Blаire REID, Appellant v. SSB HOLDINGS, INC., d/b/a Protec Laboratory, Appellee
No. 06-15-00094-CV
Court of Appeals of Texas, Texarkana.
Decided: October 25, 2016
Submitted: June 3, 2016
Michael A. Yanof, Cassie J. Dallas, Barry Moscowitz, Thompson, Coe, Cousins & Irons, LLP, Dallas, TX, for appellee.
Before Morriss, C.J., Moseley and Burgess, JJ.
OPINION
Opinion by Justice Burgess
After Blaire Reid filed her suit against SSB Holdings, Inc., d/b/a Protec Laboratory (Protec) alleging unlawful sexual
I. Background
In her amended petition, Reid alleged that, on or about May 10, 2013, while she was employed as the personal assistant to Protec‘s director of opеrations, a fellow employee began sexually harassing her through text messages. She alleged that, although she reported the harassment to her supervisor and even though Protec had a written policy forbidding sexual harassment and procedures for the investigation and resolution of complaints, nothing was done by Protec regarding her complaint. According to Reid, the fellow employee escalated the harassment over the next few days through telephonе calls, voice messages, and in-person statements. Then, on May 14, 2013, when she again reported the harassment to her supervisor, he terminated her employment, stating that she was “causing drama.” Reid also alleged that, in October 2013, she filed a discrimination complaint with the Commission3 based on sexual harassment and retaliation, which was dismissed by the Commission.
Protec filed a plea to the jurisdiction alleging that Reid had not exhausted her administrative remedies by filing a timely complaint of disсrimination under Chapter 21 of the TCHRA within 180 days of the alleged discriminatory act. See
The evidence attached to the plea to the jurisdiction and Reid‘s response showed that, on or about October 22, 2013, Reid filed with the Commission, by email, a form promulgated by the Commission‘s Civil Rights Division entitled “Employment Discrimination Complaint Form” (the complaint form). On the complaint form, Reid indicated that her complaint was for sexual discrimination and retaliation and set forth essentially the same allegations she later made in her amended petition. In addition, Reid responded affirmatively to a question on the form asking, “If we draft your charge and send it to you at your email address, will you print, sign, and return the form that same day?” The complaint form contains the instruction, which Reid followed, to return the form by email to EEOIntake@twc.state.tx.us.
In addition, Reid produced evidence that, by letter dated September 6, 2013, her attorney notified Protec that he was representing her and detailed her claims of sexual harassment and wrongful termination. By letter dated September 30, 2013, the attorneys for Protec notified Reid‘s attorney of their representation of Protec in connection with the allegations made in his September 6 letter.
On February 28, 2015, a short hearing was held on Protec‘s plea to the jurisdiction. Five months later, the trial court granted Protec‘s plea to the jurisdiction and dismissed Reid‘s claims with prejudice.
II. Standard of Review
We review a challenge to the trial court‘s subject-matter jurisdiction de novo. Tex. Dep‘t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 228 (Tex. 2004). It is the plaintiff‘s burdеn to affirmatively plead facts demonstrating the trial court‘s jurisdiction. Id. at 226; Bartosh v. Sam Houston State Univ., 259 S.W.3d 317, 321 (Tex. App.—Texarkana 2008, pet. denied). In our review, we initially determine whether the plaintiff has alleged facts that affirmatively demonstrate the trial court‘s jurisdiction, construing the pleadings liberally in favor of the plaintiff. Miranda, 133 S.W.3d at 226; City of Waco v. Lopez, 259 S.W.3d 147, 150 (Tex. 2008). When the “plea to the jurisdiction challenges the existence of jurisdictional facts,” as in this case, we also “consider the relevant evidence submitted by the partiеs” and “take as true all evidence favorable to the non-movant.” Miranda, 133 S.W.3d at 227-28. Further, all reasonable inferences are indulged, and any doubts resolved, in favor of the nonmovant. Id. at 228. Like a summary judgment, if a disputed material fact remains regarding the jurisdictional issue, the plea to the jurisdiction should not be granted. See id. When the jurisdictional facts are undisputed, as in this case, we “make[] the jurisdictional determination as a matter of law based on those undisputed facts.” Lueck v. State, 325 S.W.3d 752, 757 (Tex. App.—Austin 2010, pet. denied) (citing Miranda, 133 S.W.3d at 227-28).
A. Analysis
Section 21.201 of the Texas Labor Code provides that a person claiming to be injured by an unlawful employment practice, or her agent, may file a complaint with the Commission.
