ACCEPTED 07-15-00078-CV SEVENTH COURT OF APPEALS AMARILLO, TEXAS 4/24/2015 11:08:22 AM Vivian Long, Clerk
No. 07-15-00078-CV
FILED IN 7th COURT OF APPEALS IN THE COURT OF APPEALS AMARILLO, TEXAS FOR 4/24/2015 11:08:22 AM THE SEVENTH DISTRICT OF TEXAS VIVIAN LONG AT AMARILLO TEXAS CLERK
CITY OF LUBBOCK, Appellant
v.
LAZARO WALCK, Appellee
On Appeal from the 72nd District Court of Lubbock County, Texas Trial Court Cause No. 2014-509,907
APPELLANT CITY OF LUBBOCK’S BRIEF
CITY OF LUBBOCK, TEXAS
Jeff Hartsell Assistant City Attorney State Bar No. 09170275 P O Box 2000 Lubbock, Texas 79457 Telephone No.: 806-775-2222 Facsimile No.: 806-775-3307 jhartsell@mylubbock.us
ORAL ARGUMENT REQUESTED ATTORNEY FOR APPELLANT CITY OF LUBBOCK IDENTITY OF PARTIES AND COUNSEL
Appellant City of Lubbock certifies that the following is a complete list of the parties, attorneys, and any other person who has any interest in the outcome of this lawsuit:
Attorneys for Apellant Jeff Hartsell Assistant City Attorney P O Box 2000 Lubbock, Texas 79457 jhartsell@mylubbock.us
Attorney for Appellee Phil A. Johnson Jenkins, Wagnon & Young, P.C. P O Box 420 Lubbock, Texas 79408-0420 806-796-7351 Fax 806-771-8755 State Bar No. 24056820 pjohnson@jwylaw.com
Trial Court Judge The Honorable Ruben Reyes 72nd District Court for Lubbock County P O Box 10536 Lubbock, Texas 79401 rreyes@co.lubbock.tx.us
i TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL……………………………………….i
TABLE OF CONTENTS…………………………………………………………..ii
INDEX OF AUTHORITIES………………………………………………………iv
STATEMENT OF THE CASE…………………………………………………….1
REQUEST FOR ORAL ARGUMENT…………………………………………….1
ISSUES PRESENTED……………………………………………………………..1
STATEMENT OF FACTS………………………………………………………....2
SUMMARY OF THE ARGUMENT………………………………………………5 ISSUE OF LAW #1 THE TRIAL COURT DID NOT HAVE JURISDICTION OVER THE CLAIMS PRESENTED IN THIS LAWSUIT AS PLAINTIFF DID NOT COMPLY WITH SECTION 544.006(a) OF THE TEXAS GOVERNMENT CODE BY PRESENTING SUCH CLAIMS IN THE GRIEVANCE PROCESS……………………………………………………………………5
ISSUE OF LAW #2 PLAINTIFF CANNOT SUE THE CITY REGARDING THE SUSPENSION OF HIS OUTSIDE WORK PERMIT SINCE HE DID NOT FILE SUIT WITHIN THE 90 DAY LIMITATIONS PERIOD…………….7
ISSUE OF LAW #3 CITY WAS NOT PUT ON NOTICE THAT PLAINTIFF HAD A WHISTLEBLOWER CLAIM AS IT RELATES TO THE SUSPENSION OF HIS OUTSIDE WORK PERMIT……………………………………….8
ii ISSUE OF LAW #4 PLAINTIFF HAS NO PRIVATE RIGHT OF ACTION TO SEEK A $15,000 CIVIL PENALTY AGAINST THE CHIEF OF POLICE…………8
ARGUMENT……………………………………………………………………….9 ISSUE OF LAW #1 THE TRIAL COURT DID NOT HAVE JURISDICTION OVER THE CLAIMS PRESENTED IN THIS LAWSUIT AS PLAINTIFF DID NOT COMPLY WITH SECTION 544.006(a) OF THE TEXAS GOVERNMENT CODE BY PRESENTING SUCH CLAIMS IN THE GRIEVANCE PROCESS……………………………………………………………………9
ISSUE OF LAW #2 PLAINTIFF CANNOT SUE THE CITY REGARDING THE SUSPENSION OF HIS OUTSIDE WORK PERMIT SINCE HE DID NOT FILE SUIT WITHIN THE 90 DAY LIMITATIONS PERIOD…………...21
ISSUE OF LAW #3 CITY WAS NOT PUT ON NOTICE THAT PLAINTIFF HAD A WHISTLEBLOWER CLAIM AS IT RELATES TO THE SUSPENSION OF HIS OUTSIDE WORK PERMIT……………………………………...23
ISSUE OF LAW #4 PLAINTIFF HAS NO PRIVATE RIGHT OF ACTION TO SEEK A $15,000 CIVIL PENALTY AGAINST THE CHIEF OF POLICE………..25
PRAYER………………………………………………………………………….26
CERTIFICATE OF COMPLIANCE……………………………………………...27
CERTIFICATE OF SERVICE……………………………………………………27
APPENDIX……………………………………………………………………….28
iii INDEX OF AUTHORITIES Cases Aguilar v. Socorro Indep. Sch. Dist., 296 S.W.3d 785 (Tex. App.—El Paso 2009, no pet.) ..........................................15
Alejandro v. Robstown Indep. Sch. Dist., 131 S.W.3d 663 (Tex. App.—Corpus Christi 2004, no pet.) ...............................26
Carter v. Castillo, No. 3:99-CV-0047-X, 2001 U.S. Dist. LEXIS 1264 (N.D. Tex. Feb. 7, 2001)……………………………………………………………………20
City of Houston v. Smith, 01-13-00241-CV, 2014 WL 768330 (Tex. App.—Houston [1st Dist.] Feb. 25, 2014, no pet.) (mem. op.) .....................................................................................23
Dallas County v. Gonzales, 183 S.W.3d 94 (Tex. App.—Dallas 2006, pet. denied) ................................ 19, 20
Davis v. Autonation USA Corp., 226 S.W.3d 487 (Tex. App.—Houston [1st Dist.] 2006, no pet.)....................... 22
