*1 OF PUBLIC DEPARTMENT TEXAS
SAFETY, Appellant/Cross-Appellants, Billy Davis, Alexander, Jo-
Alan W. Dillard, Duran, Randy Ruben
seph Garza,
Kenny Foster, Grego- Maria G. Bobby
ry Haire, Harper, Eduardo Jim- Land, Danny Lewis,
enez, Dennis D. Lucas, Lord, James S. D.
William Ralls,
Gary McCully, Robert E. Jer- P.
ry Schwab ALEXANDER, Billy Davis, Jo-
Alan W. Randy Dillard, Duran,
seph Ruben Foster,
Kenny Garza, Grego- Maria G. Bobby
ry Haire, Harper, Eduardo Jim- Land, Danny Lewis,
enez, D. Dennis Lucas, Lord, James
William D. S. McCully, Ralls,
Gary P. Robert E. Jer- Schwab,
ry Appellees/Cross-Appellee, Safety. Department of Public
No. 03-05-00297-CV. Texas, Appeals
Court
Austin. 22, 2009.
Oct. *5 Naylor, Attorney
Richard D. Assistant General, Austin, TX, Appellant. for Jr., Meanwhile, Christopher L. interlocutory Jack B. Krona TDPS’s appeal Kinser, LLP, Dallas, TX, Barnes, regarding Pezzulli the denial of plea its to the Appellees. jurisdiction was still pending for before this In April
court. we dismissed the PATTERSON, interlocutory appeal as but moot noted Before Justices that TDPS could raise relating issues PURYEAR and WALDROP.
the denial of jurisdiction its appeal an from the final judgment. See OPINION Dep’t Alexander, Texas Pub. Safety v. No. PURYEAR, (Tex.App.-Austin 03-04-00439-CV DAVID Justice. 14, 2005), April http://www.3 available at Alexander, Sixteen W. —Alan rdcoa.courts.sta te.tx.us/opinions/Opinion. Dillard, Davis, Billy Joseph Randy Ruben asp?OpinionID=13648. May Foster, Duran, Garza, Kenny Maria G. appealed TDPS from the trial court’s final Haire, Gregory Bobby Eduardo Harper, judgment, we transferred docu Jimenez, Land, Lewis, Danny D. Dennis ments and from records the interlocutory Lord, Lucas, Gary D. James S. P. William appeal appeal from final judg Ralls, McCully, and Jerry Robert E. ment. we Because conclude trial (“the plaintiffs”) Schwab —sued subject-matter lacked (TDPS), Department Safety Public claims, over the plaintiffs’ we vacate the bringing injunc- declaratory trial judgment court’s final dismiss *6 relief, tive see Tex. Civ. Prac. & Rem.Code subject-matter plaintiffs’ suit for want of (West 2008), §§ Ann. 37.001-.011 and jurisdiction. claims under the Texas Commission on (TCHRA), Act see Rights Human Tex. BACKGROUND (West 21.051, §§ Lab.Code 21.055 Ann.
2006). plaintiffs’ The claims were based In August TDPS announced the promotion process on November 2001 in opening captain positions eleven in the plaintiffs promoted. which none of the positions was narcotics service. The became trial, Before the case went to TDPS filed a major available as a result of a restructur- jurisdiction, ing to the which the trial the narcotics service on based appealed ruling governor’s court denied. TDPS the mandate from the office. To in interlocutory appeal to this court an and apply promotion, applicants for had to un- stay pending dergo filed motion for of trial a written and oral exam. After appeal. applicants exam, The trial court denied motion completed the written proceeded jury top and to trial. The found in with thirty-three those were scores gender-discrimina- favor of Garza on her to for appear called before an interviews tion claim and Garza and Ralls on their examining oral board in 2001. November jury plaintiffs retaliation claims. The also found among thirty-three The were promotion that TDPS failed conduct its candidates to appear called before the process people a manner consistent with its The the highest board. eleven policies procedures. judg- and In a final total scores from combination of the ment, the trial court they ordered Garza scores received on the written and on and Ralls recover their claims and that oral exams then promoted were plaintiffs attorneys’ all the recover open positions. fees. eleven captain TDPS an- granted The trial also declaratory court nounced the of the promotion pro- results injunctive and relief. cess at the end November None TDPS plea. appealed court among promot- denied were those plaintiffs stay filed a motion ruling court’s and for
ed. The trial court de- pending appeal. trial were announced promotions After motion, proceeded and the case nied revealed, scores oral-exam trial, During plain- jury. trial before a suspect that the eleven plaintiffs began any introduce further docu- tiffs did not already had been chosen people promoted mentary regarding the timeliness evidence examining board it con- the oral before However, their some of complaints. exams and that the board ducted the oral Haire, Lord, Garza, Lu- plaintiffs Foster,— the oral-exam to se- process had “rigged” cas, de- varying Ralls—testified pre-cho- of the eleven promotion cure the their complaints. grees about August plain- applicants. sen case, rested plaintiffs After their TDPS, court against tiffs suit in state filed a directed on TDPS moved for verdict injunctive declaratory and relief.1 seeking including repetition of its points, several Later, plaintiffs in December plaintiffs failed allegation earlier court in petition filed an amended state they timely filed establish claims for plaintiffs which all the asserted complaints of discrimination. The trial relief, injunctive declaratory and jury motion. The found court denied the Haire, Garza, and Lewis asserted claims gender in favor on her discrimi- of Garza under the TCHRA—Garza discrimination on their nation claim and Garza Ralls race, Haire gender, based on based jury also found claims. retaliation All of age. Lewis based on its promotion- failed to conduct TDPS of retaliation under the brought claims process al in a manner consistent with its TCHRA, alleging that refused to TDPS Before the trial policies procedures. promote them after the November 2001 judgment, its final TDPS entered promotions charges of because judgment filed a motion notwithstand- discrimination. verdict, alleging among once more *7 In TDPS filed a to the plea June other that Garza and Ralls failed to things jurisdiction, among things arguing they timely other establish that charges did not file their The plaintiffs the of discrimination. tidal court complaints denied of discrimination. The trial the motion. Ralls, Lord, Lucas, McCully, Schwab. plaintiffs
1. The also filed suit in federal court and against TDPS officials in their individ- prejudice several The with court also dismissed bringing capacities, ual under 42 claims plaintiffs' equal-protection due-process and January plain- § In U.S.C. upon a claim which claims for failure to state petition their state-court to add tiffs amended granted. agree- relief could be Based on an in claims of discrimination and retaliation parties, ment the court further between law, state and includ- violation of both federal VII, ADEA, prejudice the Title dismissed with TCHRA, ing the the Texas Blower's Whistle Garza, Haire, § and claims of and Lewis 1983 Act, VII, and the ADEA. Title TDPS removed plaintiffs’ and TCHRA remanded the same court, suit to federal where the suit state claims court. The court also dis- to state pending with the was consolidated federal plaintiffs' prejudice the federal missed with summary action. TDPS filed a motion for retaliation and re- discrimination and claims granted judgment, part the court which in plaintiffs’ re- manded to state court state part. and in denied Consistent with declaratory claims for taliation claims and summary-judgment ruling, court’s court injunctive surviving The fed- and relief. prejudice brought all dismissed § eral 1983 claims of Foster claims were under the Texas Whistle Act and the Blower’s Harper. The record does not reflect Alexander, Dillard, Davis, claims of 1983 surviving what federal claims. became of Garza, Haire, Land, Lewis, Duran, Jimenez,
69
In the trial
final judgment,
court’s
for lawsuits in which the state
court ordered that Garza and Ralls recover
or certain governmental units have been
pay, compensatory damages,
back
pre-
sued unless the state consents to suit.
