lorraine-miale-v-nueces-county-juvenile-department-nueces-county-nueces ( 2002 )

                                   NUMBER 13-01-531-CV

                             COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                                CORPUS CHRISTI

___________________________________________________________________

LORRAINE MIALE,                                                                Appellant,

                                                   v.

NUECES COUNTY JUVENILE DEPARTMENT,

NUECES COUNTY, NUECES COUNTY,

D/B/A NUECES COUNTY JUVENILE

DEPARTMENT, JAY RAVELING, AND

JOE GARCIA, IN THEIR OFFICIAL CAPACITIES,                       Appellees.

___________________________________________________________________

                         On appeal from the 94th District Court

                                  of Nueces County, Texas.

__________________________________________________________________

                                   O P I N I O N

        Before Chief Justice Valdez and Justices Dorsey and Rodriguez

                                Opinion by Justice Rodriguez

This is an accelerated appeal from the trial court=s order sustaining appellees= plea to the jurisdiction and dismissing appellant=s case.^[1]  By three issues, appellant, Lorraine Miale (Miale), generally contends the trial court erred in sustaining the plea to jurisdiction and dismissing her lawsuit.  We affirm.

Miale was employed with appellee, Nueces County Juvenile Detention Department.^[2]  Beginning in April of 1998, Miale made several complaints to her supervisor and co-workers concerning the behavior of fellow employees.  In July of 1998, Miale alleged that, as a result of these complaints, Nueces instituted adverse employment and personnel actions against her in violation of chapter 554 of the Texas Government Code, commonly referred to as the Texas Whistleblower Act.  On October 2, 1998, Miale sent a grievance letter to her employer and Nueces County Judge  Richard Borchard (Judge Borchard) alleging adverse employment actions.  In the letter, she complains the retaliatory actions by Nueces specifically included Areprimands and shift changes.@  On October 9, 1998, Miale received a letter from Judge Borchard indicating her complaints were not covered under the grievance process.  The next business day, October 12, 1998, Miale filed an original petition alleging a cause of action pursuant to the Texas Whistleblower Act.

                                              I.  Standard of Review

A plea to the jurisdiction is a dilatory plea; its purpose is Ato defeat a cause of action without regard to whether the claims have merit.@  Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000).  The plea challenges the trial court=s authority to determine the subject matter of a pleaded cause of action.  City of Midland v. Sullivan, 33 S.W.3d 1, 6 (Tex. App.BEl Paso 2000, pet. dism=d w.o.j.); State v. Benavides, 772 S.W.2d 271, 273 (Tex. App.BCorpus Christi 1989, writ denied).

We review a trial court=s ruling on a plea to the jurisdiction de novo because subject matter jurisdiction is a question of law. City of Fort Worth v. Robles, 51 S.W.3d 436, 439 (Tex. App.BFort Worth 2001, pet. denied); Gainesville Mem. Hosp. v. Tomlinson, 48 S.W.3d 511, 513 (Tex. App.BFort Worth 2001, pet. denied); see Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex. 1998).  In determining whether jurisdiction exists, we look to the allegations in the pleadings, accept them as true, and construe them in favor of the pleader.  Met-Rx USA, Inc. v. Shipman, 62 S.W.3d 807, 810 (Tex. App.BWaco 2001, pet. denied); Robles, 51 S.W.3d at 439. We also consider evidence necessary to resolve the jurisdictional issues raised.  Blue, 34 S.W.3d at 555; Shipman, 62 S.W.3d at 810; Baston v. City of Port Isabel, 49 S.W.3d 425, 427 n.2 (Tex. App.BCorpus Christi 2001, pet. denied).

II.  Compliance with the Whistleblower Act

By her second issue, Miale contends the court erred in granting Nueces= plea to the jurisdiction on the basis that she failed to exhaust the administrative process prior to filing suit under the Whistleblower Act. 

In its plea to the jurisdiction, Nueces argued that the trial court lacked subject matter jurisdiction because Miale did not follow proper grievance and appeal procedures as required under section 554.006 of the government code.^[3]  In support, Nueces attached a copy of the Nueces County Personnel Manual (Manual). Because Aa court deciding a plea to jurisdiction is not required to look solely to the pleadings but may consider evidence and must do so when necessary to resolve the jurisdictional issue raised,@ we will also review the Manual to determine whether Miale followed the County=s grievance and appeal procedures.  Blue, 34 S.W.3d at 555; see Shipman, 62 S.W.3d at 810.