Fort Bend Indep. Sch. Dist. v. Gayle, 371 S.W.3d 391 (Tex. App.—Houston [1st Dist.] 2012, pet. denied) .................11
Fort Bend Indep. Sch. Dist. v. Rivera, 93 S.W.3d 315 (Tex. App.—Houston [14th Dist.] 2002, no pet.) .......................11
Fort Worth Indep. Sch. Dist. v. Palazzolo, 02-13-00006-CV, 2014 WL 69889 (Tex. App.—Fort Worth Jan. 9, 2014, no pet.) (mem. op.) ................................................................................. 12, 14, 15, 25
Gregg County v. Farrar, 933 S.W.2d 769 (Tex. App.—Austin 1996, writ denied) ............................. 11, 16
iv Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002) ......................................23
Prairie View A&M Univ. v. Chatha, 381 S.W.3d 500 (Tex. 2012)…………………………………………………...25
Ruiz v. Austin Indep. Sch. Dist., 03-02-00798-CV, 2004 WL 1171666 (Tex. App.—Austin May 27, 2004, no pet.) (mem. op.) ....................................................................................................17
Santi v. Univ. of Texas Health Sci. Ctr. at Houston, 312 S.W.3d 800 (Tex. App.—Houston [1st Dist.] 2009, no pet.)........................22
Tarrant County v. McQuary, 310 S.W.3d 170 (Tex. App.—Fort Worth 2010, pet. denied)................. 11, 23, 24
Univ. of Houston v. Barth, 178 S.W.3d 157 (Tex. App.—Houston [1st Dist.] 2005, no pet.)........................11
Van Indep. Sch. Dist. v. McCarty, 165 S.W.3d 351 (Tex. 2005) ................................................................................18
W. Houston Charter Sch. Alliance v. Pickering, 01-10-00289-CV, 2011 WL 3612288 (Tex. App.—Houston [1st Dist.] Aug. 18, 2011, no pet.) (mem. op.) ........................................................................ 11, 16, 17
Weslaco Indep. Sch. Dist. v. Perez, 13-12-00590-CV, 2013 WL 3894970 (Tex. App.—Corpus Christi July 25, 2013, no pet.) (mem. op.) ...............................................................................................26 Statutes Tex. Gov’t Code Ann. § 554.005 (West 2012)…………………………………………………..21
Tex. Gov’t Code Ann § 544.006 (West 2012)…………………….1, 5, 6, 9, 10, 11, 15, 16, 17, 21
Tex. Gov’t Code Ann. § 544.008 (West 2012)………………………………………………..8, 25
v STATEMENT OF THE CASE
Plaintiff, Lazaro Walck, filed his Original Petition on January 18, 2014 (CR
5). The City of Lubbock filed its Original Answer on February 14, 2014 (CR 11).
The Court entered its Scheduling Order on March 26, 2014 (CR 14). In the
Scheduling Order it directed that all dispositive motions be filed by December 5,
2014 (CR 14).
On October 15, 2014 the City filed its Plea to the Jurisdiction (CR 16-64).
Plaintiff filed his Response to the City’s Plea to the Jurisdiction on December 5,
2014 (CR 66-101).
The Court heard the City’s Plea to the Jurisdiction on January 30, 2015. The
trial court signed an Order Denying the City’s Plea to the Jurisdiction on February
18, 2015 (CR 102, Apx. 1). The City filed its Notice of Appeal on February 27,
2015 (CR 103).
REQUEST FOR ORAL ARGUMENT
Appellant, CITY OF LUBBOCK, respectfully requests oral argument.
ISSUES PRESENTED FOR REVIEW
ISSUE OF LAW #1 — THE TRIAL COURT DID NOT HAVE JURISDICTION OVER THE CLAIMS PRESENTED IN THIS LAWSUIT AS PLAINTIFF DID NOT COMPLY WITH SECTION 554.006(a) OF THE TEXAS GOVERNMENT CODE BY PRESENTING SUCH CLAIMS IN THE GRIEVANCE PROCESS
1 ISSUE OF LAW #2 — PLAINTIFF CANNOT SUE THE CITY REGARDING THE SUSPENSION OF HIS OUTSIDE WORK PERMIT SINCE HE DID NOT FILE SUIT WITHIN THE 90 DAY LIMITATIONS PERIOD
ISSUE OF LAW #3 — CITY WAS NOT PUT ON NOTICE THAT PLAINTIFF HAD A WHISTLEBLOWER CLAIM AS IT RELATES TO THE SUSPENSION OF HIS OUTSIDE WORK PERMIT
ISSUE OF LAW #4 — PLAINTIFF HAS NO PRIVATE RIGHT OF ACTION TO SEEK A $15,000 CIVIL PENALTY AGAINST THE CHIEF OF POLICE
STATEMENT OF FACTS
The facts of this case are not in dispute. Plaintiff is employed as a peace
officer with the City of Lubbock, (Plaintiff’s Petition CR 6), and was also taking
classes at Texas Tech University (Plaintiff’s Petition CR 6). During the first part
of July 2013, Plaintiff attempted to contact Lubbock’s City Manager, Lee Ann
Dumbauld, in an effort to interview her regarding a class project (Plaintiff’s
Petition CR 6-7). In response to this request Dumbauld sent an e-mail to Roger
Ellis, Chief of Police, which read “??????” (CR 37).
