superintendent that he intended to recommend termination of Herrera's employment contract at the end of the contract period. While Herrera was advised that such a notice did not amount to a discharge and that his attempt to assert a grievance at that stage was without effect, he did not initiate a grievance thereafter, or more particularly, in response to the actual decision to terminate his contract. Accordingly, he did not comply with the statutory requirements under the Act.
Section 554.006 provides, in relevant part:
(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 the 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.
Tex. Gov't Code Ann. § 554.006(a), (b) (emphasis added).
BACKGROUND
DISD hired Herrera to be a bilingual teacher at a DISD elementary school under a probationary employment contract. Herrera and two of his colleagues had several interpersonal conflicts and asserted complaints against each other. An independent review and investigation ensued and concluded Herrera engaged in bullying conduct and violated school policy by publicly identifying the name of a student who had been the subject of a sexual abuse investigation.
On March 29, 2018, DISD sent Herrera a "Notice of Intent to Recommend Non-renewal or Termination" of Herrera's probationary employment contract at the end of the contract term. More specifically, the letter stated:
This letter is to provide you with advance notice that the Superintendent of Schools of the Dallas Independent School District ... intends to recommend, for approval, to the Board of Trustees pursuant to Texas Education Code 21.103 and District Board Policies DFAB (LEGAL) or DFBB (LEGAL/LOCAL), that it is in the best interests of the District that your contract end at the conclusion of the contract period.
You have the option to voluntarily resign from the District. If you choose to do so, District administration will accept your resignation, effective for the end of the 2017-18 school year, and, a recommendation for the non-renewal or termination of your contract will not be made to the Board of Trustees.
Although we understand that this decision is time sensitive, in order for this recommendation not to be presented to the Board, your resignation must be submitted in the Oracle Self-Service system no later than Wednesday, April 11, 2018 at 12:00 pm.
On April 25, Herrera's attorney faxed a letter to DISD stating:
I represent Fernando Herrera. This letter is in Response to the letters dated March 29, 2018 and March 20, 2018,
The March 20, 2018 letter notified Herrera that his position had been identified as an excess position for the 2018–19 school year.
which were received on April 2, 2018 and March 31, 2018 respectively. Please accept this letter as the written request for an appeal and hearing for the notices received.
(emphasis added). On April 26, Herrera submitted a grievance to DISD complaining about the March 29 "notice of intent to recommend non-renewal or termination at the end of the contract term for best interest/excess staff" and the March 20 "excess notification letter." DISD sent a letter to Herrera advising:
While Herrera's submitted grievance referenced the Whistleblower Act in connection with the notice concerning the termination recommendation, his asserted Whistleblower Act claim does not concern the recommendation, but rather his actual termination.
This letter serves as an official notification that the Level I grievance filed on April 27, 2018, is now closed. The Notice of Intent to Recommend Non-Renewal letter you received is a courtesy notification of a potential future action. The notification is not a termination letter thus a grievance cannot be submitted. In the future, if you receive a Proposed Notice of Non-Renewal or Termination Letter you may submit an appeal at that time.
It appears DISD received Herrera's grievance after hours on April 26 and thus considered it filed on April 27. Hereinafter, I will refer to Herrera's grievance as the April 26 grievance.
(emphasis added). That letter was signed by the manager of Employee Relations.
In the interim, the DISD Board of Trustees met and considered, among other matters, the superintendent's recommendation to terminate Herrera's probationary employment contract. The trustees ultimately voted to terminate Herrera's contract at the end of its term. DISD issued a letter, signed by the President, Board of Trustees, to Herrera titled "Probationary Teacher Notice of Termination," stating:
YOU ARE HEREBY NOTIFIED that the Board of Trustees, at a lawfully called meeting on April 26, 2018, voted that it is in the best interests of the District, that your probationary contract be terminated at the end of the 2017-2018 school year, pursuant to Texas Education Code 21.103(a) and DISD Board Policy DFAB (Legal). In accordance with the law, the Board's decision to terminate a probationary employee at the end of a contract period is final and may not be appealed.
While Herrera could not appeal the Board's termination decision to the Commissioner of Education, the grievance process was still available to him. See Tex. Educ. Code Ann. § 21.103(a) (board decision, in the best interests of the district, to terminate employment of a teacher employed under a probationary contract at the end of the contract period is final and not appealable); see also Gov't § 554.006 (requiring the employee to invoke the applicable grievance procedure as a prerequisite to filing a claim under the Whistleblower Act).
Herrera received this letter on May 4.
The majority notes that Herrera had previously been advised that the school district recommended for cause termination of his employment prior to the expiration of his contract period, which the school district later withdrew. In that instance, Herrera timely followed the appeal procedure applicable to that action. The majority does not explain how this affects the statutory question presented here as to whether Herrera filed a timely and proper grievance concerning the termination of his employment at the end of the contract period in connection with the instant whistleblower action and the statute he invokes.
After receiving the termination letter, Herrera did not file a grievance. Instead, on June 15, he filed his Whistleblower Act lawsuit alleging DISD terminated his employment in retaliation for his good faith complaints concerning violations of the law. Herrera did not assert he had fulfilled the Whistleblower Act's pre-suit requirements.
DISD filed a plea to the jurisdiction challenging the pleadings and the existence of evidence to support subject matter jurisdiction. In doing so, DISD asserted Herrera failed to initiate DISD's applicable grievance procedures prior to filing suit. In support of its plea, DISD included the communications identified above, the confirmation of Herrera's April 26 grievance setting forth the information he electronically submitted, and numerous other documents, including its DGBA (Local) policy, which allows probationary teachers, like Herrera, to submit certain grievances to the school board. Herrera did not contradict DISD's evidence and did not present any evidence of his own; instead, he referenced the evidence presented by DISD.
