

Opinion issued April 5, 2012.


In The
Court of
Appeals
For The
First District
of Texas
————————————
NO. 01-11-00788-CV
———————————
Fort Bend Independent School District, Appellant
V.
Alice Gayle, Appellee

 

 
On Appeal from the 434th District Court
Fort Bend County, Texas

Trial Court Case No. 11-DCV-186909
 

OPINION
Fort
Bend Independent School District (the “school”) appeals from the trial court’s
denial of its plea to the jurisdiction, which challenges Alice Gayle’s
whistleblower suit against the school. In three issues, the school contends
that the trial court erred in denying its plea to the jurisdiction because
Gayle failed to “initiate” the school’s grievance procedures—a jurisdictional
prerequisite to suit. Because we conclude that Gayle properly initiated the
school’s grievance procedure before filing her whistleblower action, we affirm
the trial court’s denial of the school’s plea to the jurisdiction.
Background
          Gayle
was employed as an administrator at Fort Bend Independent School District. She
resigned in early November 2010, after learning that the school’s
administration had recommended her termination. On Friday, November 19, Gayle’s
legal counsel sent a written grievance to the school, asserting that Gayle had
been constructively discharged in retaliation for reporting the school’s
failure to comply with certain requirements of the Even Start Family Literacy
Grant. 
The school received
the grievance on Monday, November 22, and contacted Gayle’s counsel to schedule
a grievance hearing pursuant to the school’s grievance policy. The school
suggested December 3 or 6, after the school’s Thanksgiving holidays, as
potential dates for the grievance hearing. Gayle’s counsel stated that she was
unavailable on December 6 but would check her schedule for December 3 and call
back. On November 30,[1]
the school, not having heard back from Gayle’s counsel, sent her an email
reminding her that she was checking her availability for December 3 and asking
her to “[p]lease let me know as soon as possible if you would like to schedule
the grievance conference for December 3 at 9:00 a.m., or if you would prefer to
try to schedule the conference for another mutually agreeable date and time.”
The following day, Gayle’s counsel responded to the email, stating “I am so sorry
to take this long to respond to you. I would prefer to schedule the conference
for a mutually agreeable date and time,” but stated nothing else about
scheduling the grievance hearing.
When Gayle’s
counsel did not suggest any dates or times agreeable to her, the school again
suggested hearing dates: December 10 or 13. Gayle’s counsel did not respond. On
December 9, the school followed up again, asking that Gayle’s counsel suggest
alternative dates if she was unavailable on the dates offered. On Friday, December
10, Gayle’s counsel replied that she was unavailable for the dates offered by
the school but had availability in the first two weeks of January. The school
responded the following Tuesday, December 14, with suggested dates of January
6, 7, or 10. Gayle’s counsel did not respond until Friday, January 7, stating
that the school’s email reply had gone into her “junk mail,” where she had just
discovered it. She stated that she was unavailable on the dates offered by the
school but was available on January 13, 14, 18 or 19. On Monday, January 10,
the school responded with available hearing times on January 13 and 14. On
January 12, Gayle’s counsel confirmed her availability for the hearing on
January 14. The next day—the day before the scheduled grievance hearing—Gayle
filed this whistleblower lawsuit against the school. Her counsel then sent the
school a notice that she had filed a lawsuit and that the grievance hearing was
therefore “moot.” 
The school filed a
plea to the jurisdiction, asserting that Gayle had not complied with its
grievance procedure’s hearing requirement and, thus, had not satisfied the
Texas Whistleblower Act’s jurisdictional prerequisites to suit. The trial court
denied the school’s plea, and this appeal followed. See Tex. Civ. Prac. & Rem. Code Ann. §
51.014(a)(8).
Standard
of Review
The school’s plea
to the jurisdiction is a dilatory plea that seeks dismissal of Gayle’s claims
against it for lack of subject-matter jurisdiction. Bland Indep. Sch. Dist.
v. Blue, 34 S.W.3d 547, 554
(Tex. 2000); Univ. of Houston v. Barth, 178 S.W.3d 157, 160–61 (Tex. App.—Houston [1st Dist.] 2005, no
pet.). Subject-matter jurisdiction is essential to the authority of a court to
decide a case. Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443 (Tex. 1993); Barth, 178 S.W.3d at 161. The existence of
subject-matter jurisdiction is a question of law that we review de novo. State
Dep’t of Hwys. & Pub. Transp. v. Gonzalez, 82 S.W.3d 322, 327 (Tex. 2002); Kamel v. Univ. of Tex.
Health Sci. Ctr. at Houston,
333 S.W.3d 676, 681 (Tex. App.—Houston [1st Dist.] 2010, pet. denied).
When a plea to the
jurisdiction challenges the existence of jurisdictional facts, we apply a
standard of review that mirrors the standard applicable to traditional summary
judgments. Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 228 (Tex. 2004); see
also Tex. R. Civ. P. 166a(c).
The school bore the initial burden of establishing that one or more facts
necessary to jurisdiction does not exist. See id. (observing that this
standard protects claimant from having to put on her case simply to establish
jurisdiction); Porretto v. Patterson, 251 S.W.3d 701, 711 (Tex. App.—Houston [1st Dist.] 2007, no