On July 8, 2013 the Chief of Police sent an e-mail to Assistant Chief Wayne
Bullock requesting that Plaintiff’s supervisor contact Plaintiff and tell him that it
was improper to contact the City Manager directly without permission from his
chain of command (CR 39). After Plaintiff’s sergeant spoke with him, Plaintiff
2 responded that he did not want to speak with the City Manager about work related
issues, but desired to speak with her regarding a class project (Plaintiff’s Petition
CR 7). Despite Plaintiff’s explanation, Plaintiff was still ordered not to contact the
City Manager (Plaintiff’s Petition CR 7, CR 44).
In response the Plaintiff sent an e-mail to the Mayor and the members of the
City Council complaining about the situation (CR 44). After sending this e-mail
Plaintiff was notified that he was being transferred from his position (Plaintiff’s
Petition CR 7). Plaintiff responded by sending an e-mail to his chain of command
complaining that the transfer was punishment for exercising his First Amendment
rights (CR 46). On July 11 or 12, 2013, Plaintiff further learned that an Internal
Affairs investigation had been opened against him and that, pending the
investigation, his outside work permit would be suspended (Plaintiff’s Petition CR
8, CR 46, CR 59 1st paragraph, CR 85 3rd paragraph).
Grievance Regarding Plaintiff’s Outside Work Permit
In response to his outside work permit being suspended, Plaintiff filed a
grievance, pursuant to the City’s grievance procedure, asking that his outside work
permit be reinstated. This was the only relief he requested. After initially having
his grievance denied by the Chief of Police, (CR 50), Plaintiff pursued his
complaint further by filing a grievance on August 12, 2013 (CR 48, Apx. 6) which
was heard by Assistant City Manager Quincy White on August 26, 2013 (CR 53).
3 On August 29, 2013, Quincy White ruled in Plaintiff’s favor and reinstated
his outside work permit (CR 53, Apx. 7). In his ruling White stated that “It is my
determination that there was no basis or justification to suspend your outside work
permit; therefore, I am directing the Lubbock Police Department to reinstate your
outside work permit immediately” (CR 53, Apx. 7). White also stated that “Your
request to the City Manager was within your rights as a citizen and unrelated to
your employment as either an LPD officer or your outside employment as a
security officer” (CR 53, Apx. 7). It is important to note that the Plaintiff never
requested that he be reimbursed for lost wages, attorney’s fees or any other type of
relief as part of his grievance. While the Plaintiff mentioned that he was losing
money because he could not work his other job, the only relief he requested was
that his outside work permit be reinstated. Plaintiff received all the relief he asked
for in this grievance.
Letter of Reprimand Grievance
On September 25, 2013, after the Internal Affairs investigation was
completed, Plaintiff was issued a letter of reprimand for doing school work while
on duty (CR 56, Apx. 8). Plaintiff filed a grievance as to this reprimand on
September 27, 2013 (CR 58, Apx. 9). This grievance was heard by Assistant City
Manager Scott Snider on October 22, 2013 (CR 62). On October 23, 2013, Snider
ruled in favor of the Plaintiff and ordered that the letter of reprimand be rescinded
4 (CR 62, Apx. 10). Once again, it is undisputed that the only relief the Plaintiff
requested in this grievance was that the reprimand be rescinded. As with his first
grievance, he received all of the relief he requested.
SUMMARY OF THE ARGUMENT
ISSUE OF LAW # 1
THE TRIAL COURT DID NOT HAVE JURISDICTION OVER THE CLAIMS PRESENTED IN THIS LAWSUIT AS PLAINTIFF DID NOT COMPLY WITH SECTION 554.006(a) OF THE TEXAS GOVERNMENT CODE BY PRESENTING SUCH CLAIMS IN THE GRIEVANCE PROCESS
The trial court did not have jurisdiction over the Plaintiff’s claims for lost
wages, attorney’s fees, mental anguish or other relief because the Plaintiff did not
ask for that relief during the grievance process. While the Plaintiff filed two
grievances, one pertaining to the suspension of his outside work permit and another
grievance pertaining to the reprimand he received, he obtained all the relief he
requested in both grievances.
In the first grievance he requested that his outside work permit be reinstated.
The permit was reinstated after the Assistant City Manager heard the grievance
(CR 53, Apx. 7). In the second grievance he requested that the letter of reprimand
be rescinded. The reprimand was rescinded as well (CR 62, Apx. 10). Plaintiff
received all the relief he requested in each grievance.
5 After being granted everything he requested through the grievance process,
Plaintiff filed a lawsuit seeking monetary damages consisting of lost wages,
attorney’s fees, damages for mental anguish as well as a civil penalty against the
Chief of Police. It is undisputed that Plaintiff did not request any of this relief
during his grievances. Plaintiff is required by 554.006(a) to initiate a grievance
before he can file suit. Since he did not initiate a grievance regarding these
damages (i.e. lost wages, attorney’s fees, mental anguish, etc.), the court has no
jurisdiction over the lawsuit.
