Opinion
05-22-00381-CV
04-26-2023
CITY OF FORT WORTH, TEXAS, Appellant v. RONALD BURKE, Appellee
On Appeal from the 193rd Judicial District Court Dallas County, Texas Trial Court Cause No. DC-19-07239
Before Justices Molberg, Partida-Kipness, and Carlyle
OPINION
KEN MOLBERG JUSTICE.
In this accelerated, interlocutory appeal, the City of Fort Worth appeals an order denying its plea to the jurisdiction on Texas Whistleblower Act (TWA) claims brought by appellee Ronald Burke, a former City employee. The City presents three issues that all raise one central question: based on the record before us, did the trial court err in denying the City's plea to the jurisdiction? We answer that question "no," overrule the City's three issues, and affirm.
See Tex. Gov't Code §§ 554.001-.010.
I. Background
Burke is the City's former Associate Information Technology Director.
Burke sued the City in May 2019 and later amended his pleading. In his first amended petition-his only pleading in the record before us-Burke asserted claims under both the TWA and the Family and Medical Leave Act (FMLA). See 29 U.S.C. §§ 2601-54.
The City removed the case to federal court. While the case was pending there, the City moved for summary judgment on all of Burke's claims. See Burke v. City of Fort Worth, No. 4:19-cv-00744-P, 2021 WL 347473, at *2 (N.D. Tex. Feb. 2, 2021). The federal court granted summary judgment on Burke's FMLA claims, in which Burke asserted both FMLA-interference and FMLA-retaliation claims. The federal court also declined to exercise its supplemental jurisdiction over his TWA claims and remanded the case to state court without ruling on the TWA claims.
See Burke, 2021 WL 347473, at *3-6. As the federal court did in this case, see id. at *2, courts often classify FMLA claims as either “interference” or “prescriptive” claims when brought under section 2615(a)(1) or as “retaliation” or “proscriptive” claims when brought under section 2615(a)(2). See, e.g., Bryant v. Tex. Dep't of Aging & Disability Servs., 781 F.3d 764, 768 (5th Cir. 2015) (citing Cuellar v. Keppel Amfels, L.L.C., 731 F.3d 342, 349 n.2 (5th Cir. 2013) (Elrod, J., concurring) (collecting cases)).
See Burke, 2021 WL 347473, at *6-8.
In describing its decision to remand the TWA claims, the federal court stated, "This federal district court should not be the first court to apply the [TWA] to these facts" and stated it was remanding the case "without making findings or any statement about the [TWA claims'] merits." Id. at *7-8.
After remand, the City filed a plea to the jurisdiction, seeking dismissal of Burke's TWA claim based, in part, on the same bases the City argues on appeal.
In addition to the other issues discussed herein, the City argued in its plea that the trial court lacked jurisdiction because Burke did not make a good-faith report of a violation of law to an appropriate law enforcement authority. Because the City does not make that argument on appeal, we need not review it, and thus discuss Burke's reports only generally in this opinion. See San Jacinto River Auth. v. Duke, 783 S.W.2d 209, 209-10 (Tex. 1990) ("[G]rounds of error not asserted by points of error or argument in the court of appeals are waived.").
The trial court denied the City's plea. The City timely appealed.
In addition to Burke, at least two other former City employees also sued the City in separate, but somewhat related, employment actions. As it did here, the City filed pleas to the jurisdiction in those cases as well. This is our third time to issue an opinion in an interlocutory appeal of a trial court's order on the City's plea to the jurisdiction in these cases.
See City of Fort Worth v. Birchett, No. 05-20-00265-CV, 2021 WL 3234349, at *13 (Tex. App.- Dallas July 29, 2021, pet. denied) (mem. op.); Fitzgerald v. City of Fort Worth, No. 05-20-00112-CV, 2021 WL 486396, at *1 (Tex. App.-Dallas Feb. 10, 2021, pet. denied) (mem. op.).
II. General Legal Standards
A. Pleas to the Jurisdiction
A plea to the jurisdiction is a dilatory plea by which a party challenges the trial court's jurisdiction to determine the subject matter of the action. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2006). The purpose of the plea is to defeat a claim without regard to whether it has merit. Id.
B. Governmental Immunity
"Sovereign immunity-usually called governmental immunity when referring to political subdivisions-protects governmental entities against suits and legal liabilities." Hillman v. Nueces Cnty., 579 S.W.3d 354, 357 (Tex. 2019) (citation omitted). The supreme court has explained:
Governmental immunity encompasses two related but distinct concepts: "immunity from liability, which bars enforcement of a judgment against a governmental entity, and immunity from suit, which bars suit against the entity altogether." . . . A statute can waive immunity from suit, immunity from liability, or both. . . . Only immunity from suit implicates a court's subject-matter jurisdiction. . . . Thus, immunity from suit is properly raised in a plea to the jurisdiction while immunity from liability is not.Dohlen v. City of San Antonio, 643 S.W.3d 387, 392 (Tex. 2022) (internal citations omitted); see Hillman, 579 S.W.3d at 364 (Governmental "immunity from suit defeats a trial court's subject matter jurisdiction.") (quoting Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225 (Tex. 2004)). Governmental units are immune from suit unless the state consents. Alamo Heights Indep. Sch. Dist. v. Clark, 544 S.W.3d 755, 770 n.15 (Tex. 2018); Miranda, 133 S.W.3d at 224.