interest,
judgment
and ordered TDPS to
Miranda,
Texas Parks &
Dep’t v.
Wildlife
promote Garza and Ralls to the first two
(Tex.2004).
133 S.W.3d
captain positions that became available in
provides
TCHRA
a limited waiver of sov
the narcotics service. The court also is-
ereign immunity when a governmental unit
permanent
injunction,
sued a
enjoining has committed employment discrimination
discriminating
promotion
TDPS from
in its
race, color,
on the basis of
disability, reli
processes on
gender
the basis of
or retal-
sex,
gion,
origin,
age,
national
or when a
iating against people who exercised their
governmental entity has retaliated or dis
rights or engaged
protected
activities as
against
criminated
a person who engaged
addition,
defined
In
TCHRA.
protected
in certain
activities. See Tex.
required by
stated that TDPS was
21.002(8)(D), 21.051,
§§
Lab.Code Ann.
law to follow
policies
proce-
its written
(West 2006);
21.254
Mission Consol. In
candidates,
dures for selecting
it
Garcia,
dep.
Sch. Dist. v.
253 S.W.3d
failed to follow the law and
policies
its
(Tex.2008);
Dep’t
Criminal
regarding the
promotion process,
Cooke,
(Tex.
Justice v.
intentionally
that senior officials
circum-
App.-Austin
no pet.). Sovereign im
vented the
manipulated
pro-
law and
munity from suit defeats a trial court’s
to promote
pre-selected
cess
eleven
candi-
subject-matter jurisdiction and is therefore
dates. The court then issued a declaration
properly
plea
asserted in a
jurisdict
promotion process
was not
Miranda,
ion.2
(2) so, if whether the court therefore also DISCUSSION jurisdiction plaintiffs’ loses over the declar- Texas, In sovereign immunity atory-judgment claim.3 We address each deprives a trial of subject-matter issue in turn. Bd., challenge 440,
2. A subject-mat to the trial court's Texas Air Control (Tex. 1993). 852 S.W.2d 446 jurisdiction may ter be raised for the first appeal. time on See Texas Ass'n Bus. v. regarding In 3. its brief the denial of its to jurisdiction, argues TDPS also 70 promotions of the on No- were informed of Com-
TCHRA Claims —Timeliness 2001, 30, period the limitations plaints vember Thus, on that date. See id. began to run a claim of em bring In order to file their appellees required were under discrimination ployment no later than charges of discrimination sworn, TCHRA, file a writ plaintiffs must 29, 2002. May days with TCHR within complaint ten act. See Tex. alleged discriminatory Complaint Significance of the A. (West §§ Ann. 21.201-.202 Lab.Code complaint Because an administrative 2006). timely filing of an administra of the serves to establish mandatory jurisdic complaint tive is a court, complaint signifi- itself carries filing Specialty suit. prerequisite tional statutory meet re- cance and must several DeMoranville, Retailers, v. Inc. quirements. In order for document (Tex.1996); Texas Parks S.W.2d proper complaint of discrimi- constitute a Dearing, v. Dept. & must; Wildlife (1) (2) nation, writing; it be in be pet. den (Tex.App.-Austin (3) oath; state that an unlaw- made under ied).4 committed; practice ful was employment (4) on which the com- contain facts period filing The time for a com date, based, including place, plaint is to run when the discriminato plaint begins alleged of the unlawful and circumstances occur, ry consequences not when the acts (5) include facts employment practice; and painful. Special of the become most acts identify to enable sufficient TCHR Retailers, In the ty 933 S.W.2d at respondent. See Tex. Lab.Code Ann. discriminatory alleged employ case of an decision, period be ment the limitations § 21.201.
gins employee is informed to run when case Supreme A recent U.S. Court decision, of the not when the decision highlight importance further serves to comes to fruition. Id. at 493. of the contents of an administrative com case, Ex plaint of discrimination. See Federal
In this the record shows Holowecki, 389, 128 press Corp. on No 552 U.S. TDPS distributed a communication (2008). 1157-60, 170 30, 2001, announcing the names of L.Ed.2d 10 vember S.Ct. Holowecki, pro Supreme the U.S. Court employees the eleven chosen age of unlawful dis complaint took effect on held that a promotions motion. The Age Discrimination appellees 2001. Because crimination under December (1) complaint with TCHR within required pro- and did not to: file the were act; evidentiary (2) support on days alleged discriminatory vide some amount of Be- each element of their retaliation claims. days allow TCHR 180 to dismiss or resolve plaintiffs’ cause conclude that the suit; we (3) complaint before file time-barred, are we need address the evi- years later than suit in district court no two dentiary argument. after the is filed TCHR. See *9 21.201-.202, 21.208, §§ Tex. Lab.Code Ann. filing plaintiffs' 4. of their com- The plea jurisdiction Because in its to the 21.256. plaints only requirements they of the is one challenges only appellate briefs TDPS the satisfy required were to in order to exhaust filing requirement of the first timeliness —the bringing their administrative remedies before plaintiffs' complaints of discrimina- of the employment-discrimination suit in an case. only regard tion—we address that issue with (West §§ See Tex. 21.201-262 Lab.Code.Ann. plaintiffs' of their adminis- to the exhaustion Works, Inc., 2006); Schroeder v. Texas Iron trative remedies. 483, (Tex.1991). 813 S.W.2d 485-86 To ex- remedies, they haust their administrative had
71
plea
jurisdiction
contain
A
Employment
in
Act must
certain
to the
often
(1)
information,
may
solely
be determined
from
specified
including
plead
the
the
address,
Blue,
name,
ings. See Bland
Sch. Dist.