Plaintiff does not dispute that such relief was not requested during the
grievance process, but asserts that he satisfied the initiation requirement by making
the demands on the City by filing a claim in December 2013. However, as will be
shown in this brief, filing a claim does not satisfy the initiation requirement of
Section 554.006. An employee must present his claims via the grievance process,
not some other process, before the employee can file suit. Since Plaintiff did not
make these claims during the grievance process, he cannot file suit regarding such
claims and the trial court has no jurisdiction over this lawsuit.
6 ISSUE OF LAW # 2
PLAINTIFF CANNOT SUE THE CITY REGARDING THE SUSPENSION OF HIS OUTSIDE WORK PERMIT SINCE HE DID NOT FILE SUIT WITHIN THE 90 DAY LIMITATIONS PERIOD
The trial court also has no jurisdiction as to any issue pertaining to the
suspension of Plaintiff’s outside work permit as he did not file his suit within the
90 day limitations period. Plaintiff’s work permit was suspended on either July 11
or July 12, 2013 (CR 59 1st paragraph, CR 85 3rd paragraph). His grievance was
completed on August 29, 2013 when the Assistant City Manager ordered that the
permit be reinstated (CR 53, Apx. 7). Plaintiff did not file suit until January 18,
2014 (CR 5); well after the 90 day limitations period which would have run in late
November.
Plaintiff does not dispute these facts but attempts to invoke the continuing
violation doctrine asserting that the limitations period should not have begun until
after his second grievance was finished regarding his letter of reprimand.
However, this doctrine is inapplicable in this case. The continuing violation
doctrine applies when a cause of action manifests itself over time and is not
applicable when the adverse employment action is a discrete act. Easily
identifiable acts such as transfer, demotion or the suspension of a work permit are
easily identifiable and discrete actions of which the continuing violation doctrine
does not apply. Since the Plaintiff did not file suit within the limitations period
7 regarding the suspension of his outside work permit he cannot sue the City as to
any issues relating to it.
ISSUE OF LAW # 3
CITY WAS NOT PUT ON NOTICE THAT PLAINTIFF HAD A WHISTLEBLOWER CLAIM AS IT RELATES TO THE SUSPENSION OF HIS OUTSIDE WORK PERMIT
Also, as it relates to the suspension of the outside work permit, Plaintiff
never informed the City during the grievance process that he believed the action
taken by the Chief was due to the fact the Plaintiff had reported an illegal activity.
The employee must put the entity on notice of this fact before filing suit.
However, in that particular grievance, the Plaintiff did not allege that the action
taken by the Chief was because he reported illegal activity (See Plaintiff’s
grievance regarding the work permit at CR 49 and 91, Apx. 6). Since he did not
put the City on notice of any alleged illegal activity, he cannot sue the City
regarding any issue relating to the suspension of his outside work permit.
ISSUE OF LAW # 4
PLAINTIFF HAS NO PRIVATE RIGHT OF ACTION TO SEEK A $15,000 CIVIL PENALTY AGAINST THE CHIEF OF POLICE
Lastly, Plaintiff is attempting to obtain a $15,000 civil penalty against the
Chief of Police pursuant to Section 554.008 of the Government Code. There is no
private right of action to collect this penalty. This penalty can only be collected
through an action by the Attorney General’s Office or other prosecuting attorney. 8 ARGUMENT
ISSUE OF LAW #1
THE TRIAL COURT DID NOT HAVE JURISDICTION OVER THE CLAIMS PRESENTED IN THIS LAWSUIT AS PLAINTIFF DID NOT COMPLY WITH SECTION 554.006(a) OF THE TEXAS GOVERNMENT CODE BY PRESENTING SUCH CLAIMS IN THE GRIEVANCE PROCESS
First Grievance - Plaintiff only Requested his Work Permit be Reinstated
It is undisputed that Plaintiff received all the relief he requested in each
grievance. In the first grievance, pertaining to the suspension of his outside work
permit, the only relief he requested was that his outside work permit be reinstated.
While the Plaintiff said that he was losing wages from not being able to work his
outside job at an IHOP restaurant, he did not request lost wages, or any other relief,
other than reinstatement of his work permit. (See the Plaintiff’s grievance filed on
August 12, 2013 at CR 48, Apx. 6). The City’s Director of Human Resources,
Leisa Hutcheson, attended the grievance hearing and testified that, “In his
grievance regarding his outside work permit, he only requested that the permit be
reinstated. At the grievance hearing he never requested to be reimbursed for lost
wages or attorneys fees.” (CR 64 at paragraph II).
9 Second Grievance – Plaintiff only Requested the Letter of Reprimand be Rescinded
In Plaintiff’s second grievance, pertaining to the written reprimand, the only
relief he requested was to have the letter of reprimand rescinded. (See the
Plaintiff’s grievance filed on September 27, 2013 at CR 58, Apx. 9). This is also
corroborated by the testimony of Leisa Hutcheson. “Also, in his grievance hearing
regarding the Letter of Reprimand, all he requested was that the reprimand be
rescinded. He did not request any other relief” (CR 64 at paragraph II).
Plaintiff Failed to Utilize Grievance Process Regarding his Current Claims
Plaintiff cannot file suit against the City and request damages under the
Whistleblower Act that were not both requested and denied during the grievance
process. The Whistleblower Act requires that the employee utilize the entity’s
grievance process regarding these claims before filing suit. Section 554.006(a) of
the Texas Government Code states:
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.