C. Texas Whistleblower Act
The TWA, located in Chapter 554 of the Texas Labor Code, "provides a general remedy for retaliation based on the report of any violation of law" and "is a broad remedial measure intended to encourage disclosure of governmental malfeasance and corruption." City of Waco v. Lopez, 259 S.W.3d 147, 154 (Tex. 2008) (first citing Tex. Gov't Code § 554.002, and then citing Stinnett v. Williamson Cnty. Sheriff's Dep't, 858 S.W.2d 573, 575 (Tex. App.-Austin 1993, writ denied)). The TWA's purposes are to (1) 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) secure lawful conduct by those who direct and conduct the affairs of government. Herrera v. Dallas Indep. Sch. Dist., 609 S.W.3d 579, 588 n.15 (Tex. App.-Dallas 2020, pet. denied).
See Tex. Gov't Code §§ 554.001-.010.
The TWA states,
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 § 554.002(a). "Personnel action" is defined as "an action that affects a public employee's compensation, promotion, demotion, transfer, work assignment, or performance evaluation." Id. § 554.001(3).
The TWA "waive[s] and abolishe[s]" sovereign immunity "to the extent of liability for the relief allowed under" Chapter 554. Id. § 554.0035.
Because the TWA waives immunity in this manner, the "jurisdictional and merits inquiries" are "collapse[d] . . . to some degree." Dohlen, 643 S.W.3d at 392 (citing Alamo Heights, 544 S.W.3d at 784). Statutes with such immunity waivers "direct the inquiry to the statute's elements and may require a court to consider those elements at both the jurisdictional and merits stages." Id. (citing State v. Lueck, 290 S.W.3d 876, 883 (Tex. 2009)).
In Lueck, the supreme court stated:
[T]here are but two jurisdictional requirements under [TWA] section 554.0035. For the government's immunity to be waived, the plaintiff must (1) be a public employee, and (2) allege a violation of this chapter. Tex. Gov't Code § 554.0035 (emphasis added). But it necessarily follows from this language that [a public employee] must actually allege a violation of the [TWA] for there to be a waiver from suit. Therefore, the elements under section 554.002(a) must be considered in order to ascertain what constitutes a violation, and whether that violation has actually been alleged.290 S.W.3d at 881. The court concluded, "[T]he elements of section 554.002(a) can be considered as jurisdictional facts, when it is necessary to resolve whether a plaintiff has alleged a violation under the [TWA]." Id.
In a TWA suit by a public employee against his governmental-entity employer, the employee must show he "(1) reported (2) a violation of law by the employer or another public employee (3) to an appropriate law enforcement authority, (4) the report was made in good faith, and (5) the adverse action would not have occurred when it did if the employee had not reported the illegal conduct." City of Fort Worth v. Pridgen, 653 S.W.3d 176, 182 (Tex. 2022) (first citing Tex. Gov't Code § 554.002(a), and then citing City of Fort Worth v. Zimlich, 29 S.W.3d 62, 67 (Tex. 2000)). The employee bears the burden of proving the claim, but "[i]f a governmental employer takes adverse action 'not later than the 90th day after the date on which the employee reports a violation of law,' there is a rebuttable presumption that the action was taken in response to the employee's report." Id. (citing Tex. Gov't Code § 554.004(a)).
III. Issues and Analysis
In three issues, the City argues the trial court erred in denying its plea to the jurisdiction on Burke's TWA claims because (1) the five alleged adverse actions about which Burke complains are not adverse personnel actions under the TWA; (2) two of the five actions were not retaliatory, considering the testimony of Kevin Gunn, Burke's supervisor, and (3) Burke failed to satisfy the TWA's statutory prerequisite to suit by actively circumventing the City's grievance process.
The City presents its three issues in the form of questions, asking whether: (1) "a memo to an employee's personnel file and a letter notifying an employee of a pre-decision meeting are adverse personnel actions under the [TWA,]" (2) "a causal connection between an alleged whistleblower report and alleged adverse actions can be established when the evidence shows that the decision-maker was unaware of the alleged reports when the complained-of actions were taken[,]" and (3) "the statutory prerequisite to suit can be satisfied when an employee knowingly refuses to provide necessary information requested as part of the employer's whistleblower grievance process."
A. Review Standards
Before we address the City's issues, we consider the proper review standards.
We review a trial court's disposition of a party's plea to the jurisdiction de novo. City of Hous. v. Hous. Mun. Emps. Pension Sys., 549 S.W.3d 566, 575 (Tex. 2018); Miranda, 133 S.W.3d at 226; Tex. Nat. Res. Conservation Comm'n v. IT-Davy, 74 S.W.3d 849, 855 (Tex. 2002).
Immunity from suit may be asserted through a plea to the jurisdiction that challenges the pleadings, the existence of jurisdictional facts, or both. Alamo Heights, 544 S.W.3d at 770.
If a governmental unit challenges the existence of jurisdictional facts with supporting evidence, as the City did here, our standard of review mirrors that of a traditional summary judgment motion. See id. at 771; Miranda, 133 S.W.3d at 228. Thus,
The City submitted evidence with its plea and challenged certain elements of Burke's claims based on its evidence. Burke opposed the City's plea and submitted evidence with his response. The City objected to certain portions of Burke's evidence. The record contains no ruling on those objections, and the City raises no issue on appeal regarding its objections.
