On August 27, 2020, the Fifth Court of Appeals of Texas at Dallas reversed the dismissal of Fernando Herrera’s Texas Whistleblower case against Dallas Independent School District. In doing so, it ordered the case back to the trial court for further proceedings.   

The lawsuit alleges DISD terminated Mr. Herrera because he complained to Child Protective Services (“CPS”) about suspected child abuse by other DISD teachers. The lawsuit was initially filed in June 2018 in Dallas District Court.

The lawsuit states Mr. Herrera made two reports to CPS. The first report was made on or about March 31, 2017 after Mr. Herrera witnessed a DISD teacher inappropriately touching a student in front of several other teachers. The second report was made on May 16, 2017 after a concerned parent informed Mr. Herrera she suspected a teacher inappropriately touched a student. On May 17, 2017, DISD put Mr. Herrera on administrative leave.

It was not until April 26, 2018 that the Board of Trustees of DISD voted on the decision to terminate Mr. Herrera. That same night when the Board met to terminate Mr. Herrera, he filed a grievance against the decision to terminate him. The next day DISD closed that grievance. On May 4, 2018 Mr. Herrera received formal a formal notification from the Board informing him of the decision. In that notification, DISD stated that its “decision to terminate [Mr. Herrera] at the end of a contract period is final and may not be appealed.”

Pursuant to the Texas Whistleblower Act, employees wishing to avail themselves of this law must initiate the applicable grievance or appeal procedures before filing suit. Failure to do so, will lead to the ultimate dismissal the claim.

During litigation, DISD argued that even if Mr. Herrera’s allegations are true and he was terminated for reporting suspected child abuse, his case should be dismissed because he failed to follow the proper internal grievance procedures in appealing his termination.

This claim was made despite the fact that Mr. Herrera had actually filed a grievance in which he appealed, in part, his termination. In that same grievance, Mr. Herrera went on to state with clarity that he had claims of whistleblower violations. Nonetheless, the trial court dismissed Mr. Herrera’s case on September 27, 2019.

On appeal, the Fifth Court of Appeals of Texas at Dallas decided the trial court’s dismissal was in error. The Court of Appeals held that “dismissal was inappropriate because a fact question exists on whether Herrera complied with section 554.006 by initiating his April 26, 2018 DGBA (Local) grievance, making it improper for the trial court to grant DISD’s jurisdictional plea.”

In reversing the trial court’s dismissal, the Court of Appeals further addressed language in DISD’s notice of termination, which stated that the decision to terminate Mr. Herrera was “final and could not be appealed.” The Court of Appeals noted: “In fact, although DISD’s termination letter does not say so, non-appealability in the whistleblower context relates only to Herrera’s right of appeal to the commissioner of education under Texas Education Code section 21.103, not his appeal to DISD. At worst, DISD is deliberately attempting to lure whistleblowers into a jurisdictional abyss through a game of legal ‘gotcha,’ a game DISD appears to be more than willing to play to its advantage.”

We are excited and proud about the outcome of this decision and the ability to stand with our client in these trying times.

As can be seen from the above, Texas Whistleblower Act claims have many pitfalls and can sometimes require perseverance to overcome many obstacles. The requirement to initial the applicable grievance procedures is just one of many other statutory requirements under the law. That is why it is important to get an opinion from an attorney that is experienced in employment law. Specifically, contacting an attorney that has experience with Texas Whistleblower Act claims. Contact a Texas Employment Lawyer today to set up a consultation.