Indep.
number of
v.
telephone
(Tex.2000).
547,
(2)
34 S.W.3d
554-55
We
employee
employer;
the
and the
an
a
review such determination de novo. Mi
allegation
the
has been the
employee
randa,
However,
victim the of number of jurisdiction a the to the challenges employees who work at employee’s the facts, jurisdictional existence of we must (4) of a statement indi place employment; relevant consider evidence submitted employee cating sought the has not the parties necessary the when to resolve the any government agency assistance of re jurisdictional issues raised. Id. 227. at matter; (5) garding request the a for agency pro the to take remedial action to When, here, challenge as to the employee’s rights tect otherwise the of jurisdictional existence facts does employer between dispute settle the implicate the merits the case employee.5 the Id. are disputed, facts court must necessary findings make the fact to resolve a complaint Because must con jurisdictional issue. See id. at 226 information, plain tain certain specified (“Whether a subject district court has mat necessary tiffs failure establish court, ter is for question components complaint is failure to decide, jury, not a if even the determi statutory prerequisites filing meet the requires making nation factual findings, suit, in properly a failure resulting ex jurisdictional unless the issue is inextrica haust administrative remedies. See Tex. ease.”) bly bound to the merits of the addition, Lab.Code Ann. 21.201. In (quoting Hosp. Cameron v. Children’s in allegations factual included the com Ctr., (6th 1167, 131 Med. F.3d 1170 Cir. particular plaint importance are of be 1997) Tucker, (citing v. Williamson cause upon determine the basis (5th Cir.1981))). F.2d 412-13 Al plaintiff may Elgaghil which a sue. See though jurisdictional determination Coll., County Tarrant Junior S.W.3d practicable, should be made as soon as (Tex.App.-Fort pet. Worth trial court has to await discretion further denied) (stating that when suit un development the case. See id. at TCHRA, raise plaintiff “may der here, jurisdictional evidence specific employee’s made in issue ad plain which involves the timeliness complaint ‘any ministrative kind of discrimination, complaints tiffs’ does not discrimination like or related to the case, implicate the which merits of ”) charge’s allegations.’ (quoting Fine v. concern whether TDPS discriminated or (5th Corp., Chem. 995 F.2d GAF against plaintiffs. retaliated As previ Cir.1993)). indicated, ously challenge TDPS’s B. plaintiffs’ complaints Standard Review—Plea to the timeliness challenge Jurisdiction discrimination is a to the exis- Willrich, purposes 5. Because one of the of the TCHRA & Inst. v. Tumor (Tex.2000). Here, is to state law federal law correlate we cite Holowecki cases, employment-discrimination may we general principle itself interpreting look to law federal significance and must contain has certain *10 provisions. TCHRA’s See Tex. Lab.Code Ann. components. substantive (West 2006); § Hosp. 21.001 M.D. Anderson 72 complaints. See v. support proper facts Croucher jurisdictional
tence of jurisdiction. (Tex.1983) subject-matter Croucher, trial court’s 58 660 S.W.2d Retailers, 933 at S.W.2d Specialty legal who appellant that attacks (stating required to was therefore The trial court finding on issue on sufficiency of adverse based jurisdictional issue resolve the proof have which he did not burden own fact findings. facts or its undisputed appeal must that there demonstrate on is Where, Miranda, at 226. as 133 S.W.3d will support finding). no We evidence here, not findings court did issue the trial or legal-sufficiency “no evidence” sustain that trial fact, presume court we (1) the com- challenge if the record shows: disputes in favor of its all factual resolved fact; of a vital plete absence evidence Type American Culture determination. (2) that the court is barred the rules of Coleman, Collection, Inc. v. giving weight law or evidence from Thus, (Tex.2002). because the trial 806 fact; only prove offered to a vital evidence jurisdic- TDPS’s denied (3) prove that the evidence offered tion, that trial court made presume we (4) scintilla; no vital fact is more than finding plaintiffs timely a factual conclusively evidence establishes complaints. filed their of a vital fact. opposite City Keller any appeal, findings On fact (Tex.2005). Wilson, v. 168 810 S.W.3d issue, jurisdictional resolve the made to findings, implied may be chal including We review evidence lenged legal sufficiency. See BMC for light finding, crediting favorable to the Marchand, v. Belg., N.V. 83 Software if a favorable evidence reasonable fact- (Tex.2002). 789, 795 We review S.W.3d contrary and disregarding finder could evi any if evi the entire to determine record dence unless reasonable fact-finder could jurisdiction. Texas Ass’n supports dence not. at 807. The test Id. ultimate for Bd., Air Control Bus. sufficiency legal is whether the evidence (Tex.1993). Here, TDPS S.W.2d would enable fair-minded reasonable and legal sufficiency evi challenges finding people to make the under review. implied the trial court’s supporting dence Id. at 827. We cannot substitute our judg filed timely finding plaintiffs long ment that of the trier of fact as as complaints. the evidence falls within this zone of rea Legal-Sufficiency C. Standard disagreement. Id. at sonable 822. How challenge, ever, In this legal-sufficiency allows if the evidence one jurisdictional we specific issue must inference, may disregard we it. Id. plaintiffs any raised address is whether to prove When the evidence offered a vital filed, on they May or before evidence fact weak to do more is so as no than 29, 2002, complaint with an administrative create or suspicion a mere surmise of its requirements met all the list TCHRA that existence, the is no than evidence more ed in the labor code and section 21.201 of effect, and, in legal scintilla is no evidence. allegations set factual specific forth v. Ridgway, See Ford Motor Co. upon which later filed suit. See Tex. (Tex.2004). Thus, S.W.3d evi 21.201; Elgaghil, Ann. Lab.Code so as make slight any dence that is prevail at 142. TDPS to on its S.W.3d For legal no guess inference a is effect evi it there is challenge, must establish that no dence. Id. support evidence to trial court’s im Analysis