A.  Grievance Procedure

In Miale=s petition, she alleges Nueces instituted adverse personnel actions against her on July 15, 1998, by transferring her involuntarily to a different job location and changing her shift.  The Manual requires that an employee initiate a grievance procedure within seven calendar days of receipt of the notice of transfer.  An employee must first verbally discuss the grievance with her immediate supervisor, and inform the supervisor that she is taking the first step of the grievance process.^[4]  The supervisor then has five calendar days to respond orally.  If the grievance is not settled, the employee must then send written notice of her grievance to the department head.  This must be done no later than seven calendar days after the employee receives the oral response from her supervisor.  The department head must respond to the written grievance within five working days.  If the grievance is still not resolved, the employee must forward the written grievance and answer from the department head to the personnel office, or the Civil Service Commission, within five calendar days of receiving the department head=s answer.

B.  Analysis

The Whistleblower Act requires an employee to initiate each step of the grievance procedure before suit can be filed.  See Tex. Gov=t Code Ann. ' 554.006(a) (Vernon Supp. 2002); Johnson v. City of Dublin, 46 S.W.3d 401, 405 (Tex. App.BEastland 2001, pet. denied); City of San Antonio v. Marin, 19 S.W.3d 438, 440 n.2 (Tex. App.BSan Antonio 2000, no pet.).  This gives the employer the opportunity to correct its errors by resolving any disputes before being subjected to the expense and effort of litigation.  Johnson, 46 S.W.3d at 405 (citing Marin, 19 S.W.3d at 441); City of Houston v. Cotton, 31 S.W.3d 823, 824 (Tex. App.BHouston [1st Dist.] 2000, pet. denied).

According to Miale=s petition, she did not initiate any grievance until October 2, 1998.  Her grievance was initiated by a written letter addressed to Nueces and Judge Borchard.  The letter stated she was filing a Agrievance in regards to employment actions taken against me which include reprimands and shift changes and which I believe were caused by my reporting actions of my co-workers.@  Not only did Miale fail to begin the grievance procedure by verbally communicating the grievance to her immediate supervisor, but she failed to follow any of the procedural steps in the Manual=s grievance procedure.  Furthermore, the grievance was filed over two months after the alleged grievance occurred.  We find that Miale failed to properly initiate the grievance procedure.^[5]

Because Miale failed to satisfy the mandatory statutory prerequisites to filing suit under the Whistleblower Act, the trial court lacked jurisdiction.  Johnson, 46 S.W.3d at 405; see Cotton, 31 S.W.3d at 824.  Therefore, the trial court properly sustained Nueces= plea to the jurisdiction and dismissed Miale=s case.^[6]   Miale=s second issue is overruled.^[7]

Accordingly, the trial court=s judgment is affirmed.

NELDA V. RODRIGUEZ

Justice

Do not publish.

Tex. R. App. P. 47.3.

Opinion delivered and filed

this 2nd day of May, 2002.

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^[1]This is an interlocutory accelerated appeal, authorized pursuant to section 51.014(8) of the Texas Civil Practice and Remedies Code.  Tex. Civ. Prac. & Rem. Code Ann. ' 51.014(a)(8) (Vernon Supp. 2002).

^[2]Appellees, Nueces County Juvenile Department, Nueces County, Nueces County d/b/a Nueces County Juvenile Department, and Jay Reveling and Joe Garcia, in their official capacities, will be collectively referred to as ANueces.@

^[3]Under section 554.006 of the Texas Government Code, an employee must initiate action under the grievance or appeal procedures of the employing entity prior to filing suit. See Tex. Gov=t Code Ann. ' 554.006(a) (Vernon Supp. 2002).

^[4]The grievance procedure applies to suspensions, demotions, terminations, transfers, and Aemployees . . . who allege unlawful discrimination, or who allege knowledge of a violation of any policy that unfairly affects their employment status.@

^[5]Although Miale alleges other adverse personnel actions, we find Miale did not initiate the grievance procedure as to any of them.  See Tex. Gov=t Code Ann. ' 554.006(a) (Vernon Supp. 2002); Johnson v. City of Dublin, 46 S.W.3d 401, 405 (Tex. App.BEastland 2001, pet. denied).

^[6]See generally Am. Motorists Ins. Co. v. Fodge, 63 S.W.3d 801, 805 (Tex. 2001) (if a claim is not within a court=s jurisdiction, and the impediment cannot be removed, then it must be dismissed); Speer v. Stover, 685 S.W.2d 22, 23 (Tex. 1985) (per curiam) (sustaining a plea to the jurisdiction requires dismissal).

^[7]Because of our disposition of Miale=s second issue, we need not address her first and third issues.  See Tex. R. App. P. 47.1