Plaintiff cannot sue the City for the relief he requests in this lawsuit because he did
not comply with Section 554.006(a) by making a claim for these damages during
the grievance process. “The goal of section 554.006 is ‘to afford the governmental
entity with the opportunity to investigate and correct its errors and to resolve
10 disputes before incurring the expense of litigation.’” Fort Bend Indep. School
District v. Gayle, 371 S.W.3d 391, 395 (Tex. App. – Houston [1st Dist.] 2012, pet.
denied); citing West Houston Charter School Alliance v. Pickering, No. 01-10-
00289-CV, 2011 WL 3612288 (Tex. App. – Houston [1st Dist.] Aug. 18, 2011, no
pet.) (mem. op.) at *8. See also Fort Bend Indep. School District v. Rivera, 93
S.W.3d 315, 318 (Tex. App. – Houston [14th Dist.] 2002, no pet.). In Gregg
County v. Farrar, 933 S.W.2d 769 (Tex. App. – Austin 1996, pet. denied), the
court said, “We find the policies of providing the local body an opportunity to
correct its errors and or promoting judicial economy to be particularly influential in
suits against public entities.” Farrar, Id. at 775. “Notions of administrative
autonomy require further that the agency be given first opportunity to discover and
correct its own errors.” Id. See also Tarrant County v. McQuary, 310 S.W.3d 170,
178-179 (Tex. App. – Fort Worth 2010, pet. denied). In this case, the City was
denied that opportunity.
Failing to Initiate a Grievance is Jurisdictional
Further, the requirement of filing a grievance under 554.006(a) is
jurisdictional. “The grievance-initiation requirement is a jurisdictional
prerequisite, such that compliance is essential to the trial court’s jurisdiction over a
whistleblower action.” Gayle, Id.; citing University of Houston v. Barth, 178
11 S.W.3d 157, 161-162 (Tex. App. – Houston [1st Dist.] 2005, no pet.). Failing to
comply with the statute deprives the trial court’s jurisdiction.
In this case, the Plaintiff did not request any relief in the grievance process
other than reinstatement of his outside work permit in his first grievance, and
rescinding the letter of reprimand in the second grievance. Since he did not request
any other relief in the grievance process, he is precluded from filing suit against the
City of Lubbock as to those issues.
By failing to request these damages in the grievance process the Plaintiff
deprived the City of the opportunity to correct any errors and resolve the dispute.
The Whistleblower Act does not allow an employee to circumvent the grievance
process. Doing so deprives the trial court of its jurisdiction.
Fort Worth Ind. School District v. Palazzolo
The most recent case to discuss this issue is Fort Worth Ind. Sch. Dist. v.
Palazzolo, No. 02-13-00006-CV, 2014 WL 69889 (Tex. App. – Fort Worth, Jan. 9,
2014, no pet.) (mem. op.). In this case, Palazzolo was an assistant principal at
Arlington Heights High School. Between late 2009 and 2010 Palazzolo reported
that district employees falsified attendance records, misused booster funds and
other improprieties including inappropriate sexual relationships. Subsequent to
making this report Palazzolo received an evaluation issued by the principal of
Arlington Heights High School that Palazzolo needed improvement in a particular
12 aspect of his position. Also, Palazzolo learned that he had been reassigned from
Arlington Heights to a different school.
Palazzolo utilized the District’s grievance procedure and filed a grievance
alleging that he had been reassigned because he had made those reports. At the
first stage of the grievance he requested:
1. His reassignment to a different school be revoked; 2. To be paid the same salary he was paid at Arlington Heights; 3. To have his evaluation report voided; 4. To receive no future threats; 5. To be assured of no future retaliation; and 6. To enter into a two year contract.
The hearing officer concluded that Palazzolo had not been retaliated against but
amended his evaluation so that he met or exceeded performance in all areas,
explained that his pay rate would be the same, and that he would be treated fairly.
However, Palazzolo was transferred to Western Hills High School and he did not
receive a new two year contract.
Palazzolo pursued his grievance further and filed a Level II grievance and
finally filed a Level III grievance. At the Level III grievance Palazzolo said that he
was fine with his amended evaluation and was fine with being at either Western
Hills or Arlington Heights High Schools. Since Palazzolo had no further requests
the Board took no action on his claims of whistleblower. Essentially, Palazzolo
indicated to the Board that all his issues had been resolved.
13 However, two weeks later Palazzolo sued the District under the
Whistleblower Act alleging that the District retaliated against him for making the
reports by (1) transferring him and (2) giving him a negative evaluation. The
District filed a Plea to the Jurisdiction as to his claims. The District argued that by
informing the Board that he was fine with the transfer and the amended evaluation
that he circumvented the purpose of the Whistleblower Act’s administrative
initiation requirement and thus could not file suit.
The Court of Appeals agreed with the District and held that since Palazzolo
told the board he was fine with the transfer and the amended evaluation, he could
not file suit regarding those issues as it circumvents the grievance process. The
Court of Appeals held that:
Palazzolo effectively led the Board to believe that as to those complaints, there was no further investigation that needed to occur and, equally important, no need to correct any potential misconduct allegedly committed by FWISD….Palazzolo actively circumvented FWISD’s efforts to redress the complained-of conduct by advising the Board that he had no dispute with his transfer and appraisal report. Palazzolo Id. at *5.
The Court of Appeals held that the trial court did not have jurisdiction as to
Palazzolo’s lawsuit as Palazzolo did not properly initiate the grievance process.
The facts in this case are similar. In both grievances it is undisputed that
Plaintiff received all the relief he requested during the grievance process. In the
first grievance he asked for his work permit to be reinstated and such was granted.
14 In the second grievance he asked that the letter of reprimand be rescinded and that
was granted. Just as in Palazzolo, the Plaintiff led the Assistant City Managers
who decided his grievances to believe that since he received the relief he
requested, everything was fine. To allow Plaintiff to make demands in a
subsequent lawsuit that were not presented in the grievance process would
circumvent the process and such is not allowed as shown by Palazzolo and the
cases cited therein.
