DISSENTING Opinion Filed August 27, 2020




                                       In The
                            Court of Appeals
                     Fifth District of Texas at Dallas
                               No. 05-19-01290-CV

                  FERNANDO HERRERA, Appellant
                              V.
          DALLAS INDEPENDENT SCHOOL DISTRICT, Appellee

               On Appeal from the 101st Judicial District Court
                            Dallas County, Texas
                    Trial Court Cause No. DC-18-07866

             CONCURRING AND DISSENTING OPINION
                     Opinion by Justice Schenck
      I join the majority in its determination Fernando Herrera was required to

initiate a pre-suit grievance under government code section 554.006 before he filed

suit. I do not join the majority in its determination that a fact issue exists as to

whether Herrera initiated a pre-suit grievance before filing suit because the record

establishes, as a matter of law, Herrera failed to do so. Accordingly, I dissent from

the majority’s fact issue determination and reversal of the trial court’s ruling on

Dallas Independent School District’s (“DISD”) plea to the jurisdiction.
                                     WHISTLEBLOWER CLAIMS

         Herrera asserts a claim against DISD under the Whistleblower Act

(“Whistleblower Act” or the “Act”) in connection with the termination of his

probationary employment contract. See TEX. GOV’T CODE ANN. §§ 554.001–.010.

He does not assert the school district breached his employment contract or engaged

in a discriminatory act. Thus, Herrera’s claim exists only to the extent it is

authorized by the whistleblower statute and is subject to the statutory requirements

under the Act. Compliance with the statutory requirements is a prerequisite to

waiver of DISD’s sovereign immunity. Jordan v. Ector Cty., 290 S.W.3d 404, 406

(Tex. App.—Eastland 2009, no pet.). Pursuant to the Act, Herrera was required to

initiate an action under DISD’s grievance procedure after DISD allegedly violated

the Act by discharging him and prior to filing suit. GOV’T § 554.006.1 As I more

fully discuss below, the sole grievance Herrera submitted concerned a notice from

the superintendent that he intended to recommend termination of Herrera’s


1
    Section 554.006 provides, in relevant part:

         (a) A public employee must initiate action under the grievance or appeal procedures of the
             employing state or local governmental entity relating to suspension or termination of
             employment or adverse personnel action before suing under this chapter.

         (b) The employee must invoke the applicable grievance or appeal procedures not later than
             the 90th day after the date on which the alleged violation of this chapter:

              (1) occurred; or

              (2) was discovered by the employee through reasonable diligence.

TEX. GOV’T CODE ANN. § 554.006(a), (b) (emphasis added).


                                                   –2–
employment contract at the end of the contract period. While Herrera was advised

that such a notice did not amount to a discharge and that his attempt to assert a

grievance at that stage was without effect, he did not initiate a grievance thereafter,

or more particularly, in response to the actual decision to terminate his contract.

Accordingly, he did not comply with the statutory requirements under the Act.

                                   BACKGROUND

      DISD hired Herrera to be a bilingual teacher at a DISD elementary school

under a probationary employment contract. Herrera and two of his colleagues had

several interpersonal conflicts and asserted complaints against each other. An

independent review and investigation ensued and concluded Herrera engaged in

bullying conduct and violated school policy by publicly identifying the name of a

student who had been the subject of a sexual abuse investigation.

      On March 29, 2018, DISD sent Herrera a “Notice of Intent to Recommend

Non-renewal or Termination” of Herrera’s probationary employment contract at the

end of the contract term. More specifically, the letter stated:

      This letter is to provide you with advance notice that the Superintendent
      of Schools of the Dallas Independent School District . . . intends to
      recommend, for approval, to the Board of Trustees pursuant to Texas
      Education Code 21.103 and District Board Policies DFAB (LEGAL) or
      DFBB (LEGAL/LOCAL), that it is in the best interests of the District
      that your contract end at the conclusion of the contract period.

      You have the option to voluntarily resign from the District. If you
      choose to do so, District administration will accept your resignation,
      effective for the end of the 2017-18 school year, and, a recommendation

                                         –3–
        for the non-renewal or termination of your contract will not be made to
        the Board of Trustees.

        Although we understand that this decision is time sensitive, in order for
        this recommendation not to be presented to the Board, your resignation
        must be submitted in the Oracle Self-Service system no later than
        Wednesday, April 11, 2018 at 12:00 pm.

On April 25, Herrera’s attorney faxed a letter to DISD stating:

        I represent Fernando Herrera. This letter is in Response to the letters
        dated March 29, 2018 and March 20, 2018,2 which were received on
        April 2, 2018 and March 31, 2018 respectively. Please accept this letter
        as the written request for an appeal and hearing for the notices received.

