West Houston Charter School Alliance v. Jean Pickering

Opinion issued August 18, 2011.

In The

Court of

Appeals

For The

First District

of Texas

————————————

NO. 01-10-00289-CV

———————————

West Houston ChaRter School Alliance , Appellant

V.

Jean

Pickering ,

Appellee

On Appeal from the 125th District Court

Harris County, Texas

Trial Court Case No. 2009-64131

MEMORANDUM OPINION

This

interlocutory appeal from the trial court’s denial of a school’s plea to the

jurisdiction arises out of Jean Pickering’s claim that the school demoted and

constructively discharged her in retaliation for reporting that the school

board had violated the Texas Open Meetings Act. Because we conclude that

Pickering failed to initiate the school’s grievance procedure before filing her

whistleblower action, we reverse the trial court’s denial of the school’s plea

to the jurisdiction and dismiss Pickering’s claims against the school for lack

of jurisdiction.

Background

Pickering,

the school’s administrator, filed a suit against West Houston Charter School

Alliance and several of its board members, asserting that the school violated

the Texas Whistleblower Act by retaliating against her after she reported to

the Texas Education Agency that the board was holding meetings in violation of

the Texas Open Meetings Act. [1] See Tex. Gov’t Code Ann.

§ 554.002(a) (West 2004) (prohibiting governmental entity from taking adverse

personnel action against public employee who, in good faith, reports violation of law by employer or

another public employee to appropriate law enforcement authority); id. § 551.001–.146 (governing open

meeting requirements for governmental bodies). Pickering alleged two

incidents of retaliatory conduct. First, the school board placed her on “a

corrective plan at a final warning stage,” which Pickering asserted stripped

her of her responsibilities and was designed to serve as a demotion. The school

board presented the corrective action plan to Pickering at a July 9, 2009 board

meeting. Second, Pickering alleged that

the board members damaged her reputation in the community and forced her to

resign on August 3, 2009, which constituted a constructive discharge.

After Pickering initiated this

action, the school filed a plea to the jurisdiction, contending that Pickering

failed to initiate a grievance under the school’s grievance procedure before

filing suit. Pickering responded that the school’s grievance procedure did not

apply to her and that she had appealed the school’s actions by a letter her

attorney sent to the school board on July 22, “seeking a fundamentally fair

hearing on the matter.”

The trial court denied the school’s

plea to the jurisdiction. In its order, the trial court stated:

All parties having appeared

in open court by and through their attorneys and all parties having agreed on

the record that plaintiff by and through her counsel did, on or about July 22,

2009, within 90 days of the claimed adverse employment action[,] g[i]ve written

notice to the Defendant’s Board of Trustees that the Plaintiff “appeal[ed] the

decision to place her on a professional growth plan and specifically

request[ed] that as part of that appeal, she be afforded a due process,

meaningful hearing pursuant to the mandates of Ferguson v. Thomas , before an impartial and academically oriented

hearing officer or panel.”

Having

heard arguments of counsel and considered the documents filed herein, the Court

is of the opinion and finds that Plaintiff initiated Defendant’s appeal

procedures, or that a fact dispute exists as to whether Plaintiff’s actions

initiated Defendant’s appeal procedures, and that Defendant’s Plea to the

Jurisdiction is not established as a matter of law.

This interlocutory appeal followed. See Tex.

Civ. Prac. & Rem. Code Ann. § 51.014(a)(8) (authorizing

interlocutory appeal from the grant or denial of a governmental unit’s plea to

the jurisdiction); LTTS Charter Sch., Inc.

v. C2 Constr., Inc. , No. 09-0794, 2011 WL 2420204 , at *5–6 (Tex. June 17, 2011)

(holding that an open-enrollment charter school is a “governmental unit” for

purposes of section 51.014(a)(8)). [2]

Standard of Review

The school’s plea to the jurisdiction is a dilatory

plea that seeks dismissal of Pickering’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 Pickering to put on evidence raising a

fact issue on the jurisdictional issue. 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 Pickering, 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

In its plea to the jurisdiction, the school asserted that

the trial court lacked jurisdiction over Pickering’s whistleblower action

because she had not satisfied the Whistleblower Act’s requirement that she initiate

a grievance before filing suit in district court. In response, Pickering argued

that the school’s grievance procedure did not apply to Pickering’s complaints

and, alternatively, the letters she sent to the school board satisfied whatever

obligation she had under the grievance procedure. We conclude that the school’s

grievance procedure applied to Pickering’s complaints and that the evidence demonstrates

that Pickering failed to initiate a grievance under that procedure.