Aguilar v. Socorro Indep. School District
Another case that discusses the importance of presenting claims in the
grievance process is Aguilar v. Socorro Indep. School District, 296 S.W.3d 785
(Tex. App. – El Paso, no pet.). In Aguilar, the employee’s attorney filed a
grievance on behalf of the employee and also attended the arbitration hearing
pursuant to the district’s grievance procedures. However, the attorney refused to
participate in the hearing. He refused to provide information when requested or
present information that would allow the arbitrator to reach a decision. In short, he
filed a grievance but did not allow the process to proceed. The court held that the
actions by the attorney thwarted the process and circumvented the purpose of
Section 554.006. The employer did not have an opportunity to correct any
erroneous actions and, as such, the employee could not file suit.
15 Likewise, the City of Lubbock did not get the opportunity to address the
damage issues subsequently raised by the Plaintiff during the grievance process.
Since the Plaintiff did not present these issues to the City during the grievance
process, he cannot sue the City in court and seek these damages.
Plaintiff must utilize the City’s Grievance Process in making Claims
Plaintiff does not assert that he presented a demand for attorney’s fees,
mental anguish, lost wages or any other relief in the grievance process in either of
his grievances. However, he contends he satisfied the requirements of Section
554.006(a) by filing a claim with the City Secretary on December 19, 2013, and
putting the City on notice of his monetary damages and other requests. Plaintiff is
incorrect as he has to bring these claims to the attention of the City during the
grievance process; not by filing a claim with the City Secretary. “A party who
brings suit based entirely on a statutory cause of action must comply with the
statutory prerequisites, which are mandatory and exclusive.” Farrar, 933 S.W.2d
at 769. Section 554.006(a) of the Texas Government Code requires that the
employee utilize the entity’s grievance process before filing suit; not some other
procedure such as the City’s general claims process.
Other cases have demonstrated that using different procedures, outside the
entity’s grievance procedures, will not suffice to comply with Section 554.006(a)’s
initiation requirements. In West Houston Charter School Alliance v. Pickering,
16 No. 01-10-00289-CV, 2011 WL 3612288 (Tex. App. – Houston[1st Dist.], August
18, 2011, no pet.) (mem. op.), Pickering, the school’s administrator, filed a
whistleblower suit against the school. The school asserted that she was barred
from filing the suit as she did not properly initiate a grievance before filing the suit
as required by Section 554.006(a). Pickering contended that she complied with
Section 554.006(a) because she sent a letter to her employer voicing her
complaints that she wished to appeal the school’s decision through a hearing
before an impartial hearing officer or panel. The school responded by informing
Pickering that the school had a grievance process and she could initiate a grievance
pursuant to that procedure. Pickering did nothing further until she filed suit.
Even though the employee sent the letter declaring that she wished to appeal
the school’s decision, the court held that she did not comply with Section
554.006(a) because she never filed a grievance pursuant to the school’s procedures.
“Merely complaining of the school board’s action, without attempting to comply
with the grievance procedure provided by the school, does not satisfy section
554.006’s requirement that a claimant initiate a grievance or appeal before filing
suit.” Pickering, Id. at *8.
The case of Ruiz v. Austin Indep. School District, No. 03-02-00798-CV,
2004 WL 1171666 (Tex. App. – Austin May 27, 2004, no pet.) (mem. op.), held
similarly. In Ruiz, the Ruizes claimed that they had satisfied the requirements of
17 Section 554.006(a) when they met with the director of employee relations and the
school district’s attorney and raised their concerns regarding retaliation under the
Whistleblower Act. The court held that raising these concerns in a meeting,
without filing a formal grievance pursuant to the district’s grievance procedures,
did not satisfy the initiation requirement. As such, they were precluded from filing
suit. Id. at *7.
These cases show that in order to satisfy section 554.006(a), the employee
must raise their concerns pursuant to the grievance process provided by the
employer. They cannot satisfy the initiation requirement by giving notice in some
other way. As the Texas Supreme Court said in 2005, “We also decline to adopt
[the view] that administrative procedures can be ignored if a creative applicant
convinces a court that some other procedure was just as good.” Van Indep. School
District v. McCarty, 165 S.W.3d 351, 353-354 (Tex. 2005). Making demands in a
claim filed with the City does not satisfy the initiation requirement of Section
554.006.
Claim Filed with City Secretary should not be considered a Grievance
It is undisputed that Plaintiff did not request monetary damages from the
City until he filed the claim with the City Secretary on December 19, 2013. (See
Plaintiff’s claim filed at CR 99). This claim is not in compliance with the City’s
established grievance procedures and should not be considered a grievance. (See
18 the City’s Grievance Procedures marked as Exhibit 11 at RR Vol. III, Apx. 5).
First, the claim demanding monetary damages was not filed within ten (10)
business days of the incident as required by Section 5.05A of the grievance
procedures. Second, the claim for monetary damages was not presented to the
Human Resources Department as required by Section 5.05B nor was the grievance
placed on the “Employee Grievance Form” provided by the Human Resources
Department. Plaintiff in no way contemplated that he was filing a grievance when
he filed the claim with the City Secretary. Plaintiff had already filed two (2)
grievances regarding these issues thereby demonstrating that he knew the proper
procedure for doing so. Since Plaintiff never properly initiated a grievance with
the City regarding his claim for monetary damages he is precluded from filing this
lawsuit.