(emphasis added). On April 26, Herrera submitted a grievance to DISD complaining

about the March 29 “notice of intent to recommend non-renewal or termination at

the end of the contract term for best interest/excess staff” and the March 20 “excess

notification letter.”3 DISD sent a letter to Herrera advising:

        This letter serves as an official notification that the Level I grievance
        filed on April 27, 2018,4 is now closed. The Notice of Intent to
        Recommend Non-Renewal letter you received is a courtesy
        notification of a potential future action. The notification is not a
        termination letter thus a grievance cannot be submitted. In the future,
        if you receive a Proposed Notice of Non-Renewal or Termination Letter
        you may submit an appeal at that time.

(emphasis added). That letter was signed by the manager of Employee Relations.


2
   The March 20, 2018 letter notified Herrera that his position had been identified as an excess position for
the 2018–19 school year.

3
   While Herrera’s submitted grievance referenced the Whistleblower Act in connection with the notice
concerning the termination recommendation, his asserted Whistleblower Act claim does not concern the
recommendation, but rather his actual termination.
4
  It appears DISD received Herrera’s grievance after hours on April 26 and thus considered it filed on
April 27. Hereinafter, I will refer to Herrera’s grievance as the April 26 grievance.
                                                    –4–
        In the interim, the DISD Board of Trustees met and considered, among other

matters, the superintendent’s recommendation to terminate Herrera’s probationary

employment contract. The trustees ultimately voted to terminate Herrera’s contract

at the end of its term. DISD issued a letter, signed by the President, Board of

Trustees, to Herrera titled “Probationary Teacher Notice of Termination,” stating:

        YOU ARE HEREBY NOTIFIED that the Board of Trustees, at a
        lawfully called meeting on April 26, 2018, voted that it is in the best
        interests of the District, that your probationary contract be terminated
        at the end of the 2017-2018 school year, pursuant to Texas Education
        Code 21.103(a) and DISD Board Policy DFAB (Legal). In accordance
        with the law, the Board’s decision to terminate a probationary employee
        at the end of a contract period is final and may not be appealed.5

Herrera received this letter on May 4.6

        After receiving the termination letter, Herrera did not file a grievance.

Instead, on June 15, he filed his Whistleblower Act lawsuit alleging DISD

terminated his employment in retaliation for his good faith complaints concerning




5
  While Herrera could not appeal the Board’s termination decision to the Commissioner of Education, the
grievance process was still available to him. See TEX. EDUC. CODE ANN. § 21.103(a) (board decision, in
the best interests of the district, to terminate employment of a teacher employed under a probationary
contract at the end of the contract period is final and not appealable); see also GOV’T § 554.006 (requiring
the employee to invoke the applicable grievance procedure as a prerequisite to filing a claim under the
Whistleblower Act).

6
    The majority notes that Herrera had previously been advised that the school district recommended for
cause termination of his employment prior to the expiration of his contract period, which the school district
later withdrew. In that instance, Herrera timely followed the appeal procedure applicable to that
action. The majority does not explain how this affects the statutory question presented here as to whether
Herrera filed a timely and proper grievance concerning the termination of his employment at the end of the
contract period in connection with the instant whistleblower action and the statute he invokes.


                                                    –5–
violations of the law. Herrera did not assert he had fulfilled the Whistleblower Act’s

pre-suit requirements.

       DISD filed a plea to the jurisdiction challenging the pleadings and the

existence of evidence to support subject matter jurisdiction. In doing so, DISD

asserted Herrera failed to initiate DISD’s applicable grievance procedures prior to

filing suit. In support of its plea, DISD included the communications identified

above, the confirmation of Herrera’s April 26 grievance setting forth the information

he electronically submitted, and numerous other documents, including its DGBA

(Local) policy, which allows probationary teachers, like Herrera, to submit certain

grievances to the school board. Herrera did not contradict DISD’s evidence and did

not present any evidence of his own; instead, he referenced the evidence presented

by DISD.

                                           DISCUSSION

       The Whistleblower Act prohibits state and local governmental entities from

suspending or terminating the employment of, or taking other adverse personnel

action7 against, a public employee who in good faith reports a violation of law by

the employing governmental entity, or another public employee, to an appropriate

law enforcement authority, and provides for a private cause of action if certain



   7
       “Personnel action” means an action that affects a public employee’s compensation, promotion,
demotion, transfer, work assignment, or performance evaluation. GOV’T § 554.001(3). Providing a notice
of intent to recommend termination is not an adverse personnel action.
                                                –6–
prerequisites are met and the claim is asserted within the applicable statute of

limitations. GOV’T §§ 554.002(a), 554.003, 554.005, 554.006.

      As a prerequisite to suit under the Whistleblower Act, the complainant must

initiate action under the state or local government employer’s grievance or appeal

procedures before suing and must do so within 90 days of the date the employer’s

violation occurred or was discovered by the employee through reasonable diligence.

See id. § 554.006(a), (b). Section 554.006’s requirement that an employee initiate a

grievance prior to filing suit under the Whistleblower Act is designed to “afford the

employer an opportunity to correct its errors by resolving disputes before litigation.”

City of Fort Worth v. Shilling, 266 S.W.3d 97, 102 (Tex. App.—Fort Worth 2008,

pet denied). The Act’s requirement that the complainant initiate action under the

employer’s grievance or appeal procedures is a jurisdictional prerequisite to suit.