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). This 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. 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

Univ. of Tex. Med. Branch v. Barrett , 159 S.W.3d 631, 632 (Tex. 2005); 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.). After the grievance authority

issues a decision, or after sixty days if no decision has been issued, then 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. See Tex. Gov’t Code Ann. § 554.006(d). The option she chooses

determines the time period within which her suit must be filed. See id. §§ 554.006(d), 554.005.

The issue here is whether Pickering initiated a grievance

under the school’s grievance procedure, thus commencing the school’s sixty-day

period for issuing a decision, regardless of whether she exhausted her

administrative remedies under the grievance procedure. See id. §§ 554.006(d)(2), 554.005.

B. The

evidence on whether Pickering initiated a grievance

In support of its plea to the jurisdiction, the school filed

evidentiary exhibits: an affidavit, three letters exchanged between Pickering

and the school, and a copy of the school’s grievance procedure, which the

school sent to Pickering. David Dwyer, former school board president, testified

in his affidavit that Pickering did not file a grievance with the school

relating to the July 9, 2009 corrective action plan or her August 3, 2009

resignation.

The correspondence exhibits begin with a July 22 letter from

Pickering’s counsel to the school board, which accused the school board of

violating the Texas Open Meetings Act and retaliating against Pickering for

reporting the violations to the Texas Education Agency. It then stated:

I am notifying you that Ms. Pickering appeals the decision

to place her on a professional growth plan and specifically requests that as

part of that appeal, she be afforded a due process, meaningful hearing pursuant

to the mandates of Ferguson v. Thomas ,

before an impartial and academically oriented hearing officer or panel.

Specifically, Ms. Pickering requests that the hearing occur on July 27, 2009.

The school responded on July 27. In that letter, counsel for

the school defended the school’s actions, rejected opposing counsel’s

interpretation of Ferguson v. Thomas and

the due process implications of the situation, and disagreed that Pickering was

entitled to a hearing different from that afforded by the school’s grievance

procedure. The school’s counsel noted that Pickering had the opportunity to

express concerns and address issues with the school board at the July 9

meeting, but declined to do so. She then stated:

However, if she would like to grieve the Board’s action, she

may do so in accordance with the attached West Houston Charter School Grievance

procedure. In lieu of submitting to the School Administrator, [3]

as the procedure states, she should address the grievance to the School Board’s

President, Mr. David Dwyer, c/o Maureen Singleton, Thompson & Horton, 711

Louisiana, Suite 2100, Houston, Texas 77002.

The final correspondence in the record is Pickering’s

resignation letter to Dwyer on August 3, 2009. In the letter, Pickering attacked

Dwyer’s leadership of the school board, made accusations regarding his wife’s

service on a school committee, asserted that the corrective action plan was

based on false claims, complained of the process by which the corrective action

plan was adopted, and stated that the board’s actions against her had

undermined her authority with staff. Pickering then gave two weeks’ notice of

her resignation, which she asserted was forced by the “illegal conduct of your

Board and the clear intent to damage my career.”

The record does not contain any evidence filed by Pickering

with respect to the school’s plea to the jurisdiction. In the text of her

response, Pickering relied on a letter she sent the school board on July 9,

2009. But she did not attach that letter to her response or otherwise make it

part of the record. Thus, although it is undisputed that Pickering sent the

school board a letter on this date, the letter itself is not in the record.

Pickering appended the letter to her appellate brief, but we may not consider material

appended to an appellate brief that is not in the record. E.g. , Sowell v. The Kroger Co. , 263 S.W.3d 36, 38 (Tex.

App.—Houston [1st Dist.] 2006, no pet.) (holding that requests for disclosure

filed as an appendix to appellate brief could not be considered because they

were not made part of the record); Till v. Thomas , 10 S.W.3d 730 , 733–34 (Tex. App.—Houston [1st Dist.] 1999, no

pet.) (“We cannot consider documents attached to an appellate brief that do not

appear in the record.”).