In a traditional summary judgment motion, the movant must demonstrate there is no genuine issue of material fact and it is entitled to judgment as a matter of law. See Tex. R. Civ. P. 166a(c); Lujan v. Navistar, Inc., 555 S.W.3d 79, 84 (Tex. 2018). If it does so, the burden shifts to the non-movant to come forward with competent controverting evidence sufficient to raise a genuine issue of material fact. Lujan, 555 S.W.3d at 84. On review, we consider the evidence in the light most favorable to the non-movant, making every reasonable inference and resolving all doubts in his or her favor. Id. We credit evidence favorable to the non-movant if a reasonable factfinder could, and disregard contrary evidence unless a reasonable factfinder could not. See Samson Expl., LLC v. T.S. Reed Props., Inc., 521 S.W.3d 766, 774 (Tex. 2017).
[i]nitially, the defendant carries the burden to meet the summary judgment proof standard for its assertion that the trial court lacks jurisdiction. If it does, the plaintiff is then required to show that a disputed material fact exists regarding the jurisdictional issue. If a fact issue exists, the trial court should deny the plea.Mission Consol. Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629, 635 (Tex. 2012) (emphasis added) (internal citations and footnotes omitted).
In this procedural posture, this "does not mean a plaintiff . . . will be required to marshal evidence and prove her claim to satisfy [the] jurisdictional hurdle[,]" because "[w]hile a plaintiff must plead the elements of her statutory cause of action . . . she will only be required to submit evidence if the defendant presents evidence negating one of those basic facts." Id. at 637 (emphasis added) (stating this, in context of another statutory employment claim).
In addition to common law claims, Garcia involved an employment discrimination claim under the Texas Commission on Human Rights Act (TCHRA). See 372 S.W.3d at 632; Tex. Labor Code §§ 21.001-.556.
In deciding whether such fact issues exist, we take as true all evidence favorable to Burke, the nonmovant, indulging every reasonable inference and resolving any doubts in his favor. See Alamo Heights, 544 S.W.3d at 771 (citing Miranda, 133 S.W.3d at 228). In doing so, however, we cannot disregard evidence necessary to show context or evidence and inferences unfavorable to him if reasonable jurors could not do so. See id.
Miranda explains the parties' burdens in this manner:
By requiring the [governmental entity] to meet the summary judgment standard of proof in cases like this one, we protect the plaintiffs from having to "put on their case simply to establish jurisdiction." . . . Instead, after the [government entity] asserts and supports with evidence that the trial court lacks subject matter jurisdiction, we simply require the plaintiffs, when the facts underlying the merits and subject matter jurisdiction are intertwined, to show that there is a disputed material fact regarding the jurisdictional issue.133 S.W.3d at 228 (internal citations omitted).
Quoting Miranda, 133 S.W.3d at 226, the supreme court recently repeated, "[I]n some cases, disputed evidence of jurisdictional facts that also implicate the merits of the case may require resolution by the finder of fact." Rattray v. City of Brownsville, No. 20-0975, 2023 WL 2438952, at *11 (Tex. Mar. 10, 2023).
In light of these standards and the manner in which the City challenged Burke's TWA claim, in reviewing the City's issues, we will first consider whether the City's evidence established the trial court lacked jurisdiction on Burke's claim by negating Burke's allegations regarding the challenged elements, and if so, whether Burke raised a genuine fact issue on the challenged elements with the evidence submitted with his response. See Alamo Heights, 544 S.W.3d at 785 (stating, as to an element being challenged, that plaintiff is "not put to the ultimate burden of proof but must only raise a fact issue" on that element).
Evidence raises a genuine issue of fact if reasonable and fair-minded jurors could differ in their conclusions in light of the parties' evidence. See Lam v. Phuong Nguyen, 335 S.W.3d 786, 789 (Tex. App.-Dallas 2011, pet. denied) (describing this standard in reference to "all the summary judgment evidence" in that case) (citing Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 755 (Tex. 2007) (per curiam)).
B. Adverse Action and Causation
Generally, in its first two issues, the City argues the trial court erred in denying its plea because the five alleged adverse actions about which Burke complains are not adverse personnel actions under the TWA (first issue) and because two of those five actions were not retaliatory (second issue).
1. TWA Section 554.002
The TWA 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 § 554.002(a). The TWA defines "[p]ersonnel action" as "an action that affects a public employee's compensation, promotion, demotion, transfer, work assignment, or performance evaluation." Id. § 554.001(3).
2. The Record a. Burke's Pleading
In his pleading, Burke alleged that on various dates in November and December 2018, he reported TWA-protected violations of law to various officials, and after making those reports, he was subjected to retaliation in the form of five alleged adverse actions:
(1) January 2, 2019 reassignment of his direct reports to a different manager;
(2) January 2, 2019 placement in his personnel file of a permanent memorandum claiming "inadequate management";
(3) January 11, 2019 issuance of a "pre-decision meeting notice" stating the Information Technology Solutions Department was seriously considering the termination of Burke's employment;
(4) January 18, 2019 issuance of a second "pre-decision meeting notice" while Burke was on FMLA leave; and
(5) termination of his employment through the City attorney's April 3, 2019 letter.
