Pаt Free, Appellant v. Granite Publications, L.L.C., and Granite Publishing Partners, Inc., Appellees
NO. 03-17-00521-CV
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
July 25, 2018
HONORABLE BARBARA L. WALTHER, JUDGE PRESIDING
FROM THE DISTRICT COURT OF TOM GREEN COUNTY, 51ST JUDICIAL DISTRICT, NO. A160295C
OPINION
Pat Free appeals from the trial court‘s order granting the plea to the jurisdiction of Granite Publications, L.L.C., and Granite Publishing Partners, Inc. (jointly, Granite) and dismissing Free‘s claims for lack
BACKGROUND
Free was terminated from her employment with Granite on January 15, 2015. On September 24, 2015, she filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC).2 In May 2016, Free filed suit against Granite alleging age discrimination under the TCHRA. See
DISCUSSION
In two issues, Free argues that the trial court erred in dismissing her claims because the 180-day deadline for filing a charge of discrimination, while mandatory, is not jurisdictional and the trial court therefore did not lack subject matter jurisdiction.3 Some cоurts have expressed uncertainty about whether failure to exhaust administrative remedies under the TCHRA is still treated as a jurisdictional bar to civil suit. See, e.g., Alviar v. Macy‘s, Inc., No. 3:16-CV-1633-D, 2017 U.S. Dist. LEXIS 172796, at *6 n.5 (N.D. Tex. Oct. 19, 2017) (reviewing Texas cases that make it “unclear whether, under Texas law, exhaustion of remedies is still treated as ‘jurisdictional‘” and concluding that it is jurisdictional); Reid v. SSB Holdings, Inc., 506 S.W.3d 140, 143–47 (Tex. App.—Texarkana 2016, pet. denied) (reviewing cases and noting uncertainty but not
For decades prior to 2000, Texas courts followed the rule set out in Mingus v. Wadley that statutory prerequisites to suit are mаndatory and jurisdictional. See Prairie View A&M Univ. v. Chatha, 381 S.W.3d 500, 510 (Tex. 2012) (reviewing Texas Supreme Court precedent concerning statutory prerequisites and explaining Mingus); Mingus, 285 S.W. 1084, 1087 (Tex. 1926) (holding that strict compliance with statutory prerequisites was necessary to vest trial court with jurisdiction).
The Texas Supreme Court apрlied this rule to chapter 21 in 1991 when it held that both the 180-day deadline for filing a charge of discrimination, see
“Because Dubai invоlved private litigants, courts of appeals struggled with its application to cases against governmental defendants, citing the apparent dichotomy [between] Dubai‘s holding [and] the basic tenets of sovereign immunity and [the Supreme Court‘s] treatment of the doctrine in stаtutory causes of action.” Chatha, 381 S.W.3d at 511. In 2004, the Texas Supreme Court extended its holding in Dubai to governmental entities. See University of Tex. Sw. Med. Ctr. v. Loutzenhiser, 140 S.W.3d 351, 359, 364 (Tex. 2004), superseded by statute,
In 2010, in a case involving private litigants, the Texas Supreme Court again addressed the statute of limitations under chapter 21. See USAA, 307 S.W.3d 299. The USAA court reconsidered whether the two-year deadline for filing suit under section
In 2012, the Supreme Court revisited the 180-day deadline for filing a charge of discrimination under section 21.202(a). See Chatha, 381 S.W.3d 500. Because the case involved a governmental defendant, the court followed the directive of the Legislature in amended section 311.034 of the Government Code. Id. at 514–15. Thus, the court determined that section 21.202(a) is a mandatory statutory prerequisite and held that because Chatha had failed to file her complaint in accordance with section 21.202(a), her suit against the university was jurisdictionally barred. Id. Significantly, the court expressly did not decide whether section 21.202 itself, which contains the 180-day deadline for filing a complaint, is jurisdictional. See id. at 510 n.15. The dissent in Chatha pointed out that in USAA, the court had already overruled its decision in Schroeder that the two-year deadline for filing suit in chapter 21 is jurisdictional and urged that the court should “put the final nail in Schroeder‘s statute-of-limitations coffin” and overrule its holding in Schroeder that the 180-day deadline for filing the complaint is jurisdictional. Id. at 519 (Jefferson, J., dissenting). In response to the dissent, the majority emphasized that the defendant was a governmental entity and that its decision was governed by the Legislature‘s “straightforward mandate” in amended section 311.034 of the Government Code that statutory prerequisites are jurisdictional as to governmental entities. Id. at 514–16.