C. Pickering

is not excluded from the school’s grievance procedure

Pickering contends in her brief that the school’s grievance

policy does not apply to a dispute between the school’s administrator,

Pickering, and the school board. In support of this argument, Pickering relies

exclusively on the language of the school’s grievance procedure. The procedure addresses

grievances by an employee:

The Board will provide an opportunity at its regular and/or

special meetings for employees to present grievances for consideration and

response.

Any employee who requests a hearing before the Board to

complain of the employee’s conditions of employment, the failure to promote, or

termination may do so by submitting a request to the School Administrator [Pickering]

within ten (10) calendar days of the incident or his or her receipt of

notification of the event that forms the basis of the person’s complaint. The

Board may hear the complaint at a regular or special Board meeting mutually

convenient to the School and the employee, and as permitted by law. The board

will hear grievances involving appointment, employment, evaluation, reassigned

duties, discipline, or dismissal/termination of an employee in closed session

unless the employee makes a written request that the hearing be conducted in

open session.

The

school’s grievance procedure also provides for the submission of documents, the

right to be represented by counsel, and time limits on the employee’s presentation

of the grievance and the administration’s response. The procedure requests that

the employee submit any documents she intends to rely on at the meeting at

least one week before the meeting. Finally, it provides that the board will

provide a response to the employee within twenty days of the meeting at which

the employee’s grievance is presented.

We do not agree that the school’s

grievance procedure does not apply to Pickering’s complaints. The procedure

specifically states that “[a]ny employee” may request a hearing by submitting

the request to the school administrator within the ten-day period, and it

specifically lists “the employee’s conditions of employment” and “termination”

among the topics upon which a grievance may be filed. By its plain language,

the grievance procedure applied to Pickering and the complaints she maintains

here. See Davis v. Dallas Cnty. Schs. , 259 S.W.3d 280 , 283–84 (Tex.

App.—Dallas 2008, no pet.) (rejecting argument that procedure that authorized

grievance concerning “conditions of work” did not apply to retaliatory

discharge claim); cf. City of Houston v. Williams , No. 09-0770,

2011 WL 923980, at *15 (Tex. Mar. 18, 2011) (holding that grievance procedures

in collective bargaining agreement did not apply to retired firefighters, where

procedures only allowed for grievance by union or “bargaining unit

firefighter,” which was defined to include only full-time employees); see also Tucker v. City of Houston ,

No. 01-00-01194-CV, 2001 WL 754487 , *2–3 (Tex. App.—Houston [1st Dist.] July 5,

2001, pet. denied) (holding that city’s appeal procedure applied to employee

and employee’s letter stating that he would not pursue appeal provisions of

city’s procedure did not initiate grievance or appeal procedure).

We can, however, see how the procedure may have left

Pickering uncertain as how she should go about requesting a hearing, since she

is the person to whom such requests are submitted under the policy. On July 27,

2009, the school sent Pickering a copy of the grievance procedure and requested

that if she wished to submit a grievance, she submit it to the school board

president, Dwyer, at the address provided in the letter. While Pickering did

not have this information when she sent the July 22 letter that she contends

was sufficient to initiate the school’s grievance procedure, she did send that

letter to Dwyer and the other board members.

We conclude there was some uncertainty in the policy as to

whom Pickering should submit her request for hearing, at least until July 27,

2009. But this uncertainty did not prejudice her because her letter was sent to

the appropriate official. More importantly, such uncertainty does not excuse her

from her obligation to initiate a grievance under the school’s grievance

policy. See Univ. of Tex. Med. Branch v. Hohman , 6 S.W.3d 767, 775 (Tex.

App.—Houston [1st Dist.] 1999, pet. dism’d w.o.j.) (“When it is unclear whether

the employer has a post-termination grievance procedure, or it is unclear what

the procedure is, and the terminated employees timely notify the employer that

they are invoking the grievance procedure, terminated employees have adequately

implicated the grievance procedures.”) (citing Beiser v. Tomball Hosp. Auth. , 902 S.W.2d 721, 724 (Tex. App.—Houston

[1st Dist.] 1995, writ denied)); see also

Berry v. Bd. of Regents of Tex. S.