For purposes of this opinion, we use the phrase "fifth alleged adverse action" to include a claim for constructive discharge, a claim Burke referred to in his March 22, 2019 letter and which the City referred to in its April 3, 2019 letter in response.
For clarity, we refer to these actions by number in the rest of our opinion.
b. City's Plea and Evidence
In its plea, the City made two arguments about adverse actions and causation. Specifically, the City argued the trial court lacked jurisdiction because (1) the fourth and fifth adverse actions Burke alleged were determined by the federal judge not to be adverse actions upon which a viable claim could be based and (2) the other three alleged adverse actions-the January 2, 2019 reassignment and memorandum and the January 11, 2019 pre-decision meeting notice-were not retaliatory for Burke's TWA-protected statements, considering that Burke's supervisor, Kevin Gunn, who issued the memorandum and notice, was not aware of Burke's statements.
Specifically, the City argued the second and third alleged actions "were not retaliatory for the discussion and emails that Burke exchanged in December 2018 regarding CJIS remediation because Gunn, the IT Director who issued the letters, was not aware of those statements."
To support its arguments, the City submitted evidence that included a copy of the federal court's order and an affidavit by Gunn that stated, in part:
I have learned from Burke's deposition that he contends he made protected reports in the meeting with police staff described above, which I did not attend, and when he sent two emails to Chris Morgan in late December 2018 about doors locking at the Zipper building and an email to Birchett in late December 2018 about the police department's service set identifier (SSID). I had not seen Burke's emails to Morgan or Birchett in December 2018 or January 2019 and was unaware of these specific communications.
c. Burke's Response and Evidence
Burke did not respond to the City's first argument in his response but did respond to the second argument. He argued that because the City's alleged adverse actions against him occurred less than ninety days after his protected reports, the City's actions were presumed retaliatory under section 554.004(a).
Burke also included a declaration in which he stated, in part, "I recall telling Gunn in late December 2018 or early January 2019, that I reported violations of federal regulations pertaining to CJIS to members of law enforcement during meetings that included Gunn and Roger Wright."
3. Appellate Arguments and Legal Analysis
On appeal, the City now makes two arguments regarding the adverse action element of Burke's TWA claims and one argument regarding causation. We turn first to its adverse action arguments before considering causation.
a. Adverse Action
While the City only made one adverse-action argument in the trial court, on appeal, the City now argues the trial court lacked jurisdiction because (1) the federal court's ruling regarding Burke's fourth and fifth alleged adverse actions is the "law of the case" and has preclusive effect, and (2) Burke's first, second, and third alleged adverse actions are not "adverse personnel actions" under the TWA.
The City's second argument is new. Because the City did not include this argument in the plea it filed in the trial court, it was not preserved for review, and we need not address it here. See Tex. R. App. P. 33.1(a); City of El Paso v. Pina, 659 S.W.3d 194, 199 (Tex. App.-El Paso 2022, no pet.) (stating in an appeal of a denial of a plea to the jurisdiction that the government entity did not preserve for review an argument it made on appeal that was not addressed in its plea).
The City's first argument is not new, but we conclude it lacks merit. In support of its first argument on the law of the case, the City cites the federal court's opinion, which it included with its plea. See Burke, 2021 WL 347473, at *3-7.
The United States Supreme Court stated, "As most commonly defined, the doctrine [of the law of the case] posits that when a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case." Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 815-16 (1988) (quoting Arizona v. California, 460 U.S. 605, 618 (1983)). The Court stated the rule "promotes the finality and efficiency of the judicial process by 'protecting against the agitation of settled issues'" and "applies as much to the decisions of a coordinate court in the same case as to a court's own decisions." Id. at 816.
Bracketed language appears in that manner in the original.
The Texas Supreme Court stated:
The "law of the case" doctrine is defined as that principle under which questions of law decided on appeal to a court of last resort will govern the case throughout its subsequent stages. . . . By narrowing the issues
in successive stages of the litigation, the law of the case doctrine is intended to achieve uniformity of decision as well as judicial economy and efficiency. . . . The doctrine is based on public policy and is aimed at putting an end to litigation.
The doctrine of the law of the case only applies to questions of law and does not apply to questions of fact. Further, the doctrine does not necessarily apply when either the issues or the facts presented at successive appeals are not substantially the same as those involved on the first trial.Hudson v. Wakefield, 711 S.W.2d 628, 630 (Tex. 1986) (internal citations omitted).
Later, the court stated:
Under the law of the case doctrine, a court of appeals is ordinarily bound by its initial decision if there is a subsequent appeal in the same case. [But a] decision rendered on an issue before the appellate court does not absolutely bar re-consideration of the same issue on a second appeal. Application of the doctrine lies within the discretion of the court, depending on the particular circumstances surrounding that case.
The Court has long recognized as an exception to the law of the case doctrine that if the appellate court's original decision is clearly erroneous, the court is not required to adhere to its original rulings.Briscoe v. Goodmark Corp., 102 S.W.3d 714, 716 (Tex. 2003) (footnotes omitted); see Caplinger v. Allstate Ins. Co., 140 S.W.3d 927, 929 (Tex. App.-Dallas 2004, pet. denied) (citing Briscoe and applicable standards). Thus, the doctrine is both discretionary and not absolute, even when it applies.
