Former IT employee’s termination for performance problems was not disciplinary matter, so employee had to follow grievance procedure before suing under Whistleblower Act

Wilfrido Mata v. Harris County, Texas, 14-14-00363-CV (Tex. App. – Houston [14th Dist.], February 18, 2016)

This is a Texas Whistleblower Act case where the 14th Court of Appeals affirmed the granting of a plea to the jurisdiction based on the Plaintiff’s failure to comply with administrative prerequisites.

Mata was employed by the Harris County Sheriff’s Office as the Director of Infrastructure Technology. In September 2009, Chief Administrative Officer John Dyess informed Mata that the Sheriff’s Office would undergo a security audit of its computer systems. Sheriff Adrian Garcia convened a meeting to discuss the audit. Mata told the meeting attendees that the “Harris County Infrastructure Technology Office” and its director, Bruce High, should be involved in the security audit. Dyess objected to informing Director High. Mata contends he objected to this “unlawful intrusion into the Harris County computer system,” but Sheriff Garcia and Dyess ordered him to cooperate. Mata informed the FBI who had several meetings with him. Mata later informed Dyess about his cooperation with the FBI and his belief the audit was unlawful. Mata was fired within a year of the meeting, but did not initiate an administrative appeal or grievance. Mata sued but his claims were dismissed when the trial court granted the County’s plea to the jurisdiction. Mata appealed.

The Harris County Sheriff’s Office Department Manual contains procedures relating to appealing or grieving a termination, but not a disciplinary matter.  The uncontroverted evidence demonstrated Mata was terminated because of continued performance problems.  “Dyess testified that Mata’s termination was a business decision; he was fired because he could not perform his job.”  As a result, it was not a disciplinary matter.  Because procedures were available and Mata did not initiate the remedies prescribed by the Sheriff’s Office, the trial court lacked jurisdiction to hear his whistleblower suit.  The court did note Mata presented an affidavit of a former employee attesting to the inapplicability of the grievance procedure, but held the affidavit contained legal conclusions and nothing else. It was not competent evidence.

If you would like to read this opinion click here. Panel: Justice Boyce, Justice Busby and Justice Brown. Memorandum Opinion by Justice Boyce.  The attorney listed for Mata is John Denholm II.  The attorneys listed for the County are Bruce S. Powers and F. Clinton Gambill, II.

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