Even though properly initiated, attempts to circumvent the purpose of internal grievance procedures is considered noncompliance under Whistleblower Act says Fort Worth Court of Appeals.
Fort Worth Independent School District v. Joseph Palazzolo, 02-13-00006-CV (Tex. App. – Fort Worth, January 9, 2014).
This is an interlocutory appeal in a Whistleblower case where the Fort Worth reversed the denial of a summary judgment challenging jurisdiction.
Palazzolo was an assistant principle at the Fort Worth Independent School District (“FWISD”) and reported to several organizations and FWISD officials that FWISD employees had falsified student attendance records, misused booster club funds, improperly enforced disciplinary procedures against minority students, and engaged in inappropriate sexual relationships with each other. Afterwards he was reassigned to a new school with less pay. He filed a grievance and the process yielded an amendment to his appraisal and reassignment with a similar rate of pay. At a Board meeting he advised FWISD that he was “fine” with the outcome of the grievance process and the Board took no action on his Whistleblower claim. Two weeks later he filed a Whistleblower lawsuit asserting he was retaliated against for the reports and FWISD lifted a trespass warning against another parent who had an altercation with his daughter. FWISD filed a summary judgment motion asserting he failed to exhaust his administrative remedies and the trespass lifting was not an adverse employment action. The trial court denied the motion and FWISD appealed.
The court held the Whistleblower Act does not dictate what actions are required to “initiate” a grievance procedure, but the court must proceed with the understanding that the goal of §554.006 is to afford the governmental entity an opportunity to investigate and correct its errors and to resolve disputes before incurring the expense of litigation. While full exhaustion is not required before filing a suit (the statute says “initiate” not “exhaust”), if a party who invokes a grievance procedure goes on to actively circumvent the governmental entity‘s efforts to redress the complained-of conduct, that party does not comply. Palazzolo informed the Board he was “fine” with the final outcome of the grievance (at Level III) so the Board took no further action. Palazzolo actively circumvented FWISD‘s efforts to redress the complained-of conduct by advising the Board that he no longer had a dispute. Because Palazzolo did not satisfy the jurisdictional prerequisite of initiating (and not circumventing) the grievance process, no jurisdiction exists. Further, the lifting of the trespass warning (after he and his daughter had been moved to other schools) is not an adverse employment action. The matter was reversed and dismissal rendered.
If you would like to read this opinion click here. Court records indicate Palazzolo represented himself. The attorney for FWISD was Francisco J. Valenzuela. PANEL: DAUPHINOT, MCCOY, and MEIER, JJ.