plied Legal-Sufficiency D. finding *11 TCHRA. See Tex. support plea juris requirement In of its to the the under diction, copy 21.201(e), TDPS submitted a of (g); Hennigan each Ann. Lab.Code Discrimination,” Co., Inc., plaintiffs “Charge v. I.P. Petroleum 371, 858 S.W.2d Equal the which was filed with TCHR and (Tex.1993); see also Texas Tech Univ. Employment Opportunity Commission v. Finley, 223 S.W.3d 510, 515 (Tex.App.- (EEOC) and then sent to TDPS’s Office 2006, Amarillo pet.) (charge no deemed by General Because Counsel EEOC. timely even though dated after deadline charges May all of the are dated after the letter, plaintiffs initial complaint because deadline, argued TDPS that the which requirements proper satisfied plaintiffs timely charges. did not file their deadline); complaint, filed before Stanley response, plaintiffs In sever submitted Stores, Chavana, Inc. v. 909 S.W.2d purporting al documents establish 559 (Tex.App.-Corpus Christi writ timely filing complaint, of a of which none denied) (charge dated after deadline copy any type complaint included timely deemed because related back to document filed before the deadline. On letter). plaintiff date sent initial complaint appeal, plaintiffs argue they that es However, only one of plaintiffs the sixteen timely filing charges tablished the of their provided copy questionnaire of an intake they they because showed that filed their in response plea jurisdic- to TDPS’s to the questionnaires intake deadline, before the tion, questionnaire and the does not con- they ques contend that their intake any tain indication that it was filed complaints tionnaires serve as initial deadline. The any record does not contain charges which the “finalized” discrimi by any other similar document filed nation are based and to which finalized plaintiffs other on or before the deadline.7 charges agree should relate back.6 We timely questionnaires filed intake can Because the record does not satisfy sometimes be used to the timeliness include direct plaintiffs evidence that L.P., Stanley, (Tex.App. 6. In addition to the other documents However, plaintiffs response denied). offered in pet. TDPS’s Waco the issue jurisdiction, they provided to the also a docu- considerably in Rice is different from the one Employment ment titled “How File an Dis- Rice, plaintiff here. In filed his Complaint,” explains crimination which how complaint discrimination with the TCHR and questionnaire eventually an intake becomes a right-to-sue the EEOC and received a letter complaint. finalized The document states from the EEOC but not from the TCHR. Id. employees seeking complaint to file a at 512. The filed a defendant no-evidence must call first or visit the TCHR office and summary judgment, asserting motion for request questionnaire. they an intake Once plaintiff required provide copy was complete questionnaire, the TCHR office right-to-sue his letter from the TCHR in order case, assigns investigator an who drafts prove that he exhausted his administrative perfected complaint based on what the em- right- Id. The remedies. court held that the ployees questionnaire. stated in the After the part to-sue letter itself was not of the exhaus investigator completes perfected com- Rather, requirement. tion Id. at 513. it was plaint, complaint employ- is mailed to the plaintiff’s right-to-sue entitlement to a letter ees, review, employees sign, and the must that exhausted his administrative remedies. so, they they notarize it. Once do must re- Here, plaintiffs’ Id. issue involves turn the to the TCHR office no complaints, right-to-sue initial not their let thirty days receiving later than after it. fact, parties ters. In neither of the in this right-to-sue case raises the issue of letters. support argument of their need Accordingly, we conclude that Rice is too produce copies question of their intake distinguishable support the prove in order to of their from this case to naires timeliness filings, plaintiffs’ position. cite to Rice Russell- *12 74 questionnaire plaintiffs following: an intake or sim fourteen offered
timely filed
deadline,
(1)
180-day
ilar document before the
they
a
of a memo
each wrote to
copy
circum
we must determine whether the
respective supervisors
before the
by
presented
plain
stantial evidence
29,
May
stating
they
2002 deadline
to establish the
legally
tiffs is
sufficient
process”
had “initiated the
or
complaint
questionnaires’ content and timeliness.
complaint
“initiated
discrimination”
by
may
proven
An ultimate fact
be
circum
TCHR;
(2)
with
an
from their
affidavit
evidence,
Russell,
v.
stantial
Russell
865 attorney stating that either he or a mem
(Tex.1993), but circum
S.W.2d
933
personally
ber
his staff had
contacted
stantial evidence must still consist of more
plaintiffs
each of the
and confirmed
than
scintilla
order
withstand
they
charge”
all filed “a
with TCHR on or
v.
legal-sufficiency challenge, Blount
Bor
(3)
30, 2002;
May
an
before
affidavit
dens,
(Tex.1995).
Inc.,
910
933
S.W.2d
stating
from Plaintiff Ralls
that he filed a
may
A
infer an
fact-finder
ultimate
“charge of
on or
discrimination”
before
meager
fact from
circumstantial evidence
14, 2002,
May
and that he confirmed that
give
any
that could
rise to
number of
plaintiffs
all of the other
“followed the
inferences,
probable
none more
than an
procedure”
same
he did.
Oaks,
Edwards,
Hammerly
other.
Inc. v.
(Tex.1997).
958
392
S.W.2d
cases
presented by
While the evidence
evidence,
only slight
circumstantial
plaintiffs supports
the fourteen
an infer
something else must be found in the rec
ence that they
type
filed some
probability
ord to corroborate the
deadline,
document before the
none of the
fact’s existence or non-existence. Mara
provides
evidence
reasonable basis for
Pitzner,
Corp.
thon
inferring
plaintiffs timely
the fourteen
(Tex.2003).
may
A vital fact
not be estab
proper
filed a
document to which we could
lished by piling
upon
inference
inference.
perfected charge.
date back a later
Id. at 728.
21.201-.202;
§§
Tex.
Ann.