pet.). If the school satisfied its initial burden, the burden shifted to Gayle
to put on evidence raising a fact issue as to jurisdiction. Miranda, 133 S.W.3d at 228; Patterson, 251 S.W.3d at 711. In determining
whether these burdens have been met, we review the evidence in the light most
favorable to Gayle, indulging every reasonable inference in her favor and
resolving any doubts in her favor. Miranda, 133 S.W.3d at 228.
The
School’s Plea to the Jurisdiction
The school asserts
that the trial court lacks jurisdiction over Gayle’s whistleblower action
because filing a written notice of grievance but then refusing to participate
in a hearing did not satisfy the Whistleblower Act’s requirement that she “initiate”
a grievance and allow the school sixty days to attempt to resolve the grievance
before filing suit. See W. Houston Charter Sch. Alliance v.
Pickering, No. 01-10-00289-CV, 2011 WL 3612288, at *8 (Tex. App.—Houston
[1st Dist.] Aug. 18, 2011, no pet.); Aguilar v. Socorro Indep. Sch. Dist., 296 S.W.3d 785, 789–90 (Tex.
App.—El Paso 2009, no pet.). Gayle responds that her written notice of
grievance was sufficient to satisfy the Act’s grievance-initiation requirement.
Citing University of Texas Medical Branch v. Barrett, she also argues that the proper
remedy for a failure to allow the school sixty days to resolve her grievance is
abatement, not dismissal. 159 S.W.3d 631, 632 & n.5 (Tex. 2005).
A.      The Whistleblower Act’s grievance-initiation
requirement
As a prerequisite
to initiating suit under the Whistleblower Act, a claimant must first “initiate
action under the grievance or appeal procedures” of her governmental employer. Tex. Gov’t Code Ann. § 554.006(a) (West
2004). After the claimant initiates the grievance or appeal, the employer has
sixty days to address the dispute through its administrative process before the
claimant may file a lawsuit. Id. §
554.006(d). “If a final decision is not rendered before the 61st day after the
date [grievance or appeal] procedures are initiated,” the claimant has two
choices: she may either exhaust the remedies available to her under the
employer’s grievance procedure or terminate the grievance and file suit. Id. Thus, section 554.006 does not
require a claimant to exhaust her administrative remedies before filing suit;
instead, she is only required to initiate the grievance or appeal and allow the
grievance authority sixty days in which to render a decision. See Barrett, 159 S.W.3d at 632; Pickering,
2011 WL 3612288, at *8; Hitchcock Indep. Sch. Dist. v. Walker, No. 01-10-00669-CV, 2010 WL 5117912
(Tex. App.—Houston [1st Dist.] Dec. 16, 2010, no pet.) (mem. op.). 
The goal of section
554.006 is “to afford the governmental entity with the opportunity to
investigate and correct its errors and to resolve disputes before incurring the
expense of litigation.” Pickering, 2011 WL 3612288, at *8 (quoting Walker, 2010 WL 5117912, at *6); see also Fort Bend Indep. Sch. Dist. v.
Rivera, 93 S.W.3d 315, 318 (Tex. App.—Houston [14th Dist.] 2002,
no pet.) (section
554.006 is “intended to afford the governmental entity an opportunity to
correct its errors by resolving disputes before facing litigation, as the
expense of litigation is borne ultimately by the public”). The
grievance-initiation requirement is a jurisdictional prerequisite, such that
compliance is essential to the trial court’s jurisdiction over a whistleblower
action. Barth, 178
S.W.3d at 161–62. When a plaintiff has not satisfied this requirement, her
lawsuit is barred by governmental immunity and must be dismissed. See id.
B.      The school’s grievance policy
The school’s
grievance policy allows employees to initiate a formal grievance process by
filing a written complaint with the appropriate school administrator within ten
days of the complained-of school action. Once the complaint is filed, the
administrator “shall investigate as necessary and hold a conference with the
employee within ten District business days after receipt of the written
complaint.” The administrator must then provide the employee a written response
to her complaint within ten business days after the hearing, setting forth the
basis for the administrator’s decision. If the employee is not satisfied with
the administrator’s decision, she may file a written appeal to the Human
Resources Department within ten business days after receiving the written
response. The grievance policy also provides for a subsequent appeal to the
school board if the employee is not satisfied with the Human Resources
Department’s decision.
C.      Gayle’s
initiation of formal grievance
          Gayle
contends that she satisfied section 554.006 by filing her written notice of
grievance pursuant to the school’s grievance policy. The school admits that
Gayle filed a written notice of grievance and does not contend that the notice
failed to conform to its grievance procedure. Instead, the school contends
section 554.006 requires Gayle to do more than file the notice and stall until
she files suit—it requires her to participate in the school’s grievance
procedure during the government-mandated sixty-day period so that the school
has an opportunity to investigate and resolve the dispute before incurring
litigation costs. By thwarting the school’s efforts to have a hearing—the
second step in the school’s grievance procedure—the school asserts that Gayle
failed to “initiate” a grievance in accordance with the school’s procedure. 