Dallas County v. Gonzales is Distinguishable from the Facts in this Case since Gonzales did not Receive all the Relief he Requested in his Grievance
Plaintiff cites the case of Dallas County v. Gonzales, 183 S.W.3d 94
(Tex.App. – Dallas 2006, pet. denied), to support his position that he can file suit
and collect additional damages. However, the Gonzales case is distinguishable
from the facts in the case at bar. The employee in Gonzales did not receive all the
relief he requested in his grievance. The court noted that the employee asked for
attorney’s fees and expenses in the grievance but did not succeed on those claims.
19 As such, he could file suit to recover the attorney’s fees and expenses, but only
because he filed a grievance seeking those claims and was unsuccessful. The court
distinguished another case cited by Dallas County, Carter v. Castillo, No. 3:99-
CV-0047-X, 2001 U.S. Dist. LEXIS 1264 (N.D. Tex. Feb. 7, 2001), saying that the
Carter case was distinguishable and said, “In that case, the employee filed a
grievance and recovered all the relief he requested in the grievance for the adverse
personnel action he established.” Gonzales, Id. at 102, FN 1. The court indicated
that if the employee receives all the relief he requests in the grievance he would not
be able to file suit requesting any further relief.
Conclusion as to Issue of Law # 1
Plaintiff is precluded from filing this whistleblower lawsuit seeking
monetary damages since he did not request these damages through the City’s
grievance process. He received all the relief he requested in each of his grievances.
As such, the trial court has no jurisdiction over the Plaintiff’s claims and the
Plaintiff’s suit should be dismissed.
20 ISSUE OF LAW # 2
PLAINTIFF CANNOT SUE THE CITY REGARDING THE SUSEPNSION OF HIS OUTSIDE WORK PERMIT SINCE HE DID NOT FILE SUIT WITHIN THE 90 DAY LIMITATIONS PERIOD
As to the Plaintiff’s claims for damages relating to the suspension of his
outside work permit, Plaintiff did not file the suit within the time period prescribed
by the statute. Section 554.005 of the Whistleblower Act states:
Except as provided by section 554.006, a public employee who seeks relief under this chapter must sue 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. Section 554.006(c) tolls the 90 days while the employee is utilizing the
entity’s grievance process and says:
Time used by the employee in acting under the grievance procedure or appeals procedures is excluded……from the period established by Section 554.005.
Plaintiff’s outside work permit was suspended on either July 11 or July 12,
2013 (CR 59 1st paragraph, CR 85 3rd paragraph). While the record is not clear as
to when Plaintiff filed his initial grievance, the record is clear that he filed his final
grievance regarding this issue on August 12, 2013 (CR 48, Apx. 6) and that this
issue was finally decided in his favor on August 29, 2013 (CR 53, Apx. 7).
While 554.006 tolls the 90 day period during the time the employee utilizes
the grievance process, the grievance was concluded on August 29, 2013 when the
21 Assistant City Manager ordered that his outside work permit be reinstated (CR 53,
Apx. 7). Suit was not filed in this case until January 18, 2014 (CR 5). This was
well after the limitations period which would have run in late November.
Continuing Violation Doctrine is Inapplicable
Plaintiff attempts to avoid the 90 day limitations period by consolidating the
two actions together, the suspension of the work permit and the letter of reprimand,
and contending that the limitations period began running from the date the letter of
reprimand was issued to the Plaintiff. Plaintiff attempts to treat these two acts as a
single event and invoke the continuing violation doctrine to avoid the limitations
problem relating to the suspension of the work permit. However, the continuing
violation doctrine is inapplicable as the issues are clearly separate as shown by the
fact that two (2) separate grievances were filed regarding two (2) separate and
distinct actions.
The continuing violation doctrine applies when an unlawful employment
practice manifests itself over time, rather than discrete acts. Davis v. Autonation
USA Corp., 226 S.W.3d 487, 493 (Tex. App. – Houston [1st Dist.] 2006, no pet.);
Santi v. University of Texas Health Science Center at Houston, 312 S.W.3d 800,
804-805 (Tex.App. – Houston [1st Dist.] 2009, no pet.). However, the continuing
violation doctrine does not apply when dealing with discrete acts. “For example, a
claim of hostile work environment is a continuing violation, while ‘termination,
22 failure to promote, denial of transfer, or refusal to hire,’ are discrete acts.” Santi,
312 S.W.3d at 805; citing National Railroad Passenger Corp., v. Morgan, 536
U.S. 101, 114, 122 S.Ct. 2061, 2073, 153 L.Ed.2d 106 (2002). “The ‘focus is on
what event should, in fairness and logic, have alerted the average layperson to
protect his or her rights.’” City of Houston v. Smith, No. 01-13-00241-CV, 2014
WL 768330 (Tex. App. – Houston [1st Dist.] Feb. 25, 2014, no pet.) (mem. op.);
citing Autonation, 226 S.W.3d at 493.
It is easy to see why the continuing violation doctrine does not apply in this
instance. The act of suspending the Plaintiff’s outside work permit is an easily
identifiable and discrete act which alerted the Plaintiff that he needed to do
something to protect his rights. Further, it’s easy to see that the Plaintiff was
alerted because the Plaintiff did, in fact, file a grievance to protect his rights by
requesting reinstatement of his work permit. Since the continuing violation
doctrine does not apply in this case, the Plaintiff cannot sue the City for any
damages relating to the suspension of his outside work permit.
