The Texas Board of Pardons and Paroles (the Board) appeals the trial court’s denial of its plea to the jurisdiction. 1 Stuart Feinblatt, a hearings examiner employed by the Board, claims that after he reported allegedly illegal actions taken by the Board, he received a negative performance evaluation and disciplinary action. He filed a whistleblower cause of action against the Board alleging retaliatory adverse employment actions; he later amended his complaint to include a claim for retaliatory constructive discharge. See Tex. Gov’t Code Ann. §§ 554.001-.010 (West 1994 & Supp.2002). The Board filed a plea to the jurisdiction and a motion for summary judgment on the ground that Feinblatt’s claim did not effect a waiver of its immunity as provided for in the Act. See id. § 554.0035 (West Supp.2002). The Board contended that Feinblatt had failed timely to initiate administrative- remedies as required by the whistleblower statute and that he did not make a good-faith report to an appropriate law enforcement agency. See id. §§ 554.002, .006. The trial court denied the plea and the motion for summary judgment. We hold that (1) initiation of internal grievance procedures is a statutory prerequisite to suit and that Feinblatt timely initiated such procedures and (2) Feinblatt’s good-faith belief is an element of his cause of action and not a statutory prerequisite to suit. We therefore affirm the judgment of the trial court.
BACKGROUND
The statutory provisions relating to the Board are found in chapter 508 of the government code. See Tex. Gov’t Code Ann. §§ 508.001-.324 (West 1998 & Supp. 2002). Board members determine various matters in connection with parole and mandatory supervision. Id. §§ 508.044, .045. The statute gives the Board the power to determine:
(1) which inmates are to be released on parole or mandatory supervision;
(2) conditions of parole or mandatory supervision, including special conditions;
(3) the modification and withdrawal of conditions of parole or mandatory supervision;
(4) which releasees may be released from supervision and reporting; and
(5) the continuation, modification, and revocation of parole or mandatory supervision.
Id. § 508.044(b) (West Supp.2002). The Board employs hearings examiners to conduct hearings and recommend the appropriate action to the Board. See id. §§ 508.281, .2811. It has implemented rules which govern this process.
Feinblatt was employed by the Board in various positions from February 1981 until January 2001. Most recently, he held the position of hearings examiner with the
Feinblatt had previously voiced his opinion regarding the illegality of the Board’s actions to his supervisors, which provoked the Board to begin an investigation of Feinblatt in December 1999. The investigation concluded that Feinblatt had made insubordinate and inappropriate comments in the presence of parole officers and others. Following a hearing on January 6, 2000, the Board reprimanded Feinblatt for insubordination. Feinblatt received twelve months’ disciplinary probation and five days’ suspension without pay. 2 During his annual performance evaluation on May 23, Feinblatt’s supervisors gave him poor ratings, specifically noting the “many problems ... with Mr. Feinblatt’s excessive and inappropriate hearing officer’s comments, [his] comments off the record, procedural problems and inappropriate and unprofessional comments regarding the hearing process.” The evaluation also listed complaints and concerns with the way Feinblatt conducted parole hearings and drafted his reports. On June 15, Feinblatt signed the evaluation and indicated his protest of the ratings and his opinion that “this evaluation can be nothing less than retaliation for my exercising my right to speak about Board misconduct. I protest strongly and urge revision.” On July 11, Feinblatt submitted a grievance in which he complained that the evaluation was unfair and requested a new evaluation; the Board did not receive the grievance until July 17. He also referenced his belief that the evaluation was retaliatory in nature. On August 8, the Board rejected the grievance on the ground that it was not received within the fifteen-day time limit prescribed in its internal grievance procedure.