The Texas Supreme Court has held that the filing of a complaint with the Commission and pursuing administrative
Nevertheless, in her first point of error, Reid asserts that the trial court erred because exhaustion of remedies is no longer a jurisdictional bar to bringing a civil suit for employment discrimination. Reid points out that the TCHRA was enacted for, inter alia, the express purpose of executing the policies of Title VII of the Civil Rights Act of 1964 and its subsequent amendments and that Texas courts look to federal cases interpreting comparable provisions of the federal statute when reviewing issues arising under Chapter 21. See
Reid also points to United Services Automobile Ass‘n, arguing that, in partially overruling Schroeder, the Texas Supreme Court recognized that “[t]he United States Supreme Court has consistently construed Title VII‘s requirements as mandatory[,] but not jurisdictional.” In re United Servs. Auto. Ass‘n, 307 S.W.3d 299, 308 (Tex. 2010). Protec responds that the primary holding of Schroeder, i.e., that an action under the TCHRA requires an exhaustion of remedies, has never been repealed, that Schroeder was reaffirmed as recently as 2010, and that exhaustion of administrativе remedies is an area where the Texas rule differs from the federal rule. See Waffle House, Inc. v. Williams, 313 S.W.3d 796, 804 (Tex. 2010). It also argues that, to exhaust her administrative remedies, a plaintiff must file a verified complaint with the Commission.
In Schroeder, the plaintiff brought suit alleging age discrimination against Texas Iron Works (TIC) in state district court without first filing a complaint with the Commission. Schroeder, 813 S.W.2d at 484. TIC moved for, and was granted, summary judgment based on Schroeder‘s failure to file a complaint with the Texas Commission on Human Rights,5 and based
Subsequent to Schroeder, the Texas Supreme Court began taking what it characterized as a “modern direction of policy” regarding subject-matter jurisdiction. Dubai Petroleum Co. v. Kazi, 12 S.W.3d 71, 76 (Tex. 2000) (quoting Restatement (Second) of Judgments § 11 cmt. e (1982)). In Dubai, the court abandoned its previous long-held policy that viewed the failure of a plaintiff “to establish a statutory prerequisite as jurisdictional,” Id. (overruling in part Mingus v. Wadley, 115 Tex. 551, 285 S.W. 1084 (Tex. 1926)), and instead held that it goes “in reality to the right of the plaintiff to relief.” Id. at 77 (quoting 21 C.J.S. Courts § 16, at 23 (1990)).
The Texas Supreme Court has stated that, since the Dubai decision, it has been “reluctant to conclude that a provision is jurisdictional, absent clear legislative intеnt to that effect.” United Services Auto. Ass‘n, 307 S.W.3d at 306 (quoting City of DeSoto v. White, 288 S.W.3d 389, 393 (Tex. 2009)). In addition, while not overruling its holding in Schroeder that exhaustion of administrative remedies under the TCHRA is mandatory and jurisdictional, the court has recognized that several courts of appeals have questioned whether the Dubai decision represented a retreat from this position. Id. at 307 (citing Ramirez v. DRC Distribs., Ltd., 216 S.W.3d 917, 921 n.8 (Tex. App.—Corpus Christi 2007, pet. denied) (collecting cases)).
In United Services Automobile Ass‘n, the Texas Supreme Court reexamined its statement in Schroeder that the time limit to bring suit under Section 21.256 is jurisdictional. Id. In its analysis, the court began by examining the statutory language with the presumption “that the Legislature did not intend to make the [provision] jurisdictional; a presumption overcome only by clear legislative intеnt to the contrary.” Id. (quoting City of DeSoto, 288 S.W.3d at 394). The court noted that, while the statute used mandatory language,6 nothing in the statute indicated that the requirement was jurisdictional or that noncompliance would result in dismissal for lack of subject-matter jurisdiction. Id. at 308.