But on the record before us, we question whether the doctrine even applies at all and conclude it does not, for two reasons: one involving this case's procedural history; the other, the current procedural posture and applicable review standards.
The procedural history shows that there is no prior ruling on a TWA claim for us to apply. The case was first filed in state court, was then removed to federal court where only federal statutory claims were decided, and was then remanded to state court for a decision on the TWA claims, on which the federal court specifically declined to exercise its supplemental jurisdiction or rule. Thus, the underlying premise of the doctrine is absent, as there is no prior decision on Burke's TWA claims for us to apply.
The federal court stated, "This federal district court should not be the first court to apply the [TWA] to these facts" and stated it was remanding the case "without making findings or any statement about the [TWA] claim's merits." Burke, 2021 WL 347473, at 7-8.
Even if we ignored that problem, there is another equally major flaw in the City's argument: the review standards we are to apply here are different from the federal summary judgment standards the court applied in ruling on Burke's FMLA claims. See Burke, 2021 WL 347473, at *2 (explaining summary judgment standards it applied). In effect, the City asked the trial court, and is now asking this Court, to preclusively use a federal court ruling resulting from the application of what amounts to a no-evidence summary judgment standard and to apply it to different claims, on a different record, even though we are to review the plea as if it were a traditional motion for summary judgment. In other words, even if the federal court had ruled on the TWA claims, the City's law of the case argument would have us effectively flip the parties' burdens.
For these reasons, and based on the record before us, we conclude the law of the case doctrine does not apply.
We overrule the City's first issue.
b. Causation
As the City argued in its written plea, on appeal, the City argues Burke's first, second, and third alleged adverse actions were not retaliatory because Gunn, the person who issued those actions, was unaware of Burke's TWA-protected reports. The City cites Gunn's above-quoted testimony and argues it both "rebuts any presumption to which Burke may have been entitled" and "conclusively negates causation" as to the second and third alleged adverse actions.
Even if we were to presume Burke was not entitled to or that the City rebutted any presumption Burke may have been entitled to under section 554.004, we disagree with the City's argument that it "conclusively negates causation[,]" particularly when Burke disputes that Gunn did not know of his TWA-protected reports. Burke's declaration states, "I recall telling Gunn in late December 2018 or early January 2019, that I reported violations of federal regulations pertaining to CJIS to members of law enforcement during meetings that included Gunn and Roger Wright."
We conclude a fact issue exists on the causation arguments made by the City in its plea, and the trial court did not err in denying the City's plea on these bases. See Alamo Heights, 544 S.W.3d at 771 (trial court must deny a plea to the jurisdiction if genuine issues of material fact exist on the issues raised in the plea). We overrule the City's second issue.
C. Pre-Suit Requirement
Finally, we consider the City's third issue, in which it argues the trial court erred in denying its plea to jurisdiction on Burke's TWA claims because Burke failed to satisfy the statutory prerequisite to suit by actively circumventing the City's grievance process.
1. TWA Section 554.006
Section 554.006 states:
(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.
(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 § 554.006.
The goal of section 554.006's procedures is to give the governmental entity the opportunity to investigate and correct its errors and to resolve disputes before incurring the expense of litigation. Herrera, 609 S.W.3d at 586 (citations omitted).
The supreme court described section 554.006's procedures as "comparatively simple" and stated exhaustion of such procedures is not required. See Lopez, 259 S.W.3d at 154 (describing these procedures as "comparatively simple"); Univ. of Tex. Med. Branch v. Barrett, 159 S.W.3d 631, 632 (Tex. 2005) (per curiam) ("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.").
If a final decision is not rendered before the sixty-first day after the procedures are initiated under section 554.006(a), a public employee may elect to exhaust those procedures or terminate them. See Tex. Gov't Code § 554.006(d). The employee's choice between those two options determines the amount of time the employee has to file suit to obtain TWA relief. See Tex. Gov't Code § 554.006(d)(1)-(2).
If an employee chooses to exhaust the procedures, "the employee must sue not later than the 30th day after the date those procedures are exhausted to obtain relief under [the TWA.]" Tex. Gov't Code § 554.006(d)(1). If an employee chooses to terminate the procedures, "the employee must sue within the time remaining under Section 554.005 to obtain relief under [the TWA]." Id. § 554.006(d)(2).
If the applicable procedures are not followed, the suit may be dismissed for lack of jurisdiction. See City of Madisonville v. Sims, 620 S.W.3d 375, 378 (Tex. 2020) (per curiam).
In Sims, the court considered whether it was proper to dismiss for lack of jurisdiction a lawsuit filed by an employee after the expiration of the [TWA's] ninety-day limitation period under section 554.005, not its grievance initiation requirement under section 554.006(a). Sims, 620 S.W.3d at 378; see Tex. Gov't Code §§ 554.005, 554.006(a). In deciding that issue, the court stated, "When 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." Sims, 620 S.W.3d at 378 (quoting Prairie View A & M Univ. v. Chatha, 381 S.W.3d 500, 515 (Tex. 2012)). Thus, based on Sims' reasoning, it appears clear that section 554.006(a) creates a condition precedent to suit and that a claim failing to meet section 554.006(a)'s requirement may properly be disposed of by a jurisdictional plea. See id. at 379 (noting, with respect to section 554.005's language, that use of the word "must" creates a condition precedent and that a claim that fails to satisfy section 554.005's ninety-day limitations deadline may properly be disposed of by a jurisdictional plea); Tex. Gov't Code § 554.006(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.").
