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Click here for the full text of this decision FACTS:Acting on information gleaned from a colleague, Stephen Barth, a tenured professor at the University of Houston Conrad N. Hilton College of Hotel Management, told the school provost and the general counsel in 1998 that the colleague was being pressured to perform “questionable” accounting transactions and practices. Barth was subsequently denied a merit raise. Barth filed a grievance over the decision on March 10, 2000. The provost responded to this grievance on May 31. Barth filed a second grievance on Aug. 17, two weeks after being given final notice that he would not be given a merit raise. Barth filed a third grievance on Nov. 21. The second and third grievances were consolidated. The provost responded to these grievances, plus a few issues remaining from the first grievance on June 5, 2001. The provost’s letter said that since Barth had chosen not to appeal to the grievance committee, “I now regard this grievance procedure as ended.” Barth responded on June 18, asking for an appeal. Barth sued the university on July 5 under the Whistleblower Act. His petition claimed he had completed the grievance procedure. In a letter dated Sept. 5, 2001, the provost said, in response to Barth’s contention that the grievance process had been concluded, “I wish to state it is not concluded, at least not due to any action or decision on my part.” The parties did not continue any more communications. The university filed a plea to the jurisdiction, as well as a supplemental plea to the jurisdiction, both of which the trial court denied. The university argued that Barth did not timely filed his grievances. The university also argued that Barth’s issues do not constitute adverse personnel actions. HOLDING:Affirmed. Before getting to the merits of the case, the court considers Barth’s argument that this court has no jurisdiction because, under Dubai Petroleum Co. v. Kazi, 12 S.W.3d 71 (Tex. 2000), failure to allege and prove a statutory prerequisite to a statutory cause of action are not jurisdictional defects, so the limitations provision and grievance requirements of the Whistleblower Act are likewise not jurisdictional. The court acknowledges that other appellate courts have held that the limitations and grievance provisions of the Whistleblower Act are not jurisdictional, but the court points out that none of those cases has been approved by the Texas Supreme Court. Furthermore, this court has specifically held otherwise in Tex. S. Univ. v. Carter, 84 S.W. 3d 787 (Tex.App. Houston [1st Dist.] 2002, no pet.). The court adds that the Whistleblower Act requires initiation of remedies through a government’s grievance or appeal process, but it does not require exhaustion of those remedies. “Thus, whether the Act’s requirements are jurisdictional is open to question,” the court says, and so the court will continue to adhere to its own precedent. Turning, then, to the merits of the case, the court considers whether Barth’s grievances were timely or not. The court takes note of the provost’s letters. In the first, he said the grievance procedure was concluded. Barth filed suit within 90 days of that letter, even though the provost’s second letter said the procedure was not completed. The court finds sufficient factual allegations in Barth’s pleadings that could raise the continuing-violation doctrine. Whether or not that doctrine applies, and which acts triggered the 90-day limitations period of the Whistleblower Act, are issues that should be resolved by the trier of fact, the court holds. The court further holds that the acts about which Barth complained of in his grievances could reasonably be construed by a jury to be acts that, although only indirectly, “affected” Barth’s compensation, promotion, demotion, transfer, work assignment or performance evaluation. Which, if any, of these acts is an adverse personnel action is a contested issue of fact that should be resolved by the trier of fact. OPINION:Higley, J.; Radack, C.J., Higley and Bland, JJ.. CONCURRENCE:Bland, J. “This case presents the question of whether a plaintiff’s failure to comply with the Texas Whistleblower Act’s statutory requirements deprives a trial court of its subject matter jurisdiction. . . . The emerging jurisprudence of the Texas Supreme Court, however, strongly signals that it does not. Instead, absent a framework in which statutory requirements expressly define a trial court’s power to hear the subject matter, such requirements are not jurisdictional, but rather operate only as elements necessary to a recovery.”

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