DISCUSSION
The Whistleblower Act prohibits state and local governmental entities from suspending or terminating the employment of, or taking 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, and provides for a private cause of action if certain prerequisites are met and the claim is asserted within the applicable statute of limitations. GOV'T §§ 554.002(a), 554.003, 554.005, 554.006.
"Personnel action" means an action that affects a public employee's compensation, promotion, demotion, transfer, work assignment, or performance evaluation. Gov't § 554.001(3). Providing a notice of intent to recommend termination is not an adverse personnel action.
As a prerequisite to suit under the Whistleblower Act, the complainant must initiate action under the state or local government employer's grievance or appeal procedures before suing and must do so within 90 days of the date the employer's violation occurred or was discovered by the employee through reasonable diligence. See id. § 554.006(a), (b). Section 554.006's requirement that an employee initiate a grievance prior to filing suit under the Whistleblower Act is designed to "afford the employer an opportunity to correct its errors by resolving disputes before litigation." City of Fort Worth v. Shilling , 266 S.W.3d 97, 102 (Tex. App.—Fort Worth 2008, pet denied). The Act's requirement that the complainant initiate action under the employer's grievance or appeal procedures is a jurisdictional prerequisite to suit. City of Madisonville v. Sims , No. 18-1047, ––– S.W.3d ––––, ––––, 2020 WL 1898540, *3 (Tex. Apr. 17, 2020). The onus is thus on the employee to show that he timely initiated the grievance process once the governmental employer has pierced the pleading to show jurisdiction does not exist. See El Paso Indep. Sch. Dist. v. Kell , 465 S.W.3d 383, 386 (Tex. App.—El Paso 2015, pet. denied) ; W. Houston Charter Sch. Alliance v. Pickering , No. 01-10-00289-CV, 2011 WL 3612288, at *3 (Tex. App.—Houston [1st Dist.] Aug. 18, 2011, no pet.) (mem. op.).
All parties to this case agree that DISD DGBA (Local) policy requires "[e]mployees ... [to] initiate a dispute resolution process under this policy within the time specified by law and policy." Thus, once one concludes that the policy applies, the employee must initiate the grievance process concerning the termination of his contract within the time frame specified in the Whistleblower Act. GOV'T § 554.006(b). The undisputed evidence establishes the only grievance Herrera attempted to initiate was his April 26 complaint identifying the "incident date" as March 29, 2018, by which he claimed the "recommend[ation] of non-renewal or termination was in retaliation for his having made good faith reports to the appropriate law enforcement authorities on other employees that violated the law." Thus, the issue presented here is whether that attempt satisfied the requirements of section 554.006 with respect to Herrera's current complaint about the actual, subsequent termination of his employment.
The majority concludes this complaint raises a fact issue concerning Herrera's satisfaction of the section 554.006 requirements. I conclude it does not. The plain language of section 554.006, DGBA (Local) policy concerning grievances, Herrera's April 26 grievance, and case law establish a grievance filed before the alleged violation of the Whistleblower Act does not satisfy the prerequisites of section 554.006. See Pickering , 2011 WL 3612288, at *6 (letter predating Pickering's alleged constructive discharge did not initiate grievance process); Jordan , 290 S.W.3d at 406 (grievance Jordan filed prior to her termination could not have addressed her wrongful termination under Whistleblower Act because the termination had not yet occurred and thus could not meet the requirements of section 554.006(a) ).
The majority's effort to distinguish Pickering and Jordan rests on its erroneous conclusion that attempting to grieve a notice of a recommendation of termination, which may never come to fruition, is synonymous to grieving an ultimate termination decision. It is only the latter to which the Whistleblower Act is directed. GOV'T § 554.006(a), (b). Similarly, the majority's reliance on employment law cases—not involving the Whistleblower Act—that look to the date an employee is placed on notice of a forthcoming adverse action for calculation of the limitations periods is misplaced. Had Herrera brought such a claim and had the school district raised the issue of limitations, those cases might be instructive. But the issue presented here is strictly one of the construction of the statute Herrera invoked. That provision is unambiguously addressed to actual "action," including "suspension" or "termination" of employment, and likewise requires the filing of the grievance "after" that "action." Id.
As stated above, section 554.006(b) requires that the employee invoke the applicable grievance or appeal procedures not later than the 90th day after the date on which the alleged violation of the Whistleblower Act occurred or was discovered by the employee through reasonable diligence. Id. § 544.006(b). Here, according to Herrera's pleadings, the alleged violation of the Whistleblower Act arose from the termination of his probationary employment contract, which was received by Herrera on May 4. Prior to the Board of Trustees' vote to terminate Herrera's contract, there could be no violation of the Whistleblower Act to grieve, and Herrera had already been notified that his earlier attempt to initiate a grievance in connection with the recommendation was improper and had been closed. Because the record clearly establishes that Herrera did not initiate a grievance after the school board terminated his contract and gave him notice of its decision, he failed as a matter of law to satisfy the jurisdictional prerequisite to suit under section 554.006.
The majority's contention that a fact finder could conclude Herrera's April 26, 2019 grievance, which was not submitted to any decisional body because an act for which a grievance lies had not occurred, timely grieved his subsequent termination is not supportable and would thwart section 554.006's provision giving the grievance or appeal authority 60 days to make a final decision. Gov't § 554.006(d). Logically, if a decision in the first instance had not yet been made, the appropriate authority would not be in a position to initiate a review of that decision, much less adhere to and track the statutory 60-day deadline.
CONCLUSION
The district court lacked jurisdiction over Herrera's claims and properly granted DISD's plea to the jurisdiction. Consequently, I dissent from the majority's conclusion that a fact issue exists as to whether DISD's immunity from suit has been waived and reversal of the trial court's dismissal order.