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Before filing a whistleblower suit, a government employee “must initiate action under the grievance or appeal procedures” of the employer entity. This is true even if the employee is not allowed to file a grievance or one does not exist.

Written by Mr. Roger Davie on Wednesday, 30 Nov 2016.

I have written at length about the Texas Whistleblower Act and that you must be a government employee who reported illegal activity to an appropriate law enforcement agency: http://rogerdavie.com/news/whistleblowing-is-not-p...http://rogerdavie.com/news/before-a-a-government-e...

Before filing a whistleblower suit, a government employee “must initiate action under the grievance or appeal procedures” of the employer entity. Tex. Gov’t Code § 554.006(a).  The problem is that not all government agencies have a grievance procedure. This happens more than you would think.  Some smaller government employers such as water districts or charter schools may not have a formal grievance procedure. Also for some government employers not all employees are qualified to file a grievance.  This is especially true of new employees that have not met the government employees probationary procedure.

This question came up recently. In Ward v. Lamar University, 484 S.W.3d 440 (Tex. App.—Houston [14th Dist.] 2015), the court held that an employer agency’s lack of a formal grievance procedure does not relieve a whistleblower of an obligation to submit an informal grievance before she files a lawsuit. But this conclusion seems difficult to reconcile with a premise of Latimer, discussed below, in part d. Assuming an employee must file a grievance even when the employer has not created a process, the employee’s informal grievance must provide fair notice that an employee is appealing a particular adverse personnel decision. In Ward, the employee’s correspondence with two officials within the employer agency created at least a fact issue whether the employee had filed such a grievance, particularly in view of the agency’s failure to create a formal system or to provide any requirements for a grievance.

This is a big problem for government employees who want to file a whistleblower claim.  As an El Paso employment lawyer I often see government employees who have been wrongfully terminated and have reported illegal activity to the appropriate law enforcement agency but because they were a probationary employee they did not try and file a grievance.  Therefore they lose their right to make a whistleblower claim.  This is very unfair, but shows the need to seek a board certified employment lawyer as soon as possible if you think you want to report illegal activity or believe you may be wrongfully terminated.

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