Efrain Carrera v. Starr County--Appeal from 200th District Court of Travis County

CAR528.OPN TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-95-00528-CV
Efrain Carrera, Appellant
v.
Starr County, Appellees
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 200TH JUDICIAL DISTRICT
NO. 92-02037, HONORABLE W. JEANNE MEURER, JUDGE PRESIDING

PER CURIAM

 

Appellant Efrain Carrera brought suit against Starr County (the "county") alleging retaliatory termination in violation of the Whistleblower Act (the "Act"). See Tex. Gov't Code Ann. 554.001-.010 (West 1994 & Supp. 1996). (1) This appeal arises from a take-nothing summary judgment in favor of the county. Appellant urges that the trial court erred in finding that his claims were barred by the limitations period of the Act. Because we agree, we will reverse the judgment of the trial court.

 
THE CONTROVERSY

When reviewing a summary judgment, we take as true the evidence favorable to the non-movant, and in its favor resolve any doubt, as well as indulge every reasonable inference. MMP, Ltd. v. Jones, 710 S.W.2d 59, 60 (Tex. 1986). Viewed in this light, the summary judgment record shows the following. On October 15, 1991, Carrera, a former foreman/timekeeper, discovered that county equipment was located inside the confines of property owned by the Rio Grande City Independent School District. He reported these facts to the county attorney and was advised that it was illegal for county equipment to be on school district property. Appellant was further advised that he should remove the equipment. Without consulting his supervisor, Carrera ordered that the county's equipment be removed from school district property.

On October 18, Carrera was verbally notified that his employment with the county had been terminated. On October 24, appellant received written notification of his termination "because of insubordination, abuse of authority and county-owned vehicles." In the interim, Carrera consulted with an attorney and wrote to the Starr County Salary Grievance Committee asserting that his termination was in violation of the Act and requesting a formal hearing on the matter. In response, the county informed appellant that the proper forum to discuss his concerns would be before the commissioners court.

On November 12, Carrera invoked the county grievance process by submitting a written request for a hearing before the commissioners court. Appellant's claims were heard on the 20th; on November 26, the court voted to reinstate him with conditions. Carrera refused to accept the reinstatement without notification of the conditions. On December 12, Carrera learned that he would be reinstated as an at-will employee in the position of road hand at a reduced salary. Appellant declined the offer of reinstatement and continued to seek clarification of the court's decision. On February 14, 1992, the 113th day after he was terminated, Carrera filed suit in district court.

The county requested summary judgment on appellant's whistleblower claim on the grounds that (1) he failed to file his lawsuit within the ninety-day period of limitations provided for under the statute or he failed to exhaust the applicable county grievance procedure; and (2) no nexus existed between the alleged report of violation of law and his termination as required by the Act. The trial court granted the county's motion on the basis that appellant's claims were time barred and therefore no genuine issue of material fact existed. Appellant brings one point of error asserting that the trial court erred in granting summary judgment against him because his whistleblower suit was filed within the statutorily prescribed period of limitations.

 
STANDARD OF REVIEW

The question on appeal is not whether the summary-judgment proof raises a fact issue, but whether the summary-judgment proof establishes as a matter of law that there is no genuine issue of material fact as to one or more of the essential elements of the plaintiff's cause of action. Gibbs v. General Motors Corp., 450 S.W.2d 827, 828 (Tex. 1970). The standards for reviewing summary judgment are well established: (1) the movant for summary judgment has the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law; (2) in deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the nonmovant will be taken as true; and (3) every reasonable inference must be indulged in favor of the nonmovant and any doubts resolved in his favor. Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex. 1985). When a defendant relies on an affirmative defense, its burden is to conclusively prove all elements of the affirmative defense. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 679 (Tex. 1979). A defendant who moves for summary judgment on the basis of a deficiency in the plaintiff's ground of recovery has the burden of conclusively negating an element of the plaintiff's cause of action. See State v. $17,000, 809 S.W.2d 637, 640 (Tex. App.--Corpus Christi 1991, no writ).

 
LIABILITY UNDER THE WHISTLEBLOWER ACT

In its motion for summary judgment, the county asserted that Carrera did not file his claim within the applicable statutory limitations period, either because he did not file it within the ninety-day period provided for when there is no applicable grievance procedure, or because he did not, as required by statute, exhaust the county grievance procedure applicable to him.

Viewing the summary judgment record in the light we must view it under MMP, Ltd., the ninety-day statute of limitations for appellant's claim began on October 24, 1991, the date that he was officially notified of his termination. See Tex. Gov't Code 554.005. (2) Carrera invoked the appropriate grievance procedure on November 12, when he requested a hearing before the Starr County Commissioners Court. Once invoked, the grievance procedure tolled the ninety-day limitations period until a final determination was made or thirty-one days had lapsed. On November 26, Carrera received a decision from the commissioners court: that he could be reinstated with unspecified conditions. Appellant did not accept that decision and sought a final decision about the unspecified conditions. On December 12, the commissioners court explained the terms and conditions of his reinstatement. Although Carrera did not accept the offer of reinstatement and continued to seek further "clarification" up to the date that he filed suit in district court, the decision of the commissioners court on December 12 was sufficiently final to satisfy the exhaustion and tolling provisions of the whistle blower statute.

When an employee invokes the appropriate grievance procedure and obtains a final determination within thirty-one days of invoking the procedure, the limitations period is tolled under the whistleblower statute. See Tex. Gov't Code 554.006 (a)-(c). (3) Appellant asks this Court to accept December 12, 1991, as the date that he received a final decision from the commissioners court. We believe that although appellant was not satisfied with the decision and continued to seek "clarification" or some more favorable action, the decision was a final decision for purposes of the Act. Appellant's refusal to accept the county's offer does not affect the issue of its finality. Carrera had exhausted his employer's internal remedies and could file suit under the Act if his suit was timely.

