Mere inquiry into grievance procedure does not toll statute of limitations in Whistleblower case

Irene Saldivar v. City of San Benito, Texas, 13-15-00387-CV( Tex. App— Corpus Christi , September 29,2016)

This is a Whistleblower Act case were the Thirteenth Court of Appeals affirmed the granting of the City employer’s summary judgment motion.

Saldivar was a Communications Specialist for the City of San Benito Police Department. Saldivar asserts various supervisors requested Saldivar to run criminal history checks on various City employees. She refused to do so and told her supervisors that criminal histories could only be conducted on police applicants and civilian staff that worked in the police department.  Saldivar was demoted and asserts her replacement conducted what she viewed as unauthorized criminal background checks. She notified the Texas Department of Public Safety. Saldivar was then subject to an internal investigation three months later, but the opinion did not address the grounds. As a result of the investigation, the City terminated Saldivar. Saldivar inquired as to the procedures to appeal her termination internally and was provided the grievance procedures. Two years later, Saldivar sued under the Texas Whistleblower Act. The City filed a summary judgment motion asserting Saldivar failed to file suit within ninety days of the termination. The trial court granted the City’s motion and Saldivar appealed.

A public employee who seeks relief under the Texas Whistleblower Act must sue not later than the 90th day after the date on which the alleged violation: (1) occurred; or (2) was discovered by the employee through reasonable diligence. TEX. GOV’T CODE ANN. § 554.005. The ninety-day window to file suit will normally “start to run when the cause of action accrues—in retaliation actions, when the retaliatory action occurs.” This timeframe can be tolled if the employee is pursuing relief under the appropriate grievance system. Saldivar responded that the tolling provision is triggered as soon as she gives “reasonable notice” of her intent to follow the grievance procedure, but she need not do anything else. The court disagreed. She waited more than two years after her termination to bring suit. When Saldivar asked for the grievance procedures, the City provided it but also informed her that she could not grieve or appeal a termination by the City Manager. Saldivar’s only recourse at that point was to file suit. A grievance system that does not apply to an employee’s adverse employment action cannot be used to toll.  As a result, the trial court properly granted summary judgment based on the statute of limitations.

If you would like to read this opinion click here. The Panel Includes Chief Justice Valdez, Justice Garza and Justice  Longoria. Justice Longoria delivered the opinion of the court. The attorney listed for Saldivar is Peter M. Zavaletta.  The attorney listed for the City is J. Arnold Aguilar.