Perez v. Cameron Cnty. & Juan A. Gonzalez
| Decision Date | 29 November 2018 |
| Docket Number | NUMBER 13-17-00581-CV |
| Parties | LETICIA PEREZ, Appellant, v. CAMERON COUNTY AND JUAN A. GONZALEZ, Appellees. |
| Court | Texas Court of Appeals |
On appeal from the 103rd District Court of Cameron County, Texas.
Before Justices Rodriguez, Contreras, and Benavides
This case involves a whistleblower claim. By one issue, appellant Leticia Perez asserts that the trial court erred in granting a plea to the jurisdiction and dismissing her claims with prejudice. We reverse and remand.
In 2014, Perez filed a whistleblower suit against appellee Cameron County. She alleged that she had been fired for reporting illegal activity by the county clerk, Jose G. Rivera. Perez's petition and evidence set out the following.
Perez worked for the County for thirty years. In March of 1994, she began work as an office manager for the Cameron County Clerk's Office ("CCCO"). She advanced through the ranks until she was promoted to chief deputy clerk in 2011.
In 2013, Perez saw a news story about the arrest of the chief administrator for the Hidalgo County Sheriff's office. She understood from the story that the administrator had been arrested for not reporting illegal activity. This concerned Perez because she had witnessed Rivera engage in "potentially illegal activity" with CCCO's vendors. Perez alleged that Rivera exploited his post as county clerk "to award improper and illegal contracts" to CCCO's vendors, which, according to Perez's affidavit, were rife with "kickbacks and contract rigging."
Perez contacted the district attorney to report what she believed to be illegal activity. An investigator at the district attorney's office arranged for her to meet with the FBI. Perez reported Rivera's illegal activity to an FBI agent, provided documentation, and cooperated with the FBI's investigation.
In late 2013 or early 2014, Rivera told Perez that he was running for county judge and asked Perez to support his chosen replacement for the position of county clerk. Perez refused. At approximately the same time, CCCO was audited for the problems which were the subject of Perez's report to the district attorney and the FBI.
According to Perez's petition, on January 3, 2014, Rivera "began a campaign of retaliation" against Perez, which she believed was due to her report of illegal activity and her refusal to support Rivera's chosen successor. She was "harass[ed] and humiliat[ed]" by Rivera in front of other County employees and others running for political office. She was removed from duties involving the contractors and vendors that were the subject of her report. Perez was not allowed to attend meetings involving the reported illegal activity. She was also told that she was not allowed to speak to the district attorney. Rivera began to inquire with the district attorney about any meetings with Perez.
Perez sought advice from Juan A. Gonzalez, an attorney for the County. Perez went to Gonzalez because "he was an attorney that knew the law regarding public employees, knew all the players, and she believed that they were friends." Gonzalez advised Perez to record her conversations with Rivera and told her how to proceed through the County's grievance policy. Gonzalez told Perez "that he would love to nail Rivera to the wall," but that he could not represent her directly because of his role with the County. He referred Perez to another attorney. Gonzalez informed Rivera that Perez was going to record their conversations.
Following Gonzalez's advice, Perez filed a grievance. Local policy required Rivera to hear and decide the grievance himself. Rivera determined that he had done nothing wrong. Rivera then fired Perez. In the letter of termination, Rivera wrote that when he learned Perez was recording their conversations, he lost trust in their "confidential working relationship" and believed that he could no longer "rely on her to be my chief deputy . . . ."
Perez filed a whistleblower claim against the County, alleging that she was wrongfully fired after she reported illegal activity by the county clerk. After the deadline to amend pleadings passed, Perez amended her pleadings to add new claims against Gonzalez for negligence.
The County filed a plea to the jurisdiction advancing two arguments. First, the County argued that Perez had failed to adequately plead all elements of a whistleblower claim, and she had therefore not established a waiver of immunity. Second, the County argued that Perez had not exhausted her administrative remedies because she never filed a second grievance concerning her termination; she had only filed a grievance concerning unfair treatment prior to her termination.
Perez responded that no second grievance was required or even allowed under County policy. As support, she cited the County's "Personnel Policies Manual" which provided, "The grievance procedure provided in the following sections is not available to the employee who has been involuntarily dismissed from employment by the County . . . ."
The County conceded that the grievance procedure stated in its policy was not available to terminated employees such as Perez. However, it contended that Perez was nonetheless required to make some sort of grievance to notify the County of her whistleblower claim. The trial court agreed with the County and dismissed Perez's claims with prejudice. This appeal followed.