The Act requires suit to be filed not later than the ninetieth day after the date of the alleged violation, excluding time spent exhausting the employer's internal grievance or appeal procedure. Tex. Gov't Code Ann. 554.005-.006 (West 1996). Exhaustion of internal remedies, however, is not required if the employer fails to render a final decision before the thirty-first day the grievance is initiated. Id. 554.006(d). Therefore a suit must be filed no later than 120 days following the violation. See id. 54.005-.006.; see also House Com. on Labor and Employment Relations, Bill Analysis, H.B. 1405, 71st Leg. R.S. (1989) ("The employee would be required to begin grievance procedures within ninety days after the alleged violation of the act. The grievance procedure and decision could take no longer than thirty days. The time used to follow grievance procedures would not be included in the ninety-day deadline for filing a suit against an employer."). Carrera received a final decision from the county within the thirty-day tolling period.

Carrera filed suit on February 14, 1992. The ninetieth day after his termination was January 22, 1992. By filing a grievance through the appropriate county procedure, Carrera invoked the tolling provisions of section 554.006 of the Act. Because appellant received a final decision on December 12, 1991, within the thirty-day period, the tolling provisions of the Act apply and appellant had 120 days within which to file his claim in district court. Carrera filed his claims on the 113th day after his termination, well within the applicable period of limitations.

Accordingly, we sustain appellant's point of error.

 
CONCLUSION

The judgment of the trial court is reversed and the cause is remanded to the district court for further proceedings.

 

Before Justices Powers, Jones and B. A. Smith

Reversed and Remanded

Filed: October 16, 1996

Do Not Publish

1. When appellant initiated this lawsuit in 1992, the Act was found at Texas Revised Civil Statutes article 6252-16a. The cause of action is governed by the law in effect at that time. Because the recodification of the statute and subsequent changes to it have no substantive impact on the issues relevant to our analysis, we cite the current Code provisions for the sake of convenience. See Act of Apr. 30, 1993, 73rd Leg., R.S., ch. 268, 46(1), 47, 1993 Tex. Gen. Laws 583, 986; Act of May 25, 1995, 74th Leg., R.S., ch. 721, 11, 1995 Tex. Gen. Laws 3812, 3814-15.

2. Texas Government Code section 554.005 provides the following:

 

Except as provided by section 554.006, a public employee who seeks relief under this chapter must sue not later than the 90th day after the date on which the alleged violation of this chapter:

(1) occurred; or

 

(2) was discovered by the employee through reasonable diligence.

3. Texas Government Code section 554.006 provides the following:

 

(a) An employee of a local government must exhaust that government's grievance or appeal procedures relating to suspension or termination of employment or unlawful discrimination before suing under this chapter.

 

(b) The employee must invoke the grievance or appeal procedures not later than the 90th day after the date on which the alleged violation of this chapter:

 

(1) occurred; or

 

(2) was discovered by the employee through reasonable diligence.

 

(c) Time used by the employee in exhausting the grievance or appeal procedures is excluded from the period established by section 554.005.

 

(d) This section does not apply if a final decision is not rendered before the 31st day after the date on which the employee initiated the grievance or appeal.

d. Id. 554.006(d). Therefore a suit must be filed no later than 120 days following the violation. See id. 54.005-.006.; see also House Com. on Labor and Employment Relations, Bill Analysis, H.B. 1405, 71st Leg. R.S. (1989) ("The employee would be required to begin grievance procedures within ninety days after the alleged violation of the act. The grievance procedure and decision could take no longer than thirty days. The time used to follow grievance procedures would not be included in the ninety-day deadline for filing a suit against an employer."). Carrera received a final decision from the county within the thirty-day tolling period.

Carrera filed suit on February 14, 1992. The ninetieth day after his termination was January 22, 1992. By filing a grievance through the appropriate county procedure, Carrera invoked the tolling provisions of section 554.006 of the Act. Because appellant received a final decision on December 12, 1991, within the thirty-day period, the tolling provisions of the Act apply and appellant had 120 days within which to file his claim in district court. Carrera filed his claims on the 113th day after his termination, well within the applicable period of limitations.

Accordingly, we sustain appellant's point of error.

 
CONCLUSION

The judgment of the trial court is reversed and the cause is remanded to the district court for further proceedings.

 

Before Justices Powers, Jones and B. A. Smith

Reversed and Remanded

Filed: October 16, 1996

Do Not Publish

1. When appellant initiated this lawsuit in 1992, the Act was found at Texas Revised Civil Statutes article 6252-16a. The cause of action is governed by the law in effect at that time. Because the recodification of the statute and subsequent changes to it have no substantive impact on the issues relevant to our analysis, we cite the current Code provisions for the sake of convenience. See Act of Apr. 30, 1993, 73rd Leg., R.S., ch. 268, 46(1), 47, 1993 Tex. Gen. Laws 583, 986; Act of May 25, 1995, 74th Leg., R.S., ch. 721, 11, 1995 Tex. Gen. Laws 3812, 3814-15.

2. Texas Government Code section 554.005 provides the following:

 

Except as provided by section 554.006, a public employee who seeks relief under this chapter must sue not later than the 90th day after the date on which the alleged violation of this chapter:

(1) occurred; or

 

(2) was discovered by the employee through reasonable diligence.

3. Texas Government Code section 554.006 provides the following:

 

(a) An employee of a local government must exhaust that government's grievance or appeal procedures relating to suspension or termination of employment or unlawful discrimination before suing under this chapter.

 

(b) The employee must invoke the grievance or appeal procedures not later than the 90th day after the date on which the alleged violation of this chapter:

 

(1) occurred; or