The Courts hold that you must file a whistleblower claim within 90 days of the retaliation and you must file a grievance (even if there is not one or it does not apply to you) and the 90 days is suspended while the grievance is pending unless it doesn’t.

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: (….

Also under the grievance procedure you no only must report the illegal act to the appropriate law enforcement agency and file the grievance (even if there is no grievance procedure (…)) but you must file the with the proper grievance system if your employer has more than one (El Paso Independent School District v. Kell, 465 S.W.3d 383 (Tex. App.—El Paso 2015)) and you must file a lawsuit within 90 days of the violation. This is easy if the violation is your termination but not so easy if you are facing a series of less severe forms of retaliation. However, it is always better to file earlier than later so that you can beat the 90 days. An employee has 90 days to file a lawsuit, but this time period is suspended by the filing of a grievance. Tex. Gov’t Code § 554.005, .006. As noted in prior article, an employee “must” file a grievance in accordance with the employer’s procedure before filing suit. If the employer has no such procedure the employee still must file an informal grievance. see:…. A formal grievance certainly tolls the running of the statute of limitations for judicial action. But what if the employer did not actually create a grievance system for the employee? One might suspect, based on Ward, that the statute of limitations is tolled by an informal grievance as well as by a formal one, but that is not the holding of the case of County of El Paso v. Latimer, 431 S.W.3d 844 (Tex. App.—El Paso 2014). In that case, the court stated that the statute of limitations was not tolled because, despite the employee’s grievance, the employer’s grievance procedure did not apply to the employee who filed the grievance. The court held that there was an issue of fact whether the grievance system applied to the plaintiff’s grievance.

So what is one to do. One case says that if the grievance does not apply to you or the agency does not have one you must file an informal grievance. Another case says that if there is no grievance system or it does not apply to you the limitations period is tolled. they seem contrary to each other and in fact they are. My advice? File a quick informal grievance and then file suit within 90 days. Of course, this really means that you should have already found a board certified employment lawyer who handles whistleblower and wrongful termination cases and is prepared to help you file an informal grievance and be ready to file suit within 90 days. That is tough to do but it is why I always say go seek out a lawyer early. If possible seek out an attorney before you report the illegal activity so that you can be prepared in case you are retaliated against.

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