Citing the County's policy, Perez first argues that exhaustion of administrative remedies was not required.
The Whistleblower Act provides that, before filing suit, a public employee "must initiate action under the grievance or appeal procedures" of the employing government entity relating to the termination. TEX. GOV'T CODE ANN. § 554.006(a) (West, Westlaw through 2017 1st C.S.). "The employee must invoke the applicable grievance or appeal procedures not later than the 90th day after the date on which the alleged violation" occurred. Id. § 554.006(b).1
But what occurs when the employer's grievance policy expressly states that it does not apply to terminated employees? Does the terminated employee still need to file a grievance or give some form of notice of her claim? We think she does not.
Many courts have held that when the government has no grievance procedure or a grievance procedure that does not clearly apply to terminated employees, the employee does not have to file a grievance or notice. See Leyva v. Crystal City, 357 S.W.3d 93, 102 (Tex. App.—San Antonio 2011, no pet.) (unclear grievance procedure); City of Colorado City v. Ponko, 216 S.W.3d 924, 928 (Tex. App.—Eastland 2007, no pet.) (no procedure); Fort Bend Indep. Sch. Dist. v. Rivera, 93 S.W.3d 315, 320-21 (Tex. App.—Houston [14th Dist.] 2002, no pet.) (sub. op.) (unclear procedure); see also Caldwell Cty. Sheriff's Office v. Crider, No. 03-02-00321-CV, 2003 WL 21354690, at *2 (Tex. App.—Austin June 12, 2003, pet. denied) (mem. op.) (unclear procedure) (citing Curbo v. State,Office of the Governor, 998 S.W.2d 337, 341 (Tex. App.—Austin 1999, no pet.) (unclear procedure)). This result is dictated by the statute's plain text.2 The language of the statute speaks of "the grievance procedure" and requires only that "the applicable grievance or appeal procedure be invoked." Ponko, 216 S.W.3d at 927-28 (emphasis added) (internal quotations omitted). "Such language implies that a grievance procedure is in place." Id. at 928. A terminated employee should not be obligated to follow a grievance procedure which does not exist or, as is the case here, a grievance procedure which does not apply to terminated employees.
Our rules of interpretation also favor the conclusion that no grievance was required. "The Whistleblower Act is a broad remedial measure intended to encourage disclosure of governmental malfeasance and corruption." City of Waco v. Lopez, 259 S.W.3d 147, 154 (Tex. 2008). Because the Whistleblower Act is remedial in nature, it should be construed liberally in favor of jurisdiction. Leyva, 357 S.W.3d at 99; Rivera, 93 S.W.3d at 319; see City of Fort Worth v. Shilling, 266 S.W.3d 97, 102 (Tex. App.—Fort Worth 2008, pet. denied); see also Tex. Youth Comm'n-Evins Reg'l Juvenile Ctr. v. Garza, No. 13-08-00527-CV, 2009 WL 1238582, at *5 (Tex. App.—Corpus Christi May 7, 2009, no pet.) (mem. op.).
The County relies on Ward v. Lamar University, in which it was held that when the local government has no grievance procedure, the terminated employee must nonetheless give some form of reasonable notice of her claim to the government. 484S.W.3d 440, 447 (Tex. App.—Houston [14th Dist.] 2016, no pet.) (sub. op.). The Ward court held that an "employee is not relieved of the requirement to initiate a grievance or appeal by the lack of a formal procedure." Id. The County urges us to adopt this requirement and hold that, in the absence of an applicable grievance procedure, "reasonable notice" is nonetheless required. See id. We decline to do so.
The statute makes no mention of "reasonable notice" in the absence of a grievance procedure; the statute speaks only of satisfying the employer's grievance procedure. See Ponko, 216 S.W.3d at 928 (). Requiring "reasonable notice" in this fashion would create a jurisdictional prerequisite which does not appear in the statute. See id. If the Legislature had meant to generally require fair notice in the absence of a grievance procedure, it could have easily said so, but it did not. See Am. Cas. Co. of Reading, Pa. v. Martin, 97 S.W.3d 679, 684 (Tex. App.—Dallas 2003, no pet.) (reasoning that if the Legislature had intended to impose a general notice requirement, it could have expressly done so); see also Gilbert v. El Paso Cty. Hosp. Dist., 38 S.W.3d 85, 89 (Tex. 2001) (...
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