On September 13, 2000, Feinblatt filed this suit. In December, the Board investigated Feinblatt’s conduct as hearing officer at a parole hearing and concluded that Feinblatt had violated Board policy by “failing] to remain neutral and impartial and failing] to follow proper hearing procedures.” On January 24, 2001, the Board recommended Feinblatt’s dismissal. Fein-blatt resigned on January 30, claiming he had been constructively discharged. On February 1, Feinblatt received a letter from the Board dated January 29 advising him of his right to mediation. Feinblatt asserts that he was led to believe by Board employees that mediation ceased to be available to him because he was no longer an employee after he resigned. He attempted to submit a grievance on April 2, but it was again rejected as untimely. Fe-inblatt amended his whistleblower pleadings on May 29 to include constructive
Standard of Review 3
Subject-matter jurisdiction is essential to the authority of a court to decide a case.
Texas Ass’n of Bus. v. Texas Air Control Bd.,
We review the district court’s determination of subject-matter jurisdiction
de novo. Mayhew v. Town of Sunnyvale,
Exhaustion of Administrative Remedies
Section 554.006 of the Whistleblower Act requires that before filing suit, an employee must initiate internal grievance or appeal procedures. Tex. Gov’t Code Ann. § 554.006;
Hohman,
(a) A public employee must initiate 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 before suing under this chapter.
(b) The employee must invoke the applicable 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.
Tex. Gov’t Code Ann. § 554.006(a), (b). It is undisputed that Feinblatt submitted a grievance to the Board within ninety days of his constructive discharge. 4 The Board asserts that because Feinblatt failed to submit his grievance within the fifteen-day period required by the Board’s grievance policy, Feinblatt failed to initiate grievance or appeal procedures as contemplated by section 554.006.
The Board argues that the requirement in subsection (a) that an employee “initiate action under the grievance or appeal procedures of the [employer]” mandates that an employee comply with whatever time limit is imposed by the employer’s procedures, not the ninety-day time limit in section 554.006(b). The Board interprets the ninety-day limit as a “default” provision applicable only when the employer’s internal grievance or appeal procedure has no specific provision, or as the statutorily imposed maximum should the employer afford more than ninety days. Feinblatt responds that the Board’s internal time limit may not trump the statutory provision, which controls in all instances. Because both of his grievances were submitted within ninety days of the relevant adverse employment action, he insists that he has fully complied with the statutory grievance requirement. For support, Feinblatt relies on
Hohman’s
holding that the ninety-day requirement in section 554.006(b) is the applicable time period within which an employee must initiate internal procedures.
See Hohman,
We agree with the
Hohman
decision that the ninety-day provision in the Act controls. The plain meaning of the statute does not support the Board’s contrary interpretation. The requirement that an employee initiate action under his employer’s grievance procedure is found in subsection (a). That subsection is silent as to how long an employee has to initiate this action. Subsection (b) refers to a time limit and states that an employee “must invoke the applicable ... procedures not later than the 90th day after the date” of the adverse action. The Board’s position would both add language to subsection (a) and ignore the express language in subsection (b). Moreover, the Board’s reading would lead to absurd results.
See Employees Ret Sys. v. Jones,
Moreover, the Board’s position does not further the policy reflected by the initiation requirement. We have noted that “requiring the exhaustion
5
of grievance and appeal processes as provided in the whistleblower statute encourages compliance through voluntary resolution, conference, conciliation and informal processes other than litigation.”
City of Austin v. Ender,
[An] eminently practical reason for requiring exhaustion of remedies is that the complaining party may be successful in vindicating his rights in the administrative process and never have to resort to court. Notions of administrative autonomy require further that the agency be given first opportunity to discover and correct its own errors.
Gregg County v. Farrar,
Moreover, in the instant case, the Board was on notice of Feinblatt’s claims the day that Feinblatt resigned: “As I have been constructively discharged in retaliation for whistleblowing, I must retire from agency service as of 1/31/2001.” While not technically a grievance as defined by the Board’s policy, Feinblatt’s statement alerted the Board to his whistleblower complaints. Feinblatt also submitted his formal grievance on April 2, within ninety days of his resignation.