Univ. , 116 S.W.3d 323, 325 (Tex. App.—Houston [14th Dist.] 2003,

pet. denied) (“To the extent the steps in such a [grievance] procedure are

unclear, as in this case, an employee’s request to ranking officials of the

employer to invoke the procedure ( i.e., whatever it may be) can hardly

be denied effect, but an employee is not relieved of the requirement to

initiate a grievance.”). The school’s grievance procedure clearly informed

Pickering that to initiate a grievance she needed to request a hearing before

the school board. We therefore review the evidence to determine if Pickering submitted

a request for a hearing before the school board to any board member or other

appropriate person associated with the school.

D. Pickering

did not comply with the school’s grievance procedure

Pickering’s petition asserts two incidents on which her

claims rest: the July 9 corrective action plan and Pickering’s August 3

“constructive discharge.” In its plea to the jurisdiction, the school asserts

that Pickering failed to initiate a grievance within ninety days of both incidents,

as required by the Whistleblower Act. Tex.

Gov’t Code Ann. § 554.006(b). [4]

We therefore turn to that issue.

1. Pickering’s

alleged constructive discharge

School board president Dwyer’s affidavit states that

Pickering did not initiate a grievance relating to her alleged August 3, 2009 constructive

discharge. The only communication in the record that makes any reference to

Pickering’s resignation or constructive discharge is her August 3rd resignation

letter, which does not request a hearing or make any mention of a grievance or

appeal, though she had a copy of the grievance procedure at that time. Pickering’s

timeline of events in her petition does not indicate she had any communications

with the school board after her August 3rd resignation. Nor does she contend on

appeal that she initiated or attempted to initiate a grievance with respect to her

August 3rd resignation. The trial court’s ruling is expressly based on

Pickering’s July 22 letter, which predated Pickering’s resignation. This letter

does not reference Pickering’s resignation. The record thus establishes that

Pickering did not initiate a grievance with respect to the August 3, 2009

constructive discharge alleged in her petition. See Jordan v. Ector Cnty. ,

290 S.W.3d 404, 406 (Tex. App.—Eastland 2009, no pet.) (holding that grievance

filed before employee’s termination could not satisfy section 554.006 with

respect to her whistleblower claim based on retaliatory termination). The trial

court therefore erred in denying the school’s plea to the jurisdiction with

respect to Pickering’s constructive discharge claim.

2. Pickering’s

alleged demotion

On appeal, Pickering relies extensively on her July 9 letter

to the school board to show that she initiated a grievance regarding her

“demotion” via the corrective action plan. But we cannot determine whether this

letter was sufficient to initiate grievance because we cannot consider its

contents, which were not made part of the record. See Sowell , 263 S.W.3d

at 38 ; Till , 10 S.W.3d at

733–34. Although the letter’s existence is not disputed, the mere existence of

a letter from Pickering to the school board does not establish compliance with

the school’s grievance procedure. We cannot tell whether the letter notified

the school that Pickering sought to invoke its grievance procedure. See Hohman ,

6 S.W.3d at 775 (noting that, when grievance procedure is unclear, employee may

satisfy statutory requirement by timely notifying employer that she is invoking

the grievance procedure); Berry , 116 S.W.3d at 325 (noting that when

grievance procedures are unclear, an employee’s request to ranking officials to

invoke the grievance procedure will be effective). The July 9 letter,

therefore, is not evidence that Pickering initiated the school’s grievance

policy for her alleged demotion.

In her July 22 letter, relied on by

the trial court, Pickering complained of the board’s negative appraisal of her

performance and specifically stated that Pickering “appeals the decision to

place her on a professional growth plan,” but does not contend that such action

constituted a demotion. She then requested that “as part of that appeal, she be

afforded due process, meaningful hearing pursuant to the mandates of Ferguson v. Thomas , before an impartial

and academically oriented hearing officer or panel.” Essentially, Pickering

communicated a desire to appeal the school board’s decision to place her on a

corrective action plan but not a desire to do so through the school’s grievance

procedure, which only entitled her to a hearing before the board. Instead,

Pickering’s counsel wanted the school to create a certain type of hearing

procedure for Pickering so that her claims could be heard by a different

authority, presumably because her complaints related to alleged misconduct by board

members themselves.