Finally, the court considered the consequences resulting from each interpretation. Id. at 309 (citing Helena Chem., 47 S.W.3d at 495). The court pointed out that interpreting the statute as jurisdictional would leave trial court judgments granting or denying motions for summary judgment based on limitations, and appellate decisions affirming the same, subject to attack since those courts would be without power to render those decisions. Id. at 310. The court stated that “[i]t is preferable to ‘avoid a result that leaves the decisions and judgments of [a tribunal] in limbo and subject to future attack, unless that was the Legislature‘s clear intent.‘” Id. (quoting City of DeSoto, 288 S.W.3d at 394). This analytical framework to determine whether a statutory requirement is jurisdictional or only mandatory is consistent with “the analysis that the [S]upreme [C]ourt has employed in other post-Dubai cases, in keeping with the predominant trend to view most statutory prerequisites as mandatory but not jurisdictional.” Lueck, 325 S.W.3d at 760 (citing City of DeSoto, 288 S.W.3d at 393; Igal v. Brightstar Info. Tech. Grp., Inc., 250 S.W.3d 78, 86 (Tex. 2008), superseded by statute,
Based on its consideration of the statute, its purposes, and the consequences of competing interpretations, the Supreme Court held that the limitations periоd contained in Section 21.256 was mandatory, but not jurisdictional, and overruled Schroeder to the extent it held otherwise. Although United Services Automobile Ass‘n did not expressly overrule Schroeder‘s primary holding that the exhaustion of administrative remedies is mandatory and jurisdictional, appellate courts are in conflict over whether the exhaustion of administrative remedies is jurisdictional or merely mandatory. Cf., e.g., Gorman v. Verizon Wireless Tex., L.L.C., 753 F.3d 165, 169-70 (5th Cir. 2014) (holding that United Services Automobile Ass‘n implicitly overruled Schroeder‘s holding that exhaustion of remedies is jurisdictional), with Ajayi v. Walgreen Co., 562 Fed. Appx. 243, 245 (5th Cir. 2014) (per curiam) (holding that United Services Automobile Ass‘n did not overrule Schroeder‘s holding that failure to file
Further, in two cases decided after United Services Automobile Ass‘n, the Texas Supreme Court reaffirmed that exhaustion of administrative remedies under the TCHRA is mandatory, but did not address whether it was also jurisdictional. In Waffle House, Inc., the court reaffirmed its holding in Schroeder that the TCHRA requires an exhaustion of administrative remedies, but did not address whether this was a jurisdictional defect. Waffle House, Inc., 313 S.W.3d at 805. Two years later, the Texas Supreme Court again reaffirmed that portion of its ruling that timely filing a complaint with the Commission is a mandatory prerequisite to filing a civil suit, but expressly declined to address the question of whether this requirement is jurisdictional. Prairie View A & M Univ. v. Chatha, 381 S.W.3d 500, 510 n.15, 514. Thus, while we agree that the Texas Supreme Court has not expressly overruled its holding in Schroeder that failure to exhaust administrative remedies under the TCHRA is a jurisdictional defect to bringing a civil suit, we also note that subsequent decisions by the court cast some doubt on the continued viability of that holding.7 However, we need not reach that issue to decide this case.
In this case, Protec has not disputed that Reid filed the complaint form with the Commission and that the complaint form was sufficient in all respects, except that it was not verified. By contrast, the plaintiff in Schroeder completely failed to file a complаint with the Commission, and the administrative system of review provided, under the TCHRA was not invoked before he filed his civil suit. See Schroeder, 813 S.W.2d at 485-86. Thus, the Texas Supreme Court was not presented with the question of whether a plaintiff who files a complaint with the Commission, but fails to verify it, as here, is jurisdictionally barred from bringing a civil suit. Neither party has directed us to, nor have we found, a Texas Supreme Court case addressing the question in this case. As has been seen, however, the Supreme Court has provided a framework for аnalyzing whether the specific requirements for a complaint contained in the TCHRA are jurisdictional, or “a non-jurisdictional requirement mandated by statute [that] may result in the loss of a claim.” Loutzenhiser, 140 S.W.3d at 359. Nevertheless, “that failure must be timely asserted and compliance can be waived.” Id.
First, we look at the statutory language “presuming ‘that the Legislature did not intend to make the [provision] jurisdictional,] a presumption [which may be] overcome only by clear legislative intent to the contrary.‘” United Services Auto. Ass‘n, 307 S.W.3d at 307 (quoting City of DeSoto, 288 S.W.3d at 394). As hаs been seen, the statute requires that the complaint be in writing, “made under oath,” state “that an unlawful employment practice has been committed,” set forth the facts supporting the complaint, and state sufficient facts to identify the respondent.
However, “[e]ven if a statutory requirement is mandatory, this does not mean that compliance is necessarily juris-
Next we consider the statute‘s purpose. United Services Auto. Ass‘n, 307 S.W.3d at 308. Since the TCHRA was enacted to execute the policies of Title VII, is modeled after the federal law, and has the goal of coordinating state and federal law regarding employment discrimination, we may look to federal cases interpreting analogous federal statutes in interpreting the TCHRA. Id. Under federal law, a charge filed with the Equal Employment Opportunity Commission (EEOC), like a complaint filed with the Commission, is required to be under oath.