CITY WAS NOT PUT ON NOTICE THAT PLAINTIFF HAD A WHISTLEBLOWER CLAIM AS IT RELATES TO THE SUSPENSION OF HIS OUTSIDE WORK PERMIT
The Plaintiff also did not put the City on notice that he had a whistleblower
claim during his grievance process. In Tarrant County v. McQuary, 310 S.W.3d 23 170 (Tex. App. – Fort Worth 2010, pet. denied), the court held that an employee
must put the entity on notice that the employee is making a claim under the
whistleblower statute to invoke the jurisdiction of the court.
A government employee must provide reasonable notice that she is making a Whistleblower Act claim in the initiation of the grievance or appeal procedures related to the suspension or termination or employment or adverse personnel action. McQuary, 310 S.W.3d at 174.
In McQuary, an employee purported to report violations of law to one of the
deputies at the Sheriff’s Office. However, the employee, upon her termination,
while discussing issues relating to her termination, never mentioned that she
thought she was being terminated because she had made a report of illegal activity
to the Sheriff’s Office.
…the only complaints McQuary made in the documents submitted to the sheriff were that she had not received any evaluations and that Chief Knowles had told her to disregard her job description. The overall subject and tenor of the communications was that she would like to continue her employment with the department…McQuary, Id. at 179.
The court held that since the employee did not put the entity on notice that,
during the grievance process, the adverse employment action taken against her was
because she reported illegal activity that she could not sue under the Whistleblower
Act.
In this case, the Plaintiff did not put the entity on notice that he had a
whistleblower claim during the grievance process regarding his first grievance 24 pertaining to the suspension of his work permit. In that grievance all he reports is
that he believes that suspending his outside work permit during the investigation is
excessive (CR 49, Apx. 6). He never alleges that he had a whistleblower claim or
that the actions by the Chief of Police were taken as a result of him reporting
illegal activity. The City’s Director of Human Resources, Leisa Hutcheson, was at
the grievance hearing and testified that Plaintiff never mentioned that he had a
whistleblower claim (CR 64).
This statutory prerequisite, like other prerequisites under this statute, are
jurisdictional. “Statutory prerequisites to a suit, including the provision of notice,
are jurisdictional requirements in all suits against a governmental entity.”
Palazzolo, 2014 WL 69889, at *3; citing Prairie View A&M Univ. v. Chatha, 381
S.W.3d 500, 510-11 (Tex. 2012). Since the Plaintiff did not put the City on notice
that he had a whistleblower claim during the grievance process regarding his
outside work permit, he cannot file suit against the City under the Whistleblower
Act relating to his outside work permit.
PLAINTIFF HAS NO PRIVATE RIGHT OF ACTION TO SEEK A $15,000 CIVIL PENALTY AGAINST THE CHIEF OF POLICE
In addition to his claims for monetary relief, the Plaintiff seeks a statutory
$15,000 penalty against the Chief of Police pursuant to 554.008 of the
Whistleblower Act. However, there is no private right of action under this statute, 25 as the penalty can only be sought by the Attorney General’s Office or an
appropriate prosecuting attorney. Alejandro v. Robstown Indep. School District,
131 S.W.3d 663, 668 (Tex. App. – Corpus Christi 2004, no pet.). “…[T]he
statutory right to sue and collect a civil penalty under this section belongs to the
‘attorney general or appropriate prosecuting attorney,’ not a private party…”
Weslaco Indep. School District v. Perez, No. 13-12-00590-CV, 2013 WL 3894970
(Tex. App. – Corpus Christi July 25, 2013, no pet.) (mem. op.). There is no
private right of action to sue the Chief of Police under the Whistleblower Act and,
therefore, this claim should be dismissed as well.
PRAYER
WHEREFORE, premises considered, the City of Lubbock prays that the trial
court’s Order be reversed and that this case be dismissed.
Respectfully submitted,
JEFF HARTSELL ASSISTANT CITY ATTORNEY STATE BAR NO. 09170275 jhartsell@mylubbock.us P.O. Box 2000 Lubbock, Texas 79457 (806) 775-2222 (806) 775-3307 FAX
BY: /s/ JEFF HARTSELL 26 CERTIFICATE OF COMPLIANCE
Pursuant to Tex.R.App.P. 9.4(i)(3), undersigned counsel certifies that this
brief contains 5,657 words printed in a proportionally spaced typeface.
/s/ Jeff Hartsell JEFF HARTSELL
CERTIFICATE OF SERVICE
On the 23rd day of April, 2015, a copy of the foregoing Appellant’s Brief
was served on counsel for Appellee as follows:
Phil A. Johnson Jenkins, Wagnon & Young, P.C. P O Box 420 Lubbock, Texas 79408-0420 806-796-7351 Fax 806-771-8755 State Bar No. 24056820 pjohnson@jwylaw.com
27 APPENDIX
1 Order Denying Defendant’s Plea to the Jurisdiction
2 Government Code § 544.005
3 Government Code § 544.006
4 Government Code § 544.008
5 Grievance Procedures of the City of Lubbock
6 Employee Grievance dated August 12, 2013
7 Hearing Findings dated August 29, 2013
8 Letter of Reprimand dated September 25, 2013
9 Employee Grievance dated September 27, 2013
10 Hearing Findings dated October 23, 2013
11 Fort Worth Independent School District v. Palazzolo
12 Aguilar v. Socorro Independent School District
13 West Houston Charter School Alliance v. Pickering
14 Ruiz v. Austin Independent School District
15 Dallas County v. Gonzales
16 Santi v. University of Texas Health Science Center at Houston
17 City of Houston v. Smith
18 Alejandro v. Robstown Independent School District
19 Weslaco Independent School District v. Perez