Although Pickering’s counsel represented that Pickering had

a due process right to this type of hearing, he provided no basis for that

assertion. The evidence demonstrates that Pickering was an at-will employee of

the school. At-will employees generally have no property right in their

continued employment that will support a due process claim, and the existence

of a grievance procedure does not, alone, create such a property right. See Cnty. of Dallas v. Wiland , 216

S.W.3d 344 , 353–54 (Tex. 2007) (stating that administrative system that

provides at-will employees procedures for hearing and deciding grievances does

not, alone, create property rights); Trostle v. Combs , 104 S.W.3d 206,

211 (Tex. App.—Austin 2003, no pet.) (“A protected property interest in

employment, process, or benefit exists only when an employee has a ‘legitimate

claim of entitlement’ to the employment, process, or benefit. . . . The

presumption that employment in Texas is at will is difficult to overcome.”)

(internal citations omitted); see also Hitchcock v. Bd. of Trs. Cypress-Fairbanks

Indep. Sch. Dist. , 232 S.W.3d 208 , 217–18 (Tex. App.—Houston [1st

Dist.] 2007, no pet.) (rejecting due process, open courts, and equal protection

challenges to school’s fifteen-day deadline for initiating grievance

procedure).

In her July 27 response to Pickering’s July 22 letter, the

school’s counsel told Pickering that the due process rights she invoked were

not applicable to her as an at-will employee. The school’s counsel invited

Pickering to initiate a grievance pursuant to the school’s grievance procedure,

which she provided to Pickering as an attachment to the letter, and advised

Pickering on where to send a request for hearing. Pickering did not respond or

take further action to initiate a grievance. Pickering’s only further

communication with the school was her August 3 resignation letter.

We conclude that Pickering’s July 22 letter put the school on

notice that Pickering wished to challenge the board’s decision to place her on

a corrective action plan. See Hitchcock Indep. Sch. Dist. v. Walker ,

No. 01-10-00669-CV, 2010 WL 5117912 , at *6 (Tex. App.—Houston [1st Dist.] Dec.

16, 2010, no pet.) (holding that properly filed grievance contained sufficient

reference to basis for retaliation claim to satisfy section 554.006’s

initiation requirement). [5]

But Pickering’s request for a hearing before a different grievance authority,

and her decision not to take any further action after the school declined that request

and provided her with a copy of the school’s grievance procedure, demonstrates

that Pickering neither expected nor desired a hearing before the school board—the

only grievance process recognized in the school’s grievance procedure. The

school’s July 27 letter made Pickering aware that it did not believe she had

initiated a grievance, and her subsequent conduct demonstrates that she also

did not believe she had initiated the school’s grievance procedure by her July

22 letter. She never responded that she felt her July 22 letter was sufficient

and no request to Dwyer was necessary. She never inquired when her hearing

before the board would be. She never submitted any documents in anticipation of

a hearing. Rather, her conduct indicates that she believed she was entitled to

an independent grievance authority and was unwilling to have her grievance

heard by the school board, as provided in the school’s grievance procedure.

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. See 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). The purpose of section 554.006’s initiation

requirement 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.” Walker , 2010

WL 5117912 , at *6. The school’s grievance procedure provided a process by which

the school could conduct such an investigation, allowing for the presentation

of the grievance by the complainant or her counsel, response from a

representative of the administration, and the submission of documents. By declining

to participate in a hearing before the school board, Pickering denied the

school a full opportunity to investigate her allegations and to adequately

develop a basis for resolving her complaints. See Aguilar v. Socorro Indep.

Sch. Dist. , 296 S.W.3d 785 , 789–90 (Tex. App.—El Paso 2009, no pet.)

(holding that claimant did not satisfy section 554.006’s initiation requirement

when she filed a grievance but then refused to participate in school’s

arbitration hearing and observing 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.’”).

Pickering contends that the school owed her a duty to

respond to her “appeal” by informing her that it was denying her request for a

“meaningful hearing” that complied with due process before “an impartial and

academically oriented hearing officer or panel” but would grant her a hearing

before the board or a hearing pursuant to the written grievance procedure. But

the statute places the onus on Pickering to initiate the grievance procedure,

and the school provided her with its written grievance procedure and told her where

to send her request for hearing. See Tex. Gov’t Code Ann. § 554.006(a) (“A public

employee must initiate action under the grievance or appeal procedures of the

employing state or local governmental entity . . .”). Pickering elected not to

do so.