Further, the purpose of the verification requirement is to “protect[] emplоyers and coworkers ‘from the disruption and expense of responding to a claim unless a complainant is serious enough and sure enough to support it by oath subject to liability for perjury.‘” Gad v. Kan. State Univ., 787 F.3d 1032, 1038 (10th Cir. 2015) (quoting Edelman v. Lynchburg Coll., 535 U.S. 106, 113, 122 (2002)); Buck v. Hampton Twp. Sch. Dist., 452 F.3d 256, 263 (3d Cir. 2006). Federal courts construe the verification requirement “in the context of Title VII as a whole.” Buck, 452 F.3d at 263. The United States Supreme Court explained:
[T]he verification provision is meant to provide some degree of insurance against catchpenny claims of disgruntled, but not necessarily aggrieved, еmployees. In requiring the oath or affirmation, however, Congress presumably did not mean to affect the nature of Title VII as “a remedial scheme in which laypersons, rather than lawyers, are expected to initiate the process.”
Edelman, 535 U.S. at 115 (quoting EEOC v. Commercial Office Prods. Co., 486 U.S. 107, 124 (1988)). As a result, the federal courts have generally held that the failure to verify the charge in a Title VII claim is not a jurisdictional bar to filing suit. Gad, 787 F.3d at 1039; Buck, 452 F.3d at 262-63; Conner v. La. Dep‘t of Health & Hosps., 247 Fed. Appx. 480, 481 (5th Cir. 2007) (per curiam); Price, 687 F.2d at 79. The United States Third Circuit Court of Appeals explained that, since “the verification requirement is concerned only with protecting an employer from responding to an unverified charge[, w]hen an employer files a re-
Similarly, the Dallas and Corpus Christi Courts of Appeals have held that the failure to verify a complaint under the TCHRA is not a jurisdictional defect. In Barth v. Hoffman-La Roche, Inc., No. 05-01-00302-CV, 2002 WL 1225684 (Tex. App.—Dallas June 6, 2002, no pet.) (not designated for publication), the Dallas court held that, since the TCHRA is patterned after Title VII, and the verification requirement for a federal discrimination charge is not jurisdictional, Barth‘s failure to verify her complaint to the Commission “did not deprive the trial court of subject matter jurisdiction.” Id. at *6.9 In Wal-Mart Stores, Inc. v. Canchola, 64 S.W.3d 524 (Tex. App.—Corpus Christi 2001), rev‘d on other grounds, 121 S.W.3d 735 (Tex. 2003), the Corpus Christi Court of Appeals rejected Wal-Mart‘s argument that Canchola‘s unverified EEOC intake questionnaire filed with the Commission did not constitute a formal complaint under the TCHRA and that, therefore, Canchola had not exhausted his administrative remedies. Id. at 535. Instead, the court, pointing to Section 21.201(e)‘s provision that a complaint may be amended to cure technical defects such as a failure to verify the complaint, found that the filing of the unverified questionnaire “suffice[d] to institute administrative review under the TCHRA.” Id. As in this case, Canchola‘s complaint was dismissed by the Commission at the intake stage. Id. at 533, 535.
Finally, we “consider the consequences that result from each interpretation.” United Services Auto. Ass‘n, 307 S.W.3d at 309. If the verification requirement is jurisdictional, those courts that have granted judgments on the merits when no verified complaint was filed “would have had no power to do so, nor would appellate courts have had the power to affirm the judgments.” Id. at 310; see Barth, 2002 WL 1225684 at *6; Canchola, 64 S.W.3d at 541. The Texas Supreme Court has directed that “[i]t is preferable to ‘avoid a result that leaves the decisions and judgments of [a tribunal] in limbo and subject to future attack, unless that was the Legislature‘s clear intent.‘” United Services Auto. Ass‘n, 307 S.W.3d at 310 (quoting City of DeSoto, 288 S.W.3d at 394). Conversely, if the vеrification requirement is not jurisdictional, the respondent may still challenge an unsworn complaint‘s deficiency both at the Commission and in the trial court.10
Since the language of the statute does not clearly express a legislative intent that the failure to verify a complaint filed with the Commission deprives the trial court of subject-matter jurisdiction, the purpose of the statute is not impaired by interpreting the verification requirement as non-jurisdictional, and such interpretation promotes the finality of judgments, we find that Reid‘s failure to verify her complaint filed with the Commission did not deprive the trial court of subject-matter jurisdiction. Therefore, we find that the trial court erred in granting Protec‘s plea to the jurisdiction.
We reverse the trial court‘s order granting Protec‘s plea to the jurisdiction and remand this case to the trial court for further proceedings consistent with this opinion.
Ralph K. Burgess
Justice