COMPTROLLER, State of Texas, Appellant, v. Wesley LANDSFELD, Appellee.
No. 02-10-00271-CV.
Court of Appeals of Texas, Fort Worth.
Aug. 31, 2011.
352 S.W.3d 171
III. CONCLUSION
I would hold that the evidence is legally sufficient to support submission to the jury of the safer alternative design element of the windshield design defect claim in quеstion 6. Because the Majority Opinion holds otherwise, I respectfully dissent.
I concur with the Majority Opinion‘s disposition of Bell‘s other issues and of Appellants’ issues.
Greg Abbott, Attorney General, Daniel T. Hodge, First Assist. Attorney General, Bill Cobb, Deputy Attorney General for Civil Litigation, Robert B. O‘Keefe, Chief, General Litigation Division, Shelley N. Dahlberg, Assistant Attorney General, Austin, TX, for Appellant.
Foreman, Lewis & Hutchison, P.C., S. Rafe Foreman, Susan E. Hutchison, Kern Lewis, Grapevine, TX, for Appellee.
PANEL: DAUPHINOT, GARDNER, and McCOY, JJ.
BOB MCCOY, Justice.
I. Introduction
In three issues, Appellant Comptroller, State of Texas (TCPA) appeals a judgment in favor of Appellee Wesley Landsfeld. We vacate the trial court‘s judgment and dismiss the case.
II. Procedural and Factual Background
Because we resolve the parties’ dispute over Landsfeld‘s employment-discrimination claim on the TCPA‘s procedural challenge, a detailed factual recitation is unnecessary. Suffice it to say that on February 16, 2005, Landsfeld, who had already worked ten hours without lunch or a break, refused his supervisor Maria Lowrance‘s request to stay beyond 5:00 p.m., and that on March 1, 2005, during a meeting, TCPA Office Manager Jarrell Barnes, told Landsfeld that he could retire or be fired the following day for insubordination. That same day, Landsfeld tendered a letter to TCPA stating that he would retire on March 31, 2005.
On September 27, 2005, Landsfeld filed a complaint with the Equal Employment Opportunity Commission and the Texas Workforce Commission (TWC) claiming that TCPA discriminated against him because of his age and that he was involuntarily retired. On June 8, 2006, Landsfeld received a right-to-sue notice from TWC allowing him to bring suit within sixty days of that notice. See
III. Labor Codе Section 21.202‘s 180-Day Charge Filing Deadline
In its first two issues, TCPA argues that because Landsfeld filed his complaint beyond labor code section 21.202‘s mandatory and jurisdictional 180-day charge filing deadline and because jurisdiction cannot be waived, the trial court erred by not dismissing the case. We agree.
A. Standard of Review and Applicable Law
Whether a court has subject matter jurisdiction is a question of law reviewed de novo. Tex. Dep‘t. of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex.2004). Subject matter jurisdiction is an issue that may be raised for the first time on appeal. Tex. Ass‘n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 445 (Tex. 1993). It also may not be conferred by waiver or estoppel. Van ISD v. McCarty, 165 S.W.3d 351, 354 (Tex.2005). Sovereign immunity deprives a trial court of subject matter jurisdiction for lawsuits in which the state or certain governmental units have been sued unless the state consents to suit. Miranda, 133 S.W.3d at 224.
Chapter 21 of the labor code provides a limited waiver of sovereign immunity when a governmental unit has committed age-based employment discrimination. See
Procedural requirements such as limitations, even if mandatory, may be waived unless they are jurisdictional. In re United Servs. Auto. Ass‘n (USAA), 307 S.W.3d 299, 307 (Tex.2010) (orig. proceeding). To determine whether a statutory requirement is jurisdictional, we apply statutory interpretation principles. City of DeSoto v. White, 288 S.W.3d 389, 394 (Tex.2009). Our goal is to ascertain legislative intent by еxamining the statute‘s plain language. Id.
1. Legislative Intent
2. Labor Code Section 21.202
Section 21.202 of the labor cоde reads “STATUTE OF LIMITATIONS. (a) A complaint under this subchapter must be filed not later than the 180th day after the date the alleged unlawful employment practice occurred. (b) The commission shall dismiss an untimely complaint.”
3. Government Code Section 311.034
Section 311.034 of the government code states that
[i]n order to preserve the legislature‘s interest in managing state fiscal matters through the appropriations process, a statute shall not be construed as a waiver of sovereign immunity unless the waiver is effected by clear and unambiguous language. In a statutе, the use of “person,” as defined by Section 311.005 to include governmental entities, does not indicate legislative intent to waive sovereign immunity unless the context of the statute indicates no other reasonable construction. Statutory prerequisites to a suit, including the provision of notice, are jurisdictional requirements in all suits against a governmental entity.
B. Analysis
In its first issue, TCPA argues that the trial court erred because section 21.202 is both mandatory and jurisdictional. TCPA specifically asserts that although the supreme court‘s holding in USAA overruled precedent as to section 21.256, it did not, as Landsfeld asserts,2 “call into question the jurisdictional nature of [section 21.202‘s] 180-day charge filing deadline.”
In USAA, the supreme court held that section 21.256, which is entitled “Statute of Limitations” and which sets a two-year limitation from the time of filing an administrative complaint to file a lawsuit, was not jurisdictional. 307 S.W.3d at 310; see
In USAA, the supreme court‘s analysis began with the presumption that the provision was nonjurisdictional, “a presumption overcome only by clear legislative intent to the contrary.” 307 S.W.3d at 307 (emphasis added). The supreme court noted that section 21.256 did not contain any language explicitly indicating that it was jurisdictional and considered that if the section‘s filing deadline were jurisdictional, many apparently final judgments would be open to attack. Id. at 308, 310. The supreme court preferred to avoid this result ”unless that was the Legislature‘s clear intent.” Id. (emphasis added). Unlike section 21.256, section 21.202(b)‘s mandate that “[t]he commission shall dismiss an untimely complaint” shows the legislature‘s intent to make the 180-day filing deadline jurisdictional.