Lab.Code
Hen
begin
analysis
We
our
with the evidence
373;
nigan, 858
at
S.W.2d
Marathon
by fourteen of the plaintiffs,
offered
includ
729;
Corp.,
Elgaghil,
106 S.W.3d at
Alexander, Davis, Dillard, Duran,
Fos
at 142. For example,
S.W.3d
the memos
ter, Haire,
Jimenez, Land, Lewis,
Harper,
plaintiffs
super
the fourteen
to their
wrote
Lord, Lucas,
(“the
McCully, and Schwab
only
plaintiffs
visors are evidence
plaintiffs”).
previously,
fourteen
As stated
type
complain
took some
of action to
about
we review the entire record to
if
determine
discrimination,
they
not that
filed a docu
any
supports jurisdiction.
evidence
ment with
containing
TCHR
the elements
Bus.,
Ass’n
at
S.W.2d
446. To
proper complaint. Similarly,
of a
the affi
legal-sufficiency
survive a
challenge, the
plaintiffs’
davits
attorney
from
plaintiffs
required
were
present
more
Ralls are evidence
that the fourteen
than a
they timely
scintilla
evidence that
type
filed some
of document
questionnaire
filed an intake
or similar
deadline,
not that
a proper
document containing
necessary compo
Thus,
complaint.
the record does not con
proper
nents of a
complaint.
administrative
any
tain
connecting
timely
evidence
21.201-.202;
§§
See Tex. Lab.Code Ann.
Keller,
filing
of some document with the
810;
City
Elga
S.W.3d at
filing
questionnaire
of an intake
ghil,
with hold that the trial court we specific contained information about the juris plea erred in TDPS’s to the denying which conduct of she complained, and al- to the regard plain diction with fourteen though questionnaires intake can some- Keller, City tiffs’ claims.9 See TCHRA used satisfy times be to the timeliness 810; Co., 168 at Ford 135 S.W.3d Motor requirement, see Hennigan, 858 S.W.2d at S.W.3d at 601. 373, questionnaire Garza’s does not fall specified within the circumstances. remaining to the two
We turn now
the
Ralls,
Hennigan,
Texas
plaintiffs,
Supreme Court held
Garza and
and to the evi
that
complaint
“a verified
filed outside of
by
dence raised
each of them in response
180-day
to,
time limit
to
relates back
plea
jurisdiction.
TDPS’s
to
We
and
any
satisfies
begin
by
with the evidence
deficiencies in an
presented
unverified
Garza,
(1)
questionnaire filed within
180-day
which
a
her
lim-
copy
included:
it, therefore
questionnaire, signed by
satisfying
180-day juris-
intake
her
(2)
21, 2002;
requirement.”
dated on May
an affidavit dictional
Id. The court
stating
explained
a
charge
she “filed
of discrimi
its holding was based on
21.201(e)
code,11
nation
2001 section
concerning
[November
of the labor
which
Keller,
8.
presented,
proper complaint.
In addition to the other evidence
of a
City
See
802,
stating
(Tex.2005);
produced
Foster also
an affidavit
S.W.3d
Ford Motor Co.
598,
"charge
(Tex.2004).
he filed a
on or
Ridgway,
discrimination”
v.
135 S.W.3d
16,
However,
May
before
other
2002.
like the
evidence,
presented
only
Garza also
Foster’s affidavit is evidence
the same evidence as
(1)
plaintiffs:
copy
type
by
the fourteen
that he filed some
of document
of a memo
deadline,
22, 2002,
supervisor May
he filed
con-
she sent
her
not that
a document
to
stating
she
taining
proper
complaint
had
components of a
com-
“initiated
Thus,
plaint.
any-
process
alleging
affidavit
[TCHR]
[her]
does not add
concerns
thing
regarding
promotion
to the other evidence offered.
discrimination”
(2)
process;
stating
an affidavit from Ralls
considering
9. Even
the additional evidence
"charge
that he filed
of discrimination” on
trial,
14,
plaintiffs
2002,
introduced at
the fourteen
still
May
or before
that he
con-
any
timely
they
did not offer
evidence that
plaintiffs
firmed that all of the other
"fol-
did;
proper complaint.
filed a
(3)
Like the evidence
procedure”
lowed the same
he
presented
response
to
TDPS's
plaintiffs’ attorney
an affidavit from the
stat-
jurisdiction,
plaintiffs'
of the
some
fourteen
he
that either
or a member of his staff had
testimony
trial
addressed the
of the
personally
plaintiffs
timeliness
contacted each of the
type
complaint
of some
initial
docu-
charges
confirmed that
all
filed
ment,
testimony spoke
but none of
May
with TCHR before
2002. Because
initially
issue of
already
whether the
filed document
we have
determined that these three
components necessary
contained the
con-
plaintiffs
items are no evidence that the
filed a
proper complaint.
stitute a
Lab.
questionnaire
See Tex.
timely intake
or similar docu-
21.201;
Corp.
Express
Code Ann.
Federal
v.
containing
components
proper
ment
of a
Holowecki,
552 U.S.
128 S.Ct.
complaint,
analyze
again
we do not
the items
1157-60,
(2008); Elgaghil
that she
that
deadline,
complaint,
er
we conclude
the trial
180-day
she could receive the
plea
in denying
erred
TDPS’s
to the
Hennigccn,
of
and her late-filed
benefit
respect
to Garza’s
jurisdiction relate
to the date
charge would
back
she
claims.13
However,
TCHRA
questionnaire.
Garza’s
filed
shows
that it bears a
questionnaire
that
the final
We also conclude
indicating
signed
that it was
before
date
Ralls,
not
remaining plaintiff,
any
did
raise
deadline,
by
not
filed it
that Garza
proper
he
a
timely
that
com
evidence
on
stamp
There is no file
deadline.
response
plea
In
to TDPS’s
plaint.
document,
is
of any
nor
there a notation
(1) a Janu
jurisdiction,
presented:
Ralls
a
statement on the
typed
kind underneath
him to the
ary
captain
2002 memo from
page
reading
first
of
document
“Date
department
on
of his
written
behalf of
Thus,
by
there
Received
TCHR.”12
must
himself and several other unnamed lieu
else
something
be
in the record
create
tenants,
meeting with the
requesting a
completed
logical bridge
a
between the
in-
department
chief of
determine the
questionnaire
timely filing
take
of
procedure
the lieutenants to file
proper
Corp.,
See Marathon
questionnaire.
that
complaint regarding
a
November 2001
at 729.