City of Madisonville v. Sims, No. 18-1047, 2020 WL 1898540, *3 (Tex. Apr. 17,

2020). The onus is thus on the employee to show that he timely initiated the

grievance process once the governmental employer has pierced the pleading to show

jurisdiction does not exist. See El Paso Indep. Sch. Dist. v. Kell, 465 S.W.3d 383,

386 (Tex. App.—El Paso 2015, pet. denied); W. Houston Charter Sch. Alliance v.

Pickering, No. 01-10-00289-CV, 2011 WL 3612288, at *3 (Tex. App.—Houston

[1st Dist.] Aug. 18, 2011, no pet.) (mem. op.).

      All parties to this case agree that DISD DGBA (Local) policy requires

“[e]mployees . . . [to] initiate a dispute resolution process under this policy within
                                         –7–
the time specified by law and policy.” Thus, once one concludes that the policy

applies, the employee must initiate the grievance process concerning the termination

of his contract within the time frame specified in the Whistleblower Act. GOV’T

§ 554.006(b).

      The undisputed evidence establishes the only grievance Herrera attempted to

initiate was his April 26 complaint identifying the “incident date” as March 29, 2018,

by which he claimed the “recommend[ation] of non-renewal or termination was in

retaliation for his having made good faith reports to the appropriate law enforcement

authorities on other employees that violated the law.” Thus, the issue presented here

is whether that attempt satisfied the requirements of section 554.006 with respect to

Herrera’s current complaint about the actual, subsequent termination of his

employment.

      The majority concludes this complaint raises a fact issue concerning Herrera’s

satisfaction of the section 554.006 requirements. I conclude it does not. The plain

language of section 554.006, DGBA (Local) policy concerning grievances,

Herrera’s April 26 grievance, and case law establish a grievance filed before the

alleged violation of the Whistleblower Act does not satisfy the prerequisites of

section 554.006.    See Pickering, 2011 WL 3612288, at *6 (letter predating

Pickering’s alleged constructive discharge did not initiate grievance process);

Jordan, 290 S.W.3d at 406 (grievance Jordan filed prior to her termination could not

have addressed her wrongful termination under Whistleblower Act because the
                                         –8–
termination had not yet occurred and thus could not meet the requirements of section

554.006(a)).

      The majority’s effort to distinguish Pickering and Jordan rests on its

erroneous conclusion that attempting to grieve a notice of a recommendation of

termination, which may never come to fruition, is synonymous to grieving an

ultimate termination decision. It is only the latter to which the Whistleblower Act is

directed.   GOV’T § 554.006(a), (b).       Similarly, the majority’s reliance on

employment law cases—not involving the Whistleblower Act—that look to the date

an employee is placed on notice of a forthcoming adverse action for calculation of

the limitations periods is misplaced. Had Herrera brought such a claim and had the

school district raised the issue of limitations, those cases might be instructive. But

the issue presented here is strictly one of the construction of the statute Herrera

invoked. That provision is unambiguously addressed to actual “action,” including

“suspension” or “termination” of employment, and likewise requires the filing of the

grievance “after” that “action.” Id.

      As stated above, section 554.006(b) requires that the employee invoke the

applicable grievance or appeal procedures not later than the 90th day after the date

on which the alleged violation of the Whistleblower Act occurred or was discovered

by the employee through reasonable diligence. Id. § 544.006(b). Here, according to

Herrera’s pleadings, the alleged violation of the Whistleblower Act arose from the

termination of his probationary employment contract, which was received by
                                         –9–
Herrera on May 4. Prior to the Board of Trustees’ vote to terminate Herrera’s

contract, there could be no violation of the Whistleblower Act to grieve, and Herrera

had already been notified that his earlier attempt to initiate a grievance in connection

with the recommendation was improper and had been closed.8 Because the record

clearly establishes that Herrera did not initiate a grievance after the school board

terminated his contract and gave him notice of its decision, he failed as a matter of

law to satisfy the jurisdictional prerequisite to suit under section 554.006.

                                             CONCLUSION

        The district court lacked jurisdiction over Herrera’s claims and properly

granted DISD’s plea to the jurisdiction. Consequently, I dissent from the majority’s

conclusion that a fact issue exists as to whether DISD’s immunity from suit has been

waived and reversal of the trial court’s dismissal order.




                                                       /David J. Schenck/
                                                       DAVID J. SCHENCK
                                                       JUSTICE
191290DF.P05




8
   The majority’s contention that a fact finder could conclude Herrera’s April 26, 2019 grievance, which
was not submitted to any decisional body because an act for which a grievance lies had not occurred, timely
grieved his subsequent termination is not supportable and would thwart section 554.006’s provision giving
the grievance or appeal authority 60 days to make a final decision. GOV’T § 554.006(d). Logically, if a
decision in the first instance had not yet been made, the appropriate authority would not be in a position to
initiate a review of that decision, much less adhere to and track the statutory 60-day deadline.
                                                   –10–