2. The Record
a. Burke's Pleading
In his first amended petition, Burke alleged he "fulfilled the jurisdictional requirements under § 554.006." His pleading states that on March 22, 2019, his attorney sent a letter on his behalf to the City's attorney invoking the applicable grievance procedure. He also states he elected to terminate the grievance procedure and filed his original petition sixty-one days after he began the procedure, as the City had not rendered a final decision by that time in response to his March 22, 2019 letter.
b. City's Pleading, Plea, and Evidence
The record contains the City's first amended answer and special exceptions. In that pleading, the City refers to Burke's "initiating the grievance procedure on March 22, 2019, regarding his termination."
But in its plea to the jurisdiction, the City argued Burke "failed to initiate the whistleblower grievance process in accordance with the City's policy." The City claimed Burke did so, in part, by "actively circumvent[ing] the process after sending the demand letter by suggesting that he would meet with the investigator when, in fact, it was never his intention to do so."
The City's evidence in support of its plea included its "Whistleblower Complaints" policy which states, in pertinent part:
Complainants must cooperate in the investigation and provide timely and accurate information relevant to the complaint as requested by the investigators. Failure of the complainant to cooperate or provide accurate information during the investigation process impedes the ability of the investigators to conduct a thorough review and will be noted in the findings as appropriate. It is the complainant's responsibility to update contact information, in the event of a change. This is a prerequisite to suit under the Texas Whistleblower Act.
The policy also states, the "Complaints must be filed in writing with the Human Resources Department's Employee and Labor Relations Division [ELRD,]" and the date ELRD receives the complaint "will be considered the date [it] is filed."
In its plea, the City also argued Burke failed to satisfy the TWA's statutory prerequisite to suit by failing to submit a written report to ELRD. But on appeal, the City makes no such argument. In fact, in its appellate briefs, the City states, "The [March 22, 2019] letter included a request for the City to conduct a whistleblower grievance investigation[,]" "the City received notice of [the March 22, 2019] letter requesting an investigation[,]" "the City's counsel acknowledged receipt of [that] letter," and the letter "was sent to the manager of the [ELRD] by the City Attorney's Office."
The City's evidence also included a blank, one-page "Retaliation Complaint Form" and an April 11, 2019 letter from Burke's counsel which confirmed receipt of the request by the City's attorney that Burke complete a form for his whistleblower claim and attend an interview.
The form states, in part, "Please also answer all questions on the second page of this form if you are filing a [w]histleblower retaliation complaint." The City did not submit the second page with its plea.
As other evidence supporting its plea, the City submitted an affidavit from Larry Lockley, its ELRD Manager. Lockley's affidavit acknowledged Burke's counsel's March 22, 2019 letter was forwarded to him, and stated, in part:
After I received [the March 22, 2019 letter], I asked our counsel to request that Burke initiate the Whistleblower grievance process by completing the Whistleblower grievance form and scheduling a time for Burke to meet with me for an interview so that I could gather more information about his complaint. I provided several possible dates for that interview. I never received a response by, or on behalf of, Burke confirming that an interview could be scheduled or providing the whistleblower grievance intake form. I was waiting to begin the investigation because I believed that Burke was going to meet with me to provide additional information about his complaint. I was notified that Burke filed a lawsuit claiming whistleblower violations and was never given the opportunity to meet with Burke regarding his
complaint. I do not believe that Burke complied with the City's whistleblower grievance policy.
The City also submitted evidence of email communications between Burke's counsel and the City's attorney. Among these emails are an April 15, 2019 email from the City's attorney to Burke's counsel as well as emails from both parties' counsel dated as late as May 15, 2019-one week before Burke filed this lawsuit.
Although Burke's original petition is not in the record, the docket sheet in the record reflects that Burke filed the lawsuit on May 22, 2019.
In her April 15, 2019 email to Burke's counsel, the City's attorney stated the City's grievance process was "intended to allow the City the opportunity to investigate and correct errors, if any, and to resolve disputes without the need for litigation" and stated, "If your clients refuse to participate in this process, the investigator will be forced to make a determination without their input."
In the May 15, 2019 emails between the parties' counsel, the City's attorney mentioned her prior email from April 15, 2019, asked Burke's counsel if Burke would "be refusing to allow the investigator the opportunity to interview him and collect the information necessary to investigate his claims" and stated, "[T]he City will continue to seek cooperation from Mr. Burke" and "would like the chance to conduct an investigation and correct errors, if any, outside of litigation." Her email concluded, "Please let me know if and when Mr. Burke will meet with the investigator." Burke's counsel replied, stating, "That is Mr. Burke's decision. I will confer with him."
The City also submitted a May 9, 2019 email from its attorney to Burke's counsel which provided six potential dates for interviews, all of which were May 22, 2019 or thereafter.