(2)
May
promotion process;
provide
notifying
affidavit
not
letter
from
to TDPS
Garza’s
does
TCHR
necessary
Although
complaint,
that
had filed a
connection.
affi- TDPS
Ralls
may
perfect
that
able to
davit states
Garza
filed a
that TDPS
not be
discrimination,”
frame,
180-day
it does
within the
time
“charge
complaint
not
guided by
we are
felt
12. Because
federal-court
she informed TCHR
she
TDPS dis-
interpreting
employment-
decisions
federal
against
gender.
criminated
her based on her
statutes,
note
discrimination
we also
testify
did not
to what
She
as
constituted
questionnaire
request
intake
did not
Garza's
addition,
"complaint package."
she ex-
any
required by
remedial action
kind as
"charge
plained that she received a
sheet”
Specifical-
Holc/wecki.
stating that TCHR had referred Ralls’s Further, although May 14 letter complaint investigation; to the EEOC for from acknowledging TCHR receipt (4) a June 2002 letter from the complaint Ralls’s initial stated that Ralls’s acknowledging receipt EEOC to Ralls of perfected complaint would be amended charge.14 Ralls’s relate back to the date the initial complaint Although presented Ralls some evidence was received TCHR —a result consis- that he filed some com- type document tent with in Hennigan not did —Ralls plaining of discrimination before the dead- produce copy his initial line, any he did offer evidence to es- *15 questionnaire. intake We therefore have tablish that the document was an intake knowledge no of contents the docu- questionnaire or similar document contain- ment he to have or filed the date it necessary the elements a constitute filed, was and we charge cannot relate a proper complaint. Tex. Lab.Code back to a date and document absent from 21.201; Keller, §Ann. City 168 S.W.3d of the record. Accordingly, we conclude that 810; First, at Elgaghil, 45 at 142. S.W.3d Ralls offered no evidence to establish that January supervi- Ralls’s 2002 memo to his timely a proper complaint, he filed and we sor is planned evidence that Ralls hold that the trial court in denying erred complaint, file a not that he in fact plea jurisdiction TDPS’s to the regard with Second, one. 2002 from May letters to Ralls’s City TCHRA claims.15 See of TCHR and June 2002 letter from the Keller, 168 at S.W.3d only that timely EEOC are evidence Ralls E. Conclusion complaint type, filed a of some not that he filed an Because all of the questionnaire plaintiffs intake or similar failed to present any timely document and not that the con- evidence of the of filing document components tained the of a com- proper proper complaint, a trial erred 14. In regarding addition to the other evidence Ralls 15. Ralls also testified at trial offered, provided he also some of the same filing complaint. direct his On examina- plaintiffs, evidence as Garza tion, and the fourteen spoke he of his "notice of discrimina- (1) including: a supervisor memo to his indi- tion,” was as an which admitted exhibit at cating complaint he had "initiated the accompa- trial. The notice discrimination process alleging with concerns [TCHR] [his] perfected charge, nied Ralls's which was dat- regarding promotion discrimination'' cross-examination, ed after the deadline. On (2) process; plaintiffs' an affidavit from the he Ralls stated that contacted TCHR and re- stating attorney attorney that either the or a "packet” "questionnaire,” ceived a and which personally his member of staff had contacted back, completed he sent that TCHR plaintiffs each of the and confirmed that charge,” then sent he him "formal which charges May all filed their with TCHR before However, submitted. he still did not offer 30, 2002; (3) stating his own affidavit any regarding timely filing evidence aof "charge he filed of discrimination" on complaint generalized proper because his tes- 14, May or before 2002. Because we have timony pro- about the of the document already concluded that the same evidence of- contents, description he vided no of its plaintiffs fered Garza the fourteen is produce copy did not document. they timely no evidence that filed an intake questionnaire containing or similar document components proper complaint, of a we do re-weigh again not the evidence here.
78 if claratory judgment inappropriate is it to the
denying TDPS’s
or
plaintiffs’
nothing
injunctive
TCHRA would
add
regard
Keller,
Lites,
sought.
at
168 S.W.3d
other relief
See Boatman
City
claims. See
1998,
810;
no
Corp.,
(Tex.App.-Tyler
USA
v. Autonation
970 S.W.2d
Davis
(Tex.App.-Houston
judgment
[1st
pet.).
declaratory
S.W.3d
A
should
pet.) (stating that failure to
no
when there is no claim
be rendered
Dist.]
administrative
de
ambiguous
file
Id. A
statute is
invalid.
of subject-matter
trial courts
prives
may
declaratory judgment also
not be used
jurisdiction).
fees,
solely
attorneys’
vehicle
as a
to obtain
no
inappropriate
it
if it will serve
is
Declaratory Relief
Further,
purpose.
useful
Id.
UDJA
plaintiffs’
turn to the
declarato-
We now
deciding
“merely procedural
is
device for
sought
claim.
ry-judgment
jurisdiction.”
court’s
already
cases
within a
the Uniform Declara-
a declaration under
Office,
Land
Koch v. Texas Gen.
(UDJA) that the No-
tory Judgments Act
(Tex.App.-Austin
S.W.3d
not based
promotions were
vember 2001
filed)
Bus.,
(quoting Texas Ass’n
pet.
law and
on merit and thus violated state
444).
at
The UDJA does not
policy,
including section
departmental
liti-
jurisdiction, and a
extend a court’s
411.007(b)
the Texas Government Code.
*16
declaratory
for
gant’s request
relief does
See
Prac. & Rem.Code Ann.
Tex. Civ.
underlying
a
not alter
suit’s
nature.
Id.
(West 2008).
§§
The trial
37.001-.011
(citing Texas Natural Res. Conservation
plaintiffs’ request,
the
issu-
granted
IT-Davy,
v.
Comm’n
ing
tracking
language
of
a declaration
(Tex.2002)).
request.
Because we have concluded
jurisdiction
no
over
that the trial court had
Here, the declaration stated that
claims,
we must
plaintiffs’ TCHRA
were
promotions
the November 2001
not
now
the court’s decla-
determine whether
merit
thus
state law
based on
and
violated
may
independent
ration
stand
of those
including
and
section
departmental policy,
claims.
411.007(b) of
the Texas Government
issue,
reviewing
that a
In
we find
provides
The UDJA
Code.16
status,
City
Lopez,
Waco
party
rights,
legal
“whose
or other
S.W.3d
(Tex.2008)
by a
...
instructive and
that
may
relations are affected
statute
hold
trial
have
any question
have
of construc
court did not
over
determined
plaintiffs’
...
validity arising
declaratory-judgment
tion
under the
stat
claim
or
rights,
ute ...
a
because the TCHRA is the exclusive state
and obtain
declaration
status,
remedy
plain
legal
statutory
or other
relations.” Tex. Civ.
available for the
37.004(a).