We hold that a claimant does not properly initiate a

grievance when she communicates her complaints but conditions her request for

appeal on the provision of a grievance process that she knows to be different

than the process in the school’s grievance procedure and declines to initiate a

grievance under the school’s existing procedure after it has been provided to

her. See Ruiz , 2004 WL 1171666 , at *7 (holding claimant did not

initiate grievance procedure by making school aware of her whistleblower claims

when school informed her of its grievance procedure and claimant failed to take

further action); cf. Van Indep. Sch.

Dist. v. McCarty , 165 S.W.3d 351 , 353–54 (Tex. 2005) (“We also decline to

adopt our dissenting colleague’s view that administrative procedures can be

ignored if a creative applicant convinces a court that some other procedure was

just as good. An employee’s letter, phone call, or chance conversation with a

member might give a board ‘the first chance to consider his grievance,’ but

exhaustion of administrative remedies generally requires compliance rather than

avoidance.”). [6]

3. Summary

There were no disputed facts in this case: the parties agree

on what communications were made and when. The dispute here is over the legal

import of those communications. Specifically, did the July 22 letter initiate the

school’s grievance procedure? We hold that the evidence—the grievance policy,

the July 22 letter, the July 27 letter, the August 3 letter, and the affidavit—satisfied

the school’s initial burden of proving that Pickering did not initiate a

grievance with respect to its July 9 corrective action plan or Pickering’s

August 3 resignation. See Miranda ,

133 S.W.3d at 228 ; Porretto , 251 S.W.3d at 711 . The burden then shifted

to Pickering to come forward with evidence raising an issue of fact as to

whether she initiated a grievance under the school’s grievance procedure. See Miranda , 133 S.W.3d at 228 ; Patterson ,

251 S.W.3d at 711 . Pickering presented no evidence, and we find no evidence in

the record, raising a fact question as to whether she “initiate[d] action under

the [school’s] grievance or appeal procedures.” Tex. Gov’t Code Ann. § 554.006(a). The trial court therefore erred

in denying the school’s plea to the jurisdiction. See Miranda , 133 S.W.3d at 228 ; Patterson , 251 S.W.3d at 711 .

Conclusion

We hold that the evidence before the

trial court on the school’s plea to the jurisdiction conclusively established

that Pickering failed to initiate a grievance in accordance with the school’s

grievance procedure. Because initiation of a grievance or appeal is a

jurisdictional prerequisite to suit under the Whistleblower Act, the trial

court erred in denying the school’s plea to the jurisdiction. We reverse the

trial court’s order and dismiss Pickering’s claims against the school for lack

of jurisdiction.

Harvey

Brown

Justice

Panel

consists of Chief Justice Radack and Justices Brown and Huddle.

[1]

Pickering pled that the

individual school board members conspired with the school to violate the

Whistleblower Act and asserted a claim against them for intentional infliction

of emotional distress. The claims against the individual defendants are not at

issue here.

[2] West Houston Charter School Alliance is an

open-enrollment charter school.

[3] Pickering was the school

administrator.

[4] Both the statute and the school’s

grievance procedure allow for this deadline to run from the date an incident is discovered through reasonable diligence,

but the record establishes that Pickering was aware of these incidents as of

July 9 and August 3, respectively.

[5]

The facts of this case are, in

some ways, the inverse of the facts in Walker .

In Walker it was undisputed that

Walker properly filed a level one grievance according to the school’s grievance

procedure, but the parties disputed whether the substance of that grievance was

sufficient to put the school on notice of Walker’s whistleblower claim. Walker , 2010 WL 5117912 , at *6. Here,

there is little dispute that the school understood the nature of Pickering’s

retaliation complaint, but the parties disagree about whether Pickering

properly filed a grievance in accordance with the school’s grievance procedure.

[6]

Although McCarty analyzes whether a party has exhausted administrative

remedies, rather than whether a party has initiated an administrative process,

its reasoning is analogous to the extent that a whistleblower claimant may be

required to comply with the employer’s procedure for initiation of a grievance

rather than engaging in conduct aimed at avoiding, rather than commencing, the

process outlined in the employer’s grievance or appeal procedure.