The Board next contends that Fe-inblatt failed to fully comply with its appeal or grievance procedure because he elected not to participate in the Board’s optional mediation procedure. The Board offers its employees an opportunity to mediate employment disputes; this procedure, however, is available only for a fee of $50, to be paid by the employee. There is evidence in the record that mediation was not even available to Feinblatt once he resigned because he was no longer an employee. Assuming that he was eligible to seek mediation, the fact that a governmental entity may offer its employees additional means by which to resolve disputes does not work to engraft those procedures on the initiation requirement in section 554.006.
See City of Houston v. Cotton,
Good-Faith Report
The Board also asserts that Fein-blatt failed to invoke the Act’s waiver of immunity because he did not make a good-faith report of a violation of law and he did not in good faith make the report to someone the employee “believes is authorized to (1) regulate under or enforce the law alleged to be violated in the report; or (2) investigate or prosecute a violation of criminal law.” Tex. Gov’t Code Ann. § 554.002.
7
In a whistleblower action, a plaintiffs good-faith report of illegal activity to an appropriate law enforcement authority is an element of the cause of action.
See Texas Dep’t of Criminal Justice v. Terrell,
The Board asserts that Feinblatt’s allegation that he made a good-faith report of the Board’s illegal actions is fraudulent or made in bad faith because “no reasonable [parole] hearing officer could ever believe that the Board, given its statutory mandate as the sole and final decision-maker in parole revocation proceedings, does not have the authority to overrule one of its delegated hearing officers.” Because Fe-inblatt’s bad-faith allegations cannot confer jurisdiction on the trial court, the Board argues that this Court should reverse the trial court’s denial of its plea to the jurisdiction.
See Sullivan,
Alternatively, the Board suggests that this Court should analogize the waiver of sovereign immunity in the Whistleblower Act to the limited waiver in the Texas Tort Claims Act. Compare Tex. Gov’t Code Ann. §§ 554.001-.010 (West 1994 & Supp. 2002), with Tex. Civ. Prac. & Rem.Code Ann. §§ 101.001-.109 (West 1997 & Supp. 2002). A comparison of the relevant provisions, however, does not convince us to make this analogy. The Whistleblower Act contains a broad waiver of immunity expressed in expansive language: “A public employee who alleges a violation of this chapter may sue the employing state or local governmental entity for the relief provided by this chapter. Sovereign immunity is waived and abolished to the extent of liability for the relief allowed under this chapter for a violation of this chapter.” Tex. Gov’t Code Ann. § 554.0035 (West Supp.2002) (emphasis added). The waiver provision in the Tort Claims Act, however, is limited in scope:
A governmental unit in the state is liable for:
(1) property damage, personal injury, and death proximately caused by the wrongful act or omission or the negligence of an employee acting within his scope of employment if
(A) the property damage, personal injury, or death arises from the operation or use of a motor-driven vehicle or motor-driven equipment; and
(B) the employee would be personally liable to the claimant according to Texas law; and
(2) personal injury and death so caused by a condition or use of tangible personal or real property if the governmental unit would, were it a private person, be liable to the claimant according to Texas law.
Tex. Civ. Prac. & Rem.Code Ann. § 101.021 (West 1997).
Moreover, the supreme court has specifically addressed the waiver provision in the Tort Claims Act and emphasized that it is limited in scope.
See Texas Dep’t of Criminal Justice v. Miller,
Furthermore, we note that the Tort Claims Act serves different purposes and is guided by different policy concerns than is the Whistleblower Act. The Tort Claims Act provides for a limited exception to the general rule that the government and its employees are immune from liability for their tortious acts.
City of Denton v. Van Page,
The whistleblower statute has a twofold purpose: (1) protecting public employees from retaliation by their employer when, in good faith, an employee reports a violation of law, and (2) securing lawful conduct on the part of those who direct and conduct the affairs of public bodies.