Finally, the City submitted excerpts from Burke's deposition. He testified:
Q. And did you refuse to come in for an interview with Mr. Lockley?
A. While I was on FMLA? Yes.
Q. No, after March 22, 2019.
A. On advice of counsel. We had already supplied the information.
Q. So you refused to be interviewed by ELRD?
A. Yes.
Q. Okay. And you understand this policy requires cooperation in the investigative process, right?
A. I do.
Q. Okay. But you refused to participate in the investigation by being interviewed?
A. I refused to be interviewed by Larry Lockley, yes, that's correct.
c. Burke's Response and Evidence
Burke filed a response to the City's plea and submitted evidence with it. Burke's evidence included a declaration by Burke stating, in part:
After I was issued the January 11, 2019 letter, I went to the [ELRD] to speak to Manager Larry Lockley. Lockley's assistant went into his office, where I could see that he was alone. She closed the door, then came back out and told me he was "not available" to see me. I had previously witnessed the ELRD's refusal to discipline IT manager Steve Streiffert, even though he had physically struck another
employee. After being turned away by Mr. Lockley, I had no confidence that the ELRD would handle my issue with care.
Burke's evidence also included the March 22, 2019 letter Burke's counsel sent to the City's attorney on Burke's behalf. The letter is five pages in length, single-spaced, and states in its first paragraph, "This letter shall serve as Mr. Burke's administrative appeal of the City's actions involving his employment under § 554.006 of the Texas Whistleblower Act."
Burke's evidence also included the April 3, 2019 letter the City's attorney sent in response to Burke's counsel's March 22, 2019 letter. In her April 3, 2019 response, the City's attorney told Burke's counsel, in part:
[T]he allegations submitted on behalf of your client will be reviewed pursuant to applicable internal policies and Mr. Burke can expect to hear from an investigator in the coming weeks. At this point, the City is declining your client's demands; however, at the conclusion of the internal investigation, the situation will be reassessed as appropriate and you will be notified if our position has changed.
In addition to referring to his own evidence, Burke's response also referred to certain portions of the City's evidence, including the City attorney's April 15, 2019 email, which we quoted in III.C.2.b. above, and his counsel's April 29, 2019 email to the City's attorney stating that any interview would need to occur in his office.
3. Legal Analysis
To support its argument that Burke failed to satisfy the TWA's statutory prerequisite to suit by actively circumventing its grievance process, the City primarily relies on three cases: one from our court, see Birchett, 2021 WL 3234349, at *7-10, and two from our sister courts, see Fort Worth Indep. Sch. Dist. v. Palazzolo, No. 02-13-00006-CV, 2014 WL 69889, at *8-9 (Tex. App.-Fort Worth 2014, no pet.) (mem. op.); Aguilar v. Socorro Indep. Sch. Dist., 296 S.W.3d 785, 790 (Tex. App.-El Paso 2009, no pet.). According to the City, Birchett is distinguishable, Palazzolo and Aguilar are similar, and we should follow the latter two and conclude Burke failed to initiate its grievance proceedings under section 554.006.
Birchett, the only one of these three cases that is binding, is both similar to and different than this case. It is similar, for example, in the City's pleading, which refers to Burke's "initiating [its] grievance procedure on March 22, 2019 regarding his termination." See Birchett, 2021 WL 3234349, at *6 (noting statements in the City's pleading). But it is also different, because unlike Birchett, see id. at *9, after the letter "initiating" its grievance procedure, Burke refused to be interviewed by the City's ELDR manager, as reflected in the deposition testimony we quoted above.
We disagree with the City's view that this difference is dispositive, considering the TWA's plain language, which requires a claimant to "initiate action under" the employer's applicable grievance procedures, not "exhaust" them. See Tex. Gov't Code § 554.006(a) (requiring public employees to "initiate action under" applicable procedures before suing under the TWA); Barrett, 159 S.W.3d at 632 (exhaustion not required).
The facts in Palazzolo and Aguilar are different from those before us. Both involved pre-suit arbitration proceedings. In Palazzolo, 2014 WL 69889, at *5, during his pre-suit arbitration testimony, the claimant led the employer to believe that there was no need for further investigation and no need to correct any potential misconduct. In Aguilar, 296 S.W.3d at 786-87, the claimant, through his counsel, both questioned the arbitrator's authority and refused to tell the arbitrator when or to whom the claimant reported the violation of law. Despite the City's attempt to equate Burke's conduct with theirs, Burke did neither of these things.
But we do not decide the City's third issue based on these distinctions. Instead, we decide it based on a broader point and decline to follow Palazzolo and Aguilar because we simply cannot square their holdings with section 554.006(a)'s plain language and with Barrett's statement that exhaustion of the employer's grievance proceedings is not required.
Given its "actively circumvented" argument, the City asks us, in effect, to apply the following rule from Palazzolo:
[A] claimant satisfies section 554.006's initiation requirement by timely invoking the governmental entity's grievance or appeal procedure before filing a whistleblower action; however, if a party who invokes a grievance or appeal procedure goes on to actively circumvent the governmental entity's efforts to redress the complained-of conduct, that party does not comply with section 554.006's initiation requirement.Palazzolo, 2014 WL 69889, at *5 (emphasis added). We decline to adopt or apply this rule from Palazzolo for four reasons.
First, the italicized language contradicts section 554.006's plain language. See Tex. Gov't Code § 554.006(a)-(b) (referring only to when the employee "initiates action under" and "invokes" the applicable grievance procedures).
