Berry, Maxine P. v. Board of Regents of Texas Southern University--Appeal from 281st District Court of Harris County

Affirmed and Majority and Concurring Opinions filed August 26, 2003.

In The

Fourteenth Court of Appeals

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NO. 14-02-00706-CV

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MAXINE P. BERRY, Appellant

V.

 BOARD OF REGENTS OF TEXAS SOUTHERN UNIVERSITY, Appellee

On Appeal from the 281st District Court

Harris County, Texas

Trial Court Cause No. 00-54921

M A J O R I T Y O P I N I O N

Maxine P. Berry appeals the trial court=s granting of a plea to the jurisdiction and dismissal of her lawsuit against Texas Southern University (ATSU@). We affirm.

Berry, a former non-tenured TSU faculty member, sued TSU under the Texas Whistleblower Act (the AAct@).[1] TSU filed a plea to the jurisdiction (the Aplea@), asserting that Berry failed to initiate a grievance procedure that was a jurisdictional prerequisite to suing under the Act. The trial court granted the plea and dismissed the case. Berry=s four issues on appeal challenge the granting of the plea on the ground that TSU had no grievance procedure for her to initiate.[2]

Whether a trial court has subject matter jurisdiction is a legal question that is reviewed on appeal de novo. State Dep=t of Highways & Pub. Transp. v. Gonzalez, 82 S.W.3d 322, 327 (Tex. 2002). In deciding a plea to the jurisdiction, a court may not consider the merits of the case, but only the plaintiff=s pleadings and the evidence pertinent to the jurisdictional inquiry. County of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex. 2002).

Before suing under the Act, a public employee must Ainitiate action under the grievance or appeal procedures@ of the employing state or local governmental entity relating to suspension or termination of employment or adverse personnel action. Tex. Gov=t Code Ann. ' 554.006(a) (Vernon Supp. 2003). A faculty member at an institution of higher education has a right to present a grievance, in person, to a member of the administration designated by the governing board of the institution on an issue related to the nonrenewal or termination of the faculty member=s employment at the institution. Tex. Educ. Code Ann. ' 51.960(b) (Vernon Supp. 2003).[3] An institution may not restrict this right and may (i.e., is not required to) adopt a method for presenting, reviewing, and acting on it. Id. ' 51.960(c).

In this case, Berry=s amended petition did not allege that she in any way initiated a grievance with TSU before filing suit, but instead that TSU did not have a procedure available to her to do so.[4] However, under section 51.960(b), TSU was required by law to allow faculty members, such as Berry, to present a grievance, and thus to provide some procedure for doing so, even if only informally (i.e., without adopting a formal written set of procedures for conducting it pursuant to section 51.960(c)).[5] To the extent the steps in such a procedure are unclear, as in this case, an employee=s request to ranking officials of the employer to invoke the procedure (i.e., whatever it may be) can hardly be denied effect,[6] but an employee is not relieved of the requirement to initiate a grievance. Because Berry=s issues do not therefore demonstrate that the trial court erred in granting TSU=s plea to the jurisdiction, they are overruled, and the judgment of the trial court is affirmed.

/s/ Richard H. Edelman

Justice

Judgment rendered and Majority and Concurring Opinions filed August 26, 2003.

Panel consists of Chief Justice Brister and Justices Yates and Edelman. (Brister, C.J. concurring.)

[1] See Tex. Gov=t Code Ann. ' 554.001-010 (Vernon 1994 & Supp. 2003); id. ' 554.002(a) (Vernon Supp. 2003) (prohibiting state or local governmental entity from terminating, or taking other adverse personnel action against, a public employee who in good faith reports a violation of law by the employing governmental entity or another public employee to an appropriate law enforcement authority).

[2] Because Berry does not challenge whether the requirement to initiate a grievance, where applicable, is jurisdictional in nature, we do not address that issue. See Univ. Of Tex. Med. Branch v. Barrett, ___ S.W.3d ___, ___ (Tex. App.CHouston [14th Dist.] 2003, no pet. h.). Similarly, because TSU did not assert that Berry failed to exhaust administrative remedies in any respects other than initiating a grievance, we express no opinion on the existence or exhaustion of any other administrative remedies.

[3] Berry does not dispute that she was a Afaculty member@ of TSU for this purpose. See Tex. Educ. Code Ann. ' 51.960(a)(1) (Vernon Supp. 2003) (defining Afaculty member@).

[4] Berry=s amended petition was filed after TSU=s plea to the jurisdiction, and Berry does not complain of being denied an opportunity to amend her petition to allege any additional facts.

[5] Section 2.2 of the TSU Faculty Manual provides: AAll disputes over personnel issues shall be heard by the appropriate committee of the lowest academic unit for initial resolution.@ Even if this provision did not apply to non-tenured faculty members, as Berry contends, section 51.960 nevertheless mandated that some grievance procedure be made available.

[6] See Fort Bend Indep. Sch. Dist. v. Rivera, 93 S.W.3d 315, 320-21 (Tex. App.CHouston [14th Dist.] 2002, no pet.); Univ. of Tex. Med. Branch v. Hohman, 6 S.W.3d 767, 775 (Tex. App.CHouston 1999, pet. dism=d w.o.j.); Curbo v. State, Office of the Governor, 998 S.W.2d 337, 341 (Tex. App.CAustin 1999, no pet.); Upton County v. Brown, 960 S.W.2d 808, 813-14 (Tex. App.CEl Paso 1997, no pet.); Beiser v. Tomball Hosp. Auth., 902 S.W.2d 721, 724 (Tex. App.CHouston [1st Dist.] 1995, writ denied). However, TSU=s conduct could not, as Berry contends, confer subject matter jurisdiction on the trial court by estoppel. See Wilmer-Hutchins Indep. Sch. Dist. v. Sullivan, 51 S.W.3d 293, 293-95 (Tex. 2001).