 
Section 554.006 of
the Texas Government Code provides:
(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 then 90th day after the date on which the alleged
violation of this chapter:
 
(1) occurred; or
 
(2) was discovered by the employee through reasonable diligence.
 
(c) Time used by the employee in acting under the grievance or
appeal procedures is excluded, except as provided by Subsection (d), from the
period established by Section 554.005.
 
(d) If a final decision is not rendered before the 61st day
after the date procedures are initiated under Subsection (a), the employee may
elect to:
 
(1) exhaust the applicable procedures under Subsection (a), in
which event the employee must sue not later than the 30th day after the date
those procedures are exhausted to obtain relief under this chapter; or
 
(2) terminate procedures under Subsection (a), in which event
the employee must sue within the time remaining under Section 554.005 to obtain
relief under this chapter.
 
Tex. Gov’t
Code Ann. § 554.006(a). 
“‘[T]he Act does
not dictate what actions are required to “initiate” the appeals procedure.’” Walker, 2010 WL 5117912, at *3 (quoting Moore
v. Univ. of Houston-Clear Lake,
165 S.W.3d 97, 102 (Tex. App.—Houston [14th Dist.] 2005 no pet.). Texas courts
of appeals have addressed a number of disputes over whether a claimant’s
actions were sufficient to “initiate” a grievance or appeal procedure within
the meaning of the statute and have focused on the need to provide reasonable
notice “that is, fair notice of the employee’s intent to appeal a disciplinary
decision and notice of which decision [] the employee intends to appeal.” Walker, 2010 WL 5117912, at *3 (internal
quotes and citations removed) (quoting Tarrant Cnty. v. McQuary, 310 S.W.3d 170, 177 (Tex. App.—Fort
Worth 2010, pet. denied)).
The school acknowledges that, after
the legislature revised section 554.006(a) in 1995 to require initiation rather
than exhaustion of a governmental employer’s administrative procedure, complete exhaustion is
not required. But, relying on Pickering and
Aguilar, the school contends
that during the sixty-day resolution period, the employee must (1) give the
entity a reasonable opportunity to hear and decide the grievance and (2) attend
and meaningfully participate in a hearing mandated by the grievance procedure. See Pickering,
2011 WL 3612288, at *8;  Aguilar, 296 S.W.3d at 789–90. The school
asserts that Gayle has not satisfied the initiation requirement of subsection
(a) because she failed to participate meaningfully in the grievance process for
sixty days before filing her lawsuit. Thus, the school contends, she
circumvented the purpose of the statute: to give the governmental entity “the
opportunity to investigate and correct its errors and to resolve [this dispute]
before incurring the expense of litigation.” Pickering, 2011 WL 3612288,
at *8 (quoting Walker, 2010 WL
5117912, at *6, internal quotes removed);  Aguilar, 296 S.W.3d at 789–90 (using same language).  
In Pickering, this Court recognized that,
even if a school has notice of an employee’s complaint, that notice will not
satisfy section 554.006 if the employee refuses to initiate a grievance that
complies with the employer’s procedure for grievances. 2011 WL 3612288, at *8.
Pickering sent a letter to her school district employer in which she voiced her