Second, with its circular reasoning, the Palazzolo rule effectively adds an exhaustion requirement where none currently exists, and it does so in precisely the same place where the legislature removed an exhaustion requirement in 1995. See Barrett, 159 S.W.3d at 632 ("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.") (emphasis added); Fort Bend Indep. Sch. Dist. v. Gayle, 371 S.W.3d 391, 397-98 (Tex. App.-Houston [1st Dist.] 2012, pet. denied) (noting acknowledgment by the employer in that case that "after the legislature revised section 554.006(a) in 1995 to require initiation rather than exhaustion of a governmental employer's administrative procedure, complete exhaustion is not required").
Restated, the Palazzolo rule is this: a claimant who timely invokes the applicable procedures before filing suit satisfies the initiation requirement, but if the claimant does so but then actively circumvents the procedures, he does not initiate them. In other words, according to Palazzolo, the initiation of a grievance process can later be undone, depending on what the claimant does or does not do after it is initiated. When restated in this way, it is easier to see our sister court's rule for what it is: an exhaustion requirement, as the determinative factor is the claimant's post-initiation/post-invocation conduct.
Third, we are not alone in our reasoning. We find persuasive our sister court's conclusion and reasoning in Gayle, which involved similar arguments. In that case, the TWA claimant submitted a lengthy complaint containing detailed information about her allegations, as Burke did here. See Gayle, 371 S.W.3d at 397. Like the City's argument that Burke failed to satisfy section 554.006 because he "actively circumvented" its grievance process, the employer in Gayle argued the claimant failed to satisfy section 554.006 because she failed to "meaningfully participate." Id. at 396. The employer argued that section 554.006 requires claimants who properly initiate a grievance under the employer's procedure to exhaust all administrative procedures available within the first sixty days after initiation of the complaint. Id. at 397. Our sister court rejected that argument based on (1) section 554.006(a)'s plain language, (2) its history, and (3) the remainder of section 554.006's text, which the court believed supported its position. Id. at 397-98.
The court explained, persuasively, in our view:
The word "initiate" in subsections (a) and (d) must have the same meaning. But "initiate" in subsection (d) cannot mean "the meaningful participation" in the grievance procedure; otherwise, the sixty-day period within which the employee cannot file suit would not commence on the date on which a grievance was filed but only after the employee meaningfully participates in the grievance procedure. This would extend the time during which a claimant was barred from bringing her claims in a court of law. Moreover, the school's attempt to transplant the concept of "meaningful participation" into the initiation requirement would create disputes about when the deadline commenced because the school offers no line to demarcate what quality of participation would satisfy the initiation requirement and the commencement of the sixty-day deadline. If we were to conclude that meaningful participation is required, we would leave parties and trial courts with no guidelines for this critical jurisdictional requirement.Gayle, 371 S.W.3d at 398. Here, while the City carefully avoids describing its argument in terms of an exhaustion requirement, as we discussed in connection with the Palazzolo rule the City would have us adopt, the City is asking us to conclude such a requirement exists, at least in practical terms. We decline to do so for reasons we identify in this opinion and our sister court identified in Gayle. Id.
Fourth, we have addressed similar arguments before. In City of Dallas v. Watts, 248 S.W.3d 918, 921-22 (Tex. App.-Dallas 2008, no pet.), the employer argued a TWA claimant failed to comply with portions of its policies that required the employee to be "willing to discuss the evidence and answer questions," and that set out consequences of an employee's failure "to personally appear at a hearing." Id. at 921. We held a fact issue existed regarding jurisdiction, stating, "The City's arguments do not establish its plea to the jurisdiction as a matter of law [and instead] highlight the fact dispute between the parties [on] whether [the employee's] actions were enough to 'initiate' the City's procedures for [TWA] purposes." See id. at 921- 22.
We reach a similar conclusion here. Based on the record before us, we conclude the City did not establish as a matter of law that Burke failed to "initiate action under" its grievance process as required by section 554.006(a). Even if we look solely at the City's evidence, we believe a fact issue exists and that reasonable and fair-minded jurors could differ in their conclusions on the question of whether Burke "initiated action under" the City's grievance procedures. See Tex. Gov't Code § 554.006(a) (requiring public employees to "initiate action under" applicable procedures before suing under the TWA). Even if we assumed the City met its initial burden and also considered Burke's evidence, the fact issue is thrown into even sharper relief.
Thus, we hold the trial court did not err in denying the City's plea to the jurisdiction on this issue. See Tex. Gov't Code § 554.006(a) (public employee must "initiate" action under the employer's applicable grievance or appeal procedures before suing under TWA); Barrett, 159 S.W.3d at 632 (exhaustion not required); Alamo Heights, 544 S.W.3d at 771 (trial court must deny a plea to the jurisdiction if genuine issues of material fact exist on the issues raised in the plea); Gayle, 371 S.W.3d at 399 (affirming trial court's denial of plea in similar context); Watts, 248 S.W.3d at 922 (same).
We overrule the City's third issue.
IV. Conclusion
We affirm the trial court's April 18, 2022 order denying appellant's plea to the jurisdiction.
JUDGMENT
In accordance with this Court's opinion of this date, the trial court's April 18, 2022 order denying appellant's plea to the jurisdiction is AFFIRMED.
It is ORDERED that appellee RONALD BURKE recover his costs of this appeal from appellant CITY OF FORT WORTH, TEXAS.
Judgment entered.