Ender,
CONCLUSION
We hold that while section 554.006 is a statutory prerequisite to suit, Feinblatt complied with its requirement to initiate internal grievance or appeal procedures within ninety days. We also hold that section 554.002, which conditions an employee’s right to recovery on his good-faith belief and actions, is an element of a whis-tleblower cause of action that goes to an employee’s ultimate recovery on the merits and is not a jurisdictional prerequisite to suit. Therefore, we affirm the trial court’s denial of the Board’s plea to the jurisdiction.
MOTION FOR REHEARING
On motion for rehearing, the Texas Board of Pardons and Paroles asks this Court to reconsider our opinion in light of the supreme court’s recent decision in
Texas Department of Transportation
v.
Needham,
. Our review is limited to the trial court’s denial of the Board's plea to the jurisdiction. See Tex. Civ. Prac. & Rem.Code § 51.014(a)(8) (West Supp.2002). Although a denial of a motion for summary judgment that is based on official immunity is an ap-pealable interlocutory order, a denial of a motion asserting sovereign immunity is not. See id. § 51.014(a)(5).
Notes
. Appellee Stuart Feinblatt was employed by the Board, which is part of the Department of Criminal Justice. For convenience, we will refer to the Board and the Department collectively as “the Board.”
. As the result of a grievance meeting initiated by Feinblatt, the probation was reduced to eight months and the suspension without pay was eliminated.
. As noted, Feinblatt amended his original petition to include a claim for retaliatory constructive discharge. The parties's arguments regarding initiation of internal appeal procedures refer both to Feinblatt's attempt to appeal his employee evaluation, which he received on May 23, 2000 and his constructive termination, which occurred January 31, 2001. We deem the constructive discharge as "the alleged violation” for purposes of this opinion.
See
Tex. Gov’t Code Ann. § 554.006(b) (West Supp.2002);
University of Tex. Med. Branch v. Hohman,
. We note that some of the authorities on which we rely refer to the requirement imposed by section 554.006 as "exhaustion” of remedies. Prior to 1995, section 554.006 required an employee to exhaust an employer’s grievance or appeal procedures. See Act of May 4, 1993, 73d Leg., R.S., ch. 268, § 1, 1993 Tex. Gen. Laws 583, 610, amended by Act of May 25, 1995, 74th Leg., R.S., ch. 721, § 6, 1995 Tex. Gen. Laws 3812, 3813. The current version of section 554.006 requires that an employee timely initiate internal grievance or appeal procedures.
. The Board additionally asserts that mediation was the only administrative remedy available to Feinblatt because once he resigned, he was no longer an employee and thus not entitled to avail himself of the Board's employee grievance procedure. There is evidence in the record that contradicts the Board's assertion. The Board’s letter advising Feinblatt of his option to mediate the dispute states the following: "If you elect not to participate in mediation, no response is necessary. You will still have the option of submitting a grievance should youfr] dismissal be eventually approved.” (Emphasis added.) Had Feinblatt's dismissal been approved (which it may have been had he not first resigned), he would have ceased to become an employee. Yet the Board’s own letter states that he would have had the ability to submit a grievance regarding that decision. We therefore reject the Board’s alternative argument.
. For the purposes of the following discussion, we will refer to the good faith elements of section 554.002(a) and (b), i.e., that the employee make a good-faith report of a violation of law and make the report to an authority that the employee in good faith believes is an appropriate law enforcement authority, as a single good faith requirement.
. At oral argument, the Board argued that while in most cases an employee’s good faith is a non-jurisdictional element of her cause of action, in this case, we can determine Fein-blatt’s lack of good faith on a plea to the jurisdiction because as a matter of law, his belief in the Board’s illegal conduct is patently unreasonable. The Board's argument might have been appropriate in its motion for summary judgment as it goes to the merits of Feinblatt’s claim; the only issue before this Court, however, is that of jurisdiction.