complaints regarding the school’s handling of her employment dispute and stated
that she wished to appeal the school’s decision through a hearing before an
impartial hearing officer or panel on a specified date. Id. at *3. The school responded by informing Pickering that the
school had a grievance procedure and she could initiate a grievance pursuant
that procedure, of which it provided her a copy. Id. at *4. The appellate record did not show that Pickering took
any further action to initiate a grievance pursuant to the school’s procedure. Id. Instead, she argued that she was
exempt from the grievance procedure. Id.
at *5. We determined that she was not exempt and had not initiated a grievance
pursuant to the school’s grievance procedure, and therefore, the school was
entitled to dismissal of Pickering’s lawsuit. Id. at *5–9; see also Ruiz v. Austin Indep. Sch. Dist., No. 03–02–00798–CV, 2004 WL
1171666, at *7 (Tex. App.—Austin May 27, 2004, no pet.) (holding that employee
who had copy of grievance procedure did not satisfy section 554.006 by raising
concerns in meetings with school and its attorneys when employee failed to
formally initiate a grievance).
This case is
distinguishable from Pickering for
two reasons. First, Pickering did not
address the issue presented here of whether the initiation requirement mandates
participation in a hearing after a properly filed grievance. Second, unlike
Pickering, Gayle initiated a grievance in precisely the manner provided for
under the school’s grievance procedure. This distinction is fundamental to the
outcome of the case—section 554.006(a) requires only that Gayle “initiate
action under the [school’s] grievance or appeal procedures.” Tex. Gov’t Code Ann. § 554.006(a).
Gayle did this; Pickering did not. See
Pickering, 2011 WL 3612288, at
*8.
In Aguilar, the employee’s attorney filed a
grievance and attended the arbitration hearing but refused to participate in
the hearing. Aguilar, 296 S.W.3d
786–87. Aguilar’s attorney admitted
that the grievance was filed simply to comply with the administrative
procedures and that the proper forum would be a court of law. Id. at 790. The El Paso court stated
that “[b]y not complying with the arbitrator’s requests for information or
presenting information that would allow the arbitrator to reach a decision,
Aguilar’s action did not serve the purpose of the statute—to afford the
employer ‘the opportunity to correct its errors by resolving disputes before
being subjected to the expense and effort of litigation.’” Id. (quoting Marin,
19 S.W.3d at 441). Asserting that “Aguilar’s tactical decision completely
circumvent[ed] the purpose of Section 554.006,” the court affirmed the trial
court’s dismissal for lack of jurisdiction. Id.
This case is
factually distinguishable from Aguilar.
Unlike Aguilar, who refused to prove the school with any information with which
to attempt to investigate and resolve his complaint, Gayle filed a lengthy complaint containing detailed information
about her allegations. Moreover, to the extent Aguilar supports the school’s position that a claimant who has
properly initiated a grievance under the school’s procedure must also exhaust
all administrative procedures available within the first sixty days after
initiation in order to satisfy subsection (a)’s “initiat[ion]” requirement, we
decline to adopt that position for three reasons.[2]