Lopez,
§
tiffs’
In
plaintiff
Ann.
De-
claims.
Prac. & RermCode
411.007(b) provides:
department,
with the advice
consent of
Section
commission,
processes
shall establish
Appointment
promotion
of an officer or
consistently applied
employee
be based
merit deter-
be
and based on merit.
must
on
that
application
mined under commission rules
take
person
has an
on file
Each
who
applicant's age and
into consideration the
department
position
for a
in the
for which
condition,
physical
appropriate
if
applicant
an
an
must
take
examination
law, extent allowed under federal
that
given
written notice of
shall be
reasonable
applicant’s ex-
take into consideration the
place
those
time
examinations.
perience
promotions
and education. For
411.007(b) (West Supp.
Tex. Gov.Code Ann.
officers,
po-
than those
commissioned
other
2008).
411.0071, the
sitions covered under Section
analysis
claim
brought
applies
under the Whistle Blower
The same
this case
and compels the same
alleging that he was fired in retaliation
conclusion. Like
Act
Act,
Blower
Whistle
the UDJA is
city’s
grievance
for
EEO
specific to employment-related complaints.
complaining
age
officer
and race dis
See Tex.
Prac. &
Civ.
Rem.Code Ann.
crimination.
TDPS raised the issue motion for direct- jurisdiction, by Justice PATTERSON. Dissent *18 their plaintiffs verdict after the rested ed PATTERSON, Justice, P. JAN case, judgment notwith- and a motion dissenting. after trial. In addi- the verdict standing Following parties’ agreed remand tion, interlocutory appeal regard- TDPS’s court a two-and-a-half from federal denial its court, trial in the state district jury this week before pending remained Thus, majority sponte departs sua from were throughout trial. by parties appeal and am- raised had issues challenges well aware of the fact-finding own to vacate timely undertakes its copies of their ple time to obtain from declar- state and its subdivisions they their administrative shields whether exhausted TCHRA, seeking atory-judgment we conclude that declaration under the claims remedies Lopez proposition. implicitly such disavows statute but does not shield that state violated Here, the capacity). in state officials official declaratory-judgment claim plaintiffs' 18. The they plaintiffs’ claim barred because is immunity. by sovereign See is also barred brought against its TDPS and not suit Heinrich, City El Paso v. officials. (Tex.2009) immunity (holding that 372-73 411.007(b) (West judgment rendered in fa- Tex. Ann. and dismiss Gov’t Code 2009).4 employees of appellees, Supp. vor of Texas De- On the day, appellees same (DPS). Safety Public The partment brought also suit against individual DPS majority jury by supervisors discards the 2004 in verdict federal court concerning the appellees’ discrimination finding promotion and November 2001 process, alleg- brought claims, retaliation claims chapter ing, among under other claims under the Age 21 of the labor code were be- Employment time-barred Discrimination in Act of there no that appellees cause was evidence 1967 and Title Rights VII of the Act Civil “proper” complaints administrative of 1964.5 during applicable 180-day statutory Appellees filed an in petition amended See Tex. Lab.Code Ann. period. this action in January They contin- (West 2006).1 21.051, .055, §§ .202 relief, ued to seek declaratory they but majority also vacates and appel- dismisses sought also relief under both federal and lees’ brought under Uniform laws, state anti-discrimination including Declaratory Judgments Act2 finding TCHRA, ADEA, and Title VII. they were “in fact” discrimination or Appellees pleaded “have filed retaliation claims and that the TCHRA complaints” Equal Employ- remedies were exclusive. I would Because ment Opportunity Commission as well as juris- conclude that the district court had TCHR, letters,” right-to-sue “received appellees’ diction to hear TCHRA and de- all precedent “fulfilled conditions claims, claratory judgment respectfully I bringing this shortly action.” DPS there- dissent. after appellees’ removed state claims to Background Procedural court, federal and the federal court consol- idated the During pendency two suits. 20, 2002, August appellees brought On action, expressly consolidated DPS DPS, against seeking this suit relief under admitted its answer that all sixteen concerning the November 2001 UDJA appellees had filed administrative com- promotion process Captain posi- of eleven plaints letters, right-to-sue and received in the Appellees tions Narcotics Service.3 and DPS appellees did not contend that alleged that DPS law violated state be- had failed to exhaust their administrative process “rigged” cause the was prese- remedies. promoted lect the candidates that would be sought pro- a declaration that “the Following summary judgment hearing motions at issue this case ruling were in federal court that raised the merit, specter trials, based on in violation of multiple appeals Section 411.007(b) the government parties agreed appellees [of code].” would not *19 powers major 1. The of the Com- 3. duties DPS is divided into divisions. One of (“TCHR”) major Rights its divisions Criminal Law Enforce- on Human were is mission ment. Criminal Law Enforcement is subdi- transferred to the Texas Workforce Commis- services, vided into one of which is the Nar- Rights sion Civil in Division 2004. See Tex. cotics Service. (West 2006). § Lab.Code Ann. 21.0015 Be- appellees cause filed their administrative 411.007(b) 4. Section had not been amended TCHR, complaints appel- with the I refer to during pendency of this suit. For conven- their "TCHRA” lees’ claims as claims. ience, I to the cite current version of code. (2009) (ADEA); §§ 5. See 29 U.S.C. 621-634 2. Tex. Civ. Prac. & Rem.Code Ann. (Title (2009) §§ U.S.C. (West 2008). 2000e-2000e-17 §§ 37.001—.011 VII). mul- “specter in federal court raised the parallel federal claims and pursue certain claims remaining appeals TCHRA of common appellees’ tiple multiple trials and declaratory fact,” claims would be re- their Defen- and “Plaintiffs and issues court.6 In accordance to state manded agreed approved— dants the Court —and agreement, the federal parties’ with the voluntarily dismissing certain of Plaintiffs parallel federal claims dismissed understanding that federal claims with the appellees’ remaining and remanded state claims would be re- parallel state-law 2003. claims in December trial.” manded to state court for Their evidence included: parties’ agree- with the In accordance ment, appellees petition filed an amended (cid:127) from in transcripts hearings feder- 2003, deleting parallel their December 28, 2003, and Octo- al court on October claims.7 DPS filed an answer to federal 2003; ber February petition amended (cid:127) counsel, Ma- appellees’ affidavits from jurisdiction in June plea and a to the Ralls, Garza, Kenny ria Robert contending