Since Chatha, this Court and other courts of appeal have followed its holding that thе 180-day deadline is a statutory prerequisite that is jurisdictional in cases involving defendants that are governmental entities. See, e.g., Alamo Cmty. Coll. Dist. v. Ryan, No. 04-17-00196-CV, 2017 Tex. App. LEXIS 10250, at *5, *11 (Tex. App.—San Antonio Nov. 1, 2017, no pet. h.) (mem. op.) (“Ryan‘s failure to file a claim with the TWC or EEOC within 180 days deprived the trial court of jurisdiction over Ryan‘s claims under the TCHRA.“); Texas A&M Univ. v. Starks, 500 S.W.3d 560, 568 (Tex. App.—Waco 2016, no pet.) (“The timely filing of a complaint [under the TCHRA] is mandatory, and when the defendant is a governmental entity, the failure to timely
This and other appellate courts also have—without elaboration and without exprеssly distinguishing between governmental and private defendants—applied the Schroeder rule that section 21.202(a)‘s 180-day deadline is jurisdictional in suits involving private litigants. See, e.g., Gladden-Green v. Freescale Semiconductor, Inc., No. 03-11-00468-CV, 2013 Tex. App. LEXIS 14168, at *1, *10, *14, *27 (Tex. App.—Austin Nov. 20, 2013, no pet.) (mem. op.) (stating that failure to timely file complaint deprives court оf subject matter jurisdiction, concluding that complaint was untimely, and affirming summary judgment in favor of private employer); ATI Enters., Inc. v. Din, 413 S.W.3d 247, 251, 254 (Tex. App.—Dallas 2013, no pet.) (concluding that there was no evidence that Din had claimed retaliation in his complaint against private employer and that trial court lacked jurisdiction over that claim); Floersheim v. Motiva Enters., LLC, No. 09-12-00229-CV, 2013 Tex. App. LEXIS 3961, at *1–2, *6, *14 (Tex. App.—Beaumont Mar. 28, 2013, no pet.) (mem. op.) (affirming summary judgment in favor of private employer on jurisdictional ground that employee did not timely file complaint); Williams-Pyro, Inc. v. Barbour, 408 S.W.3d 467, 470, 475–76 (Tex. App.—El Paso 2013, pet. denied) (citing rule that failure to еxhaust administrative remedies under TCHRA, beginning with filing of complaint, deprives court of subject matter jurisdiction and concluding that trial court did not lack jurisdiction where timely complaint was sufficient to put private employer on notice of claim for age discrimination); Dotson v. TPC Group, Inc., No. 01-14-00233-CV, 2015 Tex. App. LEXIS 2385, at *12, 15 (Tex. App.—Houston [1st Dist.] Mar. 12, 2015, no pet.) (mem. op.) (stating generally that “[f]ailure to timely file an administrative complaint deprives Texas trial court of subject-matter jurisdiction” and holding that because Dotson filed complaint against private employеr more than 180 days after alleged retaliation, trial court lacked jurisdiction over that claim). But see Yeh, 483 S.W.3d at 113 (where trial court denied plea to jurisdiction and case proceeded to trial, framing issue on appeal of timeliness of complaint as defеnse to liability, rather than as jurisdictional bar, in light of “questions” raised by Chatha “about whether the failure to satisfy Chapter 21‘s administrative exhaustion requirement implicates trial court jurisdiction in a suit between private parties.“)
