Exhaustion of grievance procedure not necessary in retaliation claim says Tyler court

Donna D. Borden v. Smith County Community Supervision and Corrections Department, 12-12-00284-CV (Tex. App. – Tyler, September 19, 2013).

This is an appeal by the Plaintiff in an employment case where the trial court granted a plea to the jurisdiction in the Smith County Community Supervision and Correction Departments’ (“CSCD”) favor. The Tyler Court of Appeals reversed and remanded.  The important part to take away from this for local governments is the analysis of the exhaustion of administrative remedies argument.

Borden was an employee who alleges she developed ailments due to mold in CSCD’s office building. She informed CSCD she was filing a worker’s compensation claim and was subsequently fired.  She refused to follow the grievance process outlined after her termination and went straight to this lawsuit. The Court determined that while the Texas Supreme Court’s ruling in Travis Cent. Appraisal Dist. v. Norman, 342 S.W.3d 54 (Tex. 2011) holds the anti-retaliation provision of the Worker’s Compensation Act does not apply to political subdivisions, the same analysis does not hold true for state agencies. Further, while the Director of CSCD has the ability to establish policies and practices relating to employment-related grievances, the statute authorizing such does not grant him exclusive jurisdiction.  As a result, Borden did not need to exhaust her administrative remedies before filing suit. The exclusive jurisdiction language appears in more and more cases relating to exhaustion. The trial court reversed the granting of the plea and remanded the case.

If you would like to read this opinion click here.