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Montgomery County Hospital Dist. v. Smith12/15/2005
rotected her rights to file a suit: (1) by sending a letter within ninety days of the alleged violation of the Whistleblower Act to MCHD's Board; (2) stating in the letter that she invoked her right to appeal her termination to the Board of Directors because of Hamilton's alleged conflict of interest; and (3) informing the Board that she was invoking its grievance procedures. She could have further advised that MCHD had sixty days following her notice in which to conclude its grievance procedure. See Tex. Gov't Code Ann. ยง 554.006(d) (Vernon 2004)(allowing up to sixty days for employer to render final decision); see also Beiser v. Tomball Hosp. Auth., 902 S.W.2d 721, 724 (Tex. App. - Houston [1st Dist.] 1995, writ denied)(finding that letter invoking grievance procedures sent in response to unclear post-termination grievance procedures perfected employee's right to sue). Had Smith filed such a notice, the MCHD could have decided whether to allow Hamilton to review the decision, or someone else. Regardless of the MCHD's response to a notice by Smith invoking an appeal of her termination, Smith's rights to sue would have been preserved.
By perfecting the right to sue by invoking her employer's appeal process, the public employee retains the right to pursue her day in court. Although Smith might not have succeeded at the initial stages of the procedure, exercising her appeal rights would not have been futile. By doing so, Smith would have ensured that she preserved the opportunity to have her employer's decision reviewed by an impartial fact finder.
With respect to her reassignment and termination, Smith never initiated her administrative remedies. Creating a futility exception under these circumstances would graft terms onto the Whistleblower Act that were not chosen by the Legislature.
Finally, creating a futility exception would be redundant because the statutory procedures already guarantee access to an impartial review. Under the circumstances here, we decline Smith's invitation to adopt a futility exception to the Whistleblower Act's mandate that public employees must initiate their employers' grievance and appeal procedures to preserve their rights to sue.
We sustain MCHD's issue that the trial court erred in denying MCHD's plea to the jurisdiction. We reverse the trial court's order denying MCHD's plea to the jurisdiction and render judgment dismissing Smith's claims against MCHD.
REVERSED AND RENDERED.
Submitted on October 27, 2005
Before McKeithen, C.J., Kreger and Horton, JJ.
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