In this context, then, we return to Free‘s arguments. Free‘s briefing reviews the Texas Supreme Court‘s rulings relevant to this issue, including those in Mingus, Schroeder, USAA, Dubai, and Chatha. She also cites Zipes v. Trans World Airlines, Inc., in which the U.S. Supreme Court held that filing a timely charge of discrimination under Title VII with the EEOC is not a jurisdictional prerequisite to suit. See 455 U.S. 385, 393 (1982). Free argues that while compliance with chapter 21‘s 180-day deadline was not before the court in USAA, the logic and case law the Texas Supreme Court used to overrule Schroeder as to the jurisdictional nature of the two-year deadline for filing suit apply equally to the jurisdictional nature of the 180-day deadline. Free urges that this Court follow the reasoning in Chief Justice Jefferson‘s dissent in Chatha and extend the reasoning in USAA to the 180-day deadline for filing an administrative complaint, effectively overruling and “put[ting] the final nail in Schroeder‘s statute-of-limitations coffin.” See Chatha, 381 S.W.3d at 519.
In short, Free asks us to do what the Texas Supreme Court has declined to do. See Chatha, 381 S.W.3d at 500 n.15. Because this case does not involve a governmental defendаnt, the Supreme Court‘s holding in Chatha is not determinative. See id. at 514–15. In cases involving private litigants, the Texas Supreme Court‘s current directive on this issue is contained in Schroeder, 813 S.W.2d at 486, and cases following its holding, see, e.g., Sanchez, 924 S.W.2d at 929 n.3; Specialty Retailers, 933 S.W.2d at 492. Perhaps, as Chief Justice Jefferson predicted in his Chatha dissent, some day soon a case will squarely present to the Texas Supreme Court a request to apply the Schroeder language to characterize the 180-day deadline as jurisdictional, and perhaps the court will decline to do so. See Chatha, 381 S.W.3d at 522 (Jefferson, J., dissenting). Unless and until that occurs, absent a clear holding from the Texas Supreme Court departing from the view stated in Schroeder, or a statutory directive from the Legislature, we are bound by existing precedent. See Lubbock Cty. v. Trammel‘s Lubbock Bail Bonds, 80 S.W.3d 580, 585 (Tex. 2002) (“It is not the function of a court of appeals to abrogate or modify established precedent. That function lies solely with [the Texas Supreme] Court.” (citations omitted)); City of New Braunfels v. Stop the Ordinances Please, 520 S.W.3d 208, 224 (Tex. App.—Austin 2017, pet. filed) (“‘[A]s an intermediate appellate court, wе are not free to mold Texas law as we see fit but must instead follow the precedents of the Texas Supreme Court unless and until the high court overrules them or the Texas Legislature supersedes them by statute.‘” (quoting Petco Animal Supplies, Inc. v. Schuster, 144 S.W.3d 554, 565 (Tex. App.—Austin 2004, no pet.))). For now, we are compelled to hold that the district сourt lacked subject matter jurisdiction over Free‘s claims. See Stop the Ordinances, 520 S.W.3d at 224; But cf. Chatha, 381 S.W.3d at 518 (Jefferson, J., dissenting) (observing that failure to comply with statutory requisite generally goes to right to maintain suit and whether plaintiff is entitled to seek relief, as opposed to jurisdiction of court to order relief requested) (quoting Dubai, 12 S.W.3d at 76–77). We therefore conclude that the trial court did not err in granting Granite‘s plea to the jurisdiction. We overrule Free‘s issues.
CONCLUSION
Having overruled Free‘s issues, we affirm the trial court‘s order granting Granite‘s plea to the jurisdiction.
Melissa Goodwin, Justice
Before Chief Justice Rose, Justices Pemberton and Goodwin
Affirmed
Filed: July 25, 2018