First, we must
follow the plain language of the statute. While the Legislature may have envisioned
not merely sixty-days’ notice but also sixty-days’ participation in the
administrative process, the statute requires only “initiat[ion],” and we are
bound by that language. A
court should interpret a statute by reference to its language alone when the
court can do so. Fresh Coat v. K-2, Inc., 318 S.W.3d 893, 901 (Tex. 2010).
The meaning of “initiate” is plain: it means to commence the process. See Shorter
Oxford English Dictionary, vol. 1 at 1385 (Sixth ed. 2007) (defining “initiate”
as “[b]egin, introduce, set going, originate”); The New Oxford American
Dictionary  (2001) (defining “initiate”
as “cause (a process or action) to begin”).   
Second, engrafting
a requirement of meaningful participation into the initiation requirement is
contrary to the history of the words used in the statute itself. Not only did
the legislature use the word initiate, it replaced the word exhaust and even
changed the title of section 554.006 from “Exhaustion of Grievance or Appeal Procedures”
to “Use of Grievance or Appeal Procedures.” See
Tex. Gov’t Code Ann. §
311.023(7) (stating that courts may consider statute’s title or caption when
construing statute).
Third, the text of the remainder of the statute
supports our interpretation. Subsection (d)’s sixty-day
deadline[3]
is tied to the date of the initiation of the grievance.[4] The word “initiate” in
subsections (a) and (d) must have the same meaning. But “initiate” in
subsection (d) cannot mean “the meaningful participation” in the grievance
procedure; otherwise, the sixty-day period within which the employee cannot
file suit would not commence on the date on which a grievance was filed but
only after the employee meaningfully participates in the grievance procedure.
This would extend the time during which a claimant was barred from bringing her
claims in a court of law. Moreover, the school’s attempt to transplant the
concept of “meaningful participation” into the initiation requirement would
create disputes about when the deadline commenced because the school offers no
line to demarcate what quality of participation would satisfy the initiation
requirement and the commencement of the sixty-day deadline. If we were to
conclude that meaningful participation is required, we would leave parties and
trial courts with no guidelines for this critical jurisdictional requirement.
Our holding does
not leave governmental entities without a remedy when a claimant initiates the
grievance procedure but prematurely files suit before the expiration of the
sixty-day statutory period for pursuing the grievance. When a claimant has
timely initiated a school’s grievance procedure, the remedy for a failure to
allow the school its sixty-day period for administrative adjudication is
abatement, not dismissal. Barrett,
159 S.W.3d at 632–33 (holding that, when school employee filed whistleblower action against school only
twenty-seven days after initiating grievance procedure, proper remedy was
to abate suit until end of sixty-day period). The school asserts that Barrett is no longer good law because,
when Barrett was decided, it was
unclear whether compliance with Section 554.006(a) was jurisdictional. Since
then, the legislature has enacted Section 311.034 of the Government Code, which
specifically provides the statutory prerequisites to suit are jurisdictional in
nature. Tex. Gov’t Code Ann. §
311.034. The decision in Barrett,
however, did not rest on the issue of whether section 554.006(a) was
jurisdictional—an issue the Barrett court
expressly declined to reach. Barrett,
159 S.W.3d at 632–33. Instead, the Texas Supreme Court held that, regardless of
whether section 554.006(a)’s initiation requirement was jurisdictional, the cure
for a prematurely filed action was abatement. Id. Thus, Barrett was not
overruled by the enactment of section 311.034, and it continues to require
abatement when a claimant properly initiated a grievance under a school’s
grievance procedure pursuant to section 554.006(a) but then failed to allow the
school sixty days within which to render a decision under section 554.006(d).
The school cites Montgomery
County Hospital District v. Smith as distinguishing Barrett and dismissing, rather than abating, a whistleblower action
against a governmental entity. 181 S.W.3d 844, 851 (Tex. App.—Beaumont 2005, no
pet.). But that case involved a claimant who failed to initiate a grievance or
appeal, not a claimant who properly initiated a grievance or appeal but then
failed to participate in the grievance process during the sixty-day period
allotted to the governmental entity for administrative resolution of the
dispute.[5] See
id.
          We
hold that dismissal for lack of jurisdiction is not an available remedy when
the claimant has properly initiated a grievance in compliance with the school’s
grievance policy. Whether the school is entitled to abatement to allow it
additional time in which to conduct any investigation and hearing process
prevented by Gayle’s counsel’s conduct is not before us.
Conclusion
We
affirm the trial court’s order denying the school’s plea to the jurisdiction. 
 
 
                                                                   Harvey
Brown
                                                                   Justice

 
Panel
consists of Justices Higley, Massengale, and Brown.
 




[1]           The
school was closed for Thanksgiving from November 24 through November 26, 2010.
 


[2]           We
do not reject the school’s contention
that the conduct of Gayle’s counsel in this case may have interfered with the
school’s ability to complete a full investigation, but Gayle’s failure
to participate in a hearing did not deprive the school from conducting any investigation.  Once a grievance is initiated, the
governmental unit has notice of the claim so it can begin its own investigation
of the claim.


[3]           This deadline was designed to protect the employee from
unfair delays by the employer. Gregg County v. Farrar, 933 S.W.2d 769,
776 (Tex. App.—Austin  1996, writ
denied).
 


[4]           Before the 1995 amendments, subsection (d) provided that Section 554.006 was inapplicable
“if a final decision is not rendered before the 31st day after the date on
which the employee initiated the grievance or appeal.” Act of May 22, 1993, 73rd Leg.,
R.S., ch 268, § 1, 1993 Tex. Gen. Laws 583, 610 (amended 1995).


[5]           We also note that Gayle did not withdraw her grievance
immediately after initiating it, as the claimant did in Midland Independent School District v. Watley, 216 S.W.3d 374, 379–80
(Tex. App.—Eastland 2006, no pet.). 


