Fort Bend Independent School District v. Alice Gayle
371 S.W.3d 391
Tex. App.2012Background
- Gayle, an administrator for Fort Bend ISD, resigned after learning termination was recommended.
- Gayle’s counsel sent a written grievance on Nov. 19, asserting retaliatory action for reporting grant compliance failures.
- School received the grievance Nov. 22 and scheduled a grievance hearing, exchanging multiple proposed dates with Gayle’s counsel.
- Gayle’s counsel failed to commit to hearing dates; the 60-day window for the grievance proceeded with scheduling delays.
- Gayle filed the whistleblower suit the day before the scheduled grievance hearing, after notice of the hearing was provided.
- School moved for dismissal arguing Gayle did not initiate the grievance as required; trial court denied the plea to the jurisdiction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did Gayle initiate the grievance under 554.006(a)? | Gayle’s written grievance initiation satisfied § 554.006(a). | Initiation requires meaningful participation during the sixty-day period. | Yes; filing the notice suffices to initiate. |
| Is meaningful participation required to satisfy initiation? | Initiation alone satisfies the statute; no requirement for participation. | Initiation includes meaningful participation within sixty days. | No; initiation does not require meaningful participation. |
| What remedy follows premature filing if the sixty-day period is not observed? | Abatement is the proper remedy, not dismissal, when initiation occurred. | Premature filing warrants dismissal for lack of jurisdiction. | Abatement is proper remedy; dismissal is not required when initiation occurred. |
| Is Barrett still controlling after 311.034 on jurisdictional prerequisites? | Barrett remains applicable for abatement when initiation occurred. | Barrett is superseded by newer statutory framework. | Barrett remains good law for abatement; it governs improper early filing after initiation. |
Key Cases Cited
- Barrett v. University of Texas Med. Branch, 159 S.W.3d 631 (Tex. 2005) (abatement, not dismissal, when grievance initiated but not resolved within sixty days)
- Gregg County v. Farrar, 933 S.W.2d 769 (Tex. App.—Austin 1996) (timeliness and protections for employee in grievance processes)
- Montgomery County Hosp. Dist. v. Smith, 181 S.W.3d 844 (Tex. App.—Beaumont 2005) (distinguishes initial initiation from failure to participate)
- Rivera v. Fort Bend Indep. Sch. Dist., 93 S.W.3d 315 (Tex. App.—Houston [14th Dist.] 2002) (purpose of § 554.006 is to allow agency to correct errors before litigation)