                                                                                  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.

                                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


      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.

                               ISSUE OF LAW # 4

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,

                                       CITY OF LUBBOCK, TEXAS

                                       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


                                             /s/ Jeff Hartsell
                                             JEFF HARTSELL




                                        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

                                      28