Furthermore, in USAA, the supreme court concluded that
[w]hile the Legislature could make the Labor Code filing deadlines jurisdictional, as it has in cases involving statutory requirements relating to governmental entities, see
Tex. Gov‘t Code Ann. § 311.034 (providing that “statutory prerequisites to a suit, including theprovision of notice, are jurisdictional requirements in all suits against a governmental entity“), it has not done so here.
307 S.W.3d at 308 (emphasis added). Thus, stated another way, the legislature has expressly declared that statutory prerequisites to filing suit are jurisdictional in cases relating to governmental entities.3 See also Little v. Tex. Bd. of Law Exam‘rs, 334 S.W.3d 860, 864 (Tex.App.-Austin 2011, no pet.) (“statutory prerequisites to suits against governmental entities are jurisdictional“).
Moreover, in Roccaforte v. Jefferson County, a post-USAA decision in which the supreme court considered whether a post-suit notice requirement was jurisdictional, the court held that section 311.034 did not apply because a post-suit requirement is not a “prerequisite to a suit.” 341 S.W.3d 919, 924 (Tex.2011); see
C. Application to Jurisdictional Facts
In its second issue, TCPA contends that Landsfeld filed his administrative comрlaint too late, depriving the trial court of jurisdiction. The parties do not dispute the jurisdictional facts, only their legal effect. Whether undisputed evidence of jurisdictional facts establishes a trial court‘s jurisdiction is a question of law reviewed de novo. Miranda, 133 S.W.3d at 226.
As noted above, section 21.202 requires a complaint to be filed “not later than the 180th day after the date the alleged unlawful employment рractice occurred.”
Landsfeld argues that the relevant date was March 31, 2005 (his last day of employment), 179 days before he filed his complaint. TCPA counters that the relevant date was March 1, 2005 (the date Landsfeld was told that if he did not immediately retire, he would be fired), 209 days before Landsfeld filed his complaint.
“The limitations period begins when the employee is informed of the allegedly discriminatory employment decision, not when that decision comes to fruition.” Specialty Retailers, Inc. v. DeMoranville, 933 S.W.2d 490, 493 (Tex. 1996) (stating that the 180-day period began when employee was told she would be fired if medical leave lasted over one year, not when she was actually fired); see also Villanueva, 331 S.W.3d at 134 (holding that the 180-day period began when employee was denied pay raise, not at time of paycheck); Alexander, 300 S.W.3d at 70 (concluding that the 180-day period began when employees learned that they would not be promoted, not when promotions took effect). Accordingly, we conclude that the 180-day limitations period began on March 1, 2005, when Landsfeld was given the option to retire or be terminated. Because Landsfeld filed his complaint twenty-nine days bеyond section 21.202‘s 180-day filing deadline, and because section 21.202‘s 180-day filing deadline is mandatory and jurisdictional, the trial court had no jurisdiction to hear Landsfeld‘s case. We sustain TCPA‘s second issue.
IV. Conclusion
Having sustained TCPA‘s dispositive issues,4 we vacate the trial court‘s judgment and dismiss the case.
DAUPHINOT, J. filed a dissenting opinion.
I must respectfully dissent from the majority opinion because I cannot agree with the holding that Landsfeld‘s claim is barred by the statute of limitations. The majority states that the 180-day statute of limitations began to run on March 1, 2005, the day TCPA Office Manager Jarrell Barnes told Landsfeld that he could retire or be fired on the following day for insubordination and the day that Landsfeld tendered a letter to TCPA stating that he would retire on March 31, 2005.1 If the limitations period did, indeed, begin to run on March 1, then the 180 days for filing notice with the EEOC expired before September 1, 2005, the effective date of the change in law that amended Section 311.034 of the government code to add the sentence, “Statutory prerequisites to a suit, including the provision of notice, are jurisdictional requirements in all suits against a governmental entity.”2 That is, the limitations period expired before September 1, 2005, the effective date of the amendment making statutory prerequisites, like the 180-day notice period, jurisdictional. Accordingly, under this scenario, the trial court correctly held that TCPA waived the limitations argument.
If, however, as I believe, the Texas Labor Code‘s 180-day statute of limitations begins to run, at the latest, on the day the last adverse action was taken by the employer, then under the facts of this case, it began to run on the date that Landsfeld actually resigned, March 31, 2005, not March 1, the date on which the employer threatened to fire him and on which he gave notice оf his future departure. On any date between March 1 and March 31, the parties could have resolved their disagreement without involving the courts, a measure that good policy should encourage. The latest adverse act taken by the employer was carrying through with the threat to accept Landsfeld‘s resignation as an alternative to firing him. Had Landsfeld withdrawn his resignation before actually walking away from his employment, and had the employer carried through on its threat to fire him at that point, it would be nonsensical to hold that the limitations period for giving notice began to run on the day that Landsfeld gave notice of his intent to resign. For these reasons, I would hold that Landsfeld timely filed his notice within 180 days of the last adverse action, which was his constructive discharge on March 31, the date the emplоyer carried through on its threat to fire or to allow Landsfeld‘s resignation.
Because I would uphold the trial court‘s judgment under either scenario, I respectfully dissent.