appellees’ TCHRA Foster; they because had failed were time-barred (cid:127) appellees’ respective “Interoffice to file their administrative com- Memorandum,” May dated between plaints.8 plea Attached to DPS’s were 22, 2002, advising they DPS that copies respective of EEOC’s notices to complaint process” had “initiated copies charges DPS that included of the concerning promotion with TCHR challenge discrimination. DPS did not process “Captain, Narcotics” appellees’ perfected form or content of “filing report, an external as indicated discrimination, charges of see Tex. Lab. above”; (West 2006), § Code Ann. 21.201 but (cid:127) Questionnaire” Garza’s “Intake charges were filed outside 21, 2002; May dated TCHR 180-day statutory deadline. See id. (cid:127) Assuming period May 21.202. the limitations a letter dated 2002 from 30, 2001, DPS, began to run November date notifying TCHR to DPS that promotion appellees were advised docu- TCHR had received “tendered decision, appellees required were to file ment that constitutes an initial com- by May charges their of discrimination plaint” per- from Ralls and that “the fected will be amended to relate back to the date the initial Appellees responded plea to DPS’s received”; complaint was argument and evi- (cid:127) dence. Among arguments, as- a “referral notice” from the TCHR 30, 2002, summary judgment ruling May serted Ralls dated that his summary judg- alleged 6. The court denied federal Lewis discrimination claims under the appel- ment to the discrimination as claims of TCHRA. Haire, Garza, granted lees it Lewis but as ap- discrimination claims of other jurisdiction, 8.In its DPS also appellee’s pellees. Each of claims for retalia- immunity sovereign contended that barred captains pro- the December 2001 tion after appellees' employ- TCHRAclaims because the summary motion also remained after the *20 support ees were unable to certain essential judgment ruling. and elements of retaliation discrimina- tion claims under the TCHRA: an adverse appellees alleged 7. Each of the retaliation (retaliation), (retaliation), action link causal declaratory under the TCHRA and (discrimination retaliation). pretext and and claims, Garza, Haire, judgment but and being the similarly was referred to Ralls Foster and averred that investigation; they EEOC for “filed a charge had of discrimination” 29, 2002, May on or before concerning the (cid:127) 20, 2002, August letter from dated promotion 30, 2001, announced November “acknowledg[ing] the EEOC to Ralls and that bearing document their re- receipt your charge” and requiring spective name signature and attached to date, sign, him to and return plea jurisdiction DPS’s was the per- charge [the “EEOC Form 5” of dis- charge fected that related back to their crimination]; original charge filing.10 Ralls also averred (cid:127) the federal court order dated Novem- that he was “tasked with communicating 7, 2003, in ber which the federal court ensuring and other plain- in granted part part and denied in tiffs did,” followed the same procedure I DPS’s summary judg- motion for and that he “confirmed” that each of the 9ment; and plaintiffs” “other 15 followed the same pro- (cid:127) federal court order dated Novem- he period cedure that did during May 25, 2003, remanding ber the state 22, 14 to 2002. court claims memorializing Appellees’ counsel averred concerning rulings agreements various the issue of exhaustion: parties. 3. connection with the [I]n issue of ex- she Garza averred that filed a “charge haustion, 30, on or May before 180-day discrimination” within the statuto- myself either or a member of my ry period: personally staff contacted each of clients to confirm that they my personal ap-
Based on knowledge, had followed procedure as de- 21, 2002,1 proximately May on or before in scribed affidavit Robert E. a charge filed of discrimination concern- they Ralls and that had actually filed promotion announced on Novem- charge cross-filed a with the 30, 2001, ber to become effective Decem- on or May [TCHR] before 2002. 15, 2001, is currently ber which at issue Each confirmed that had. this in lawsuit. Pursuant to policy, DPS 22, 2002, May I provided 4. Captain Additionally, this while case was Esquivel court, with a providing memorandum pending federal the district department with actual I notice that court raised the issue exhaustion sponte sua charge had filed a discrimination. during summary-judg- bearing The document my name and hearing. pointed ment I out that signature attached DPS’s expressly DPS had admitted in its a perfected charge is that all answer 16 Plaintiffs had filed pursuant to the Texas charges Administrative right-to-sue received 327.1(i), Section Code and relates I pointed back letters. also out that this my original filing. charge not an was issue raised DPS. I summary 9. federal Captain positions court denied DPS's examining ap- without merit, judgment plicants as to the federal based on violation discrimination of section Code; Garza, Haire, 411.007(b) claims of or- Texas Government Lewis and (2) (1) violations of REMAIN.” [TCHRA] dered "state cause of actions for declaratory judgment that Defendant DPS statutory authority during outside Appellees’ perfected charges acted its were dated 10. promotional procedure by filling January at issue between June *21 Also, plaintiffs eral court. the would gather to that information if offered prove agree- to ex- have to this required so not consented the Court haustion, any dispute ruled if to but the Court ment there was as in by factually DPS was acted reli- the admission exhaustion. Plaintiffs jurisdiction, to its DPS in suppoi't sufficient on admission of its ance object did to this rep- and DPS not answer. during hearing. this resentation response in their Appellees stated fact that DPS failed light In of the 5. all the copy not initial did have jurisdiction until after this to contest regional offices charges filed with TCHR over pending has been for two case open request issue an records and would finding and the district years, it the extent the district court deemed to it jurisdiction had over court necessary. Appellees sought leave to also claims, has our the TCHRA firm paral- their to add complaint amend open request an records act issued by were lel federal claims that dismissed TCHR, will do so if the to the but agreement to the extent the parties’ requires proof further ex- Court court their TCHRA claims district deemed exception haustion. With statutory federal untimely because the Garza, we do not charge [ ] have filing for an administrative period time possession copy in our initial See days. was 300 U.S.C. plain- charge by the other 16 2000e-5(e)(l) (2009). did DPS not ob- tiffs. evidence, appellees’ except to Fos- ject Furthermore, dispute there is no
6. affidavit, any not file contro- ter’s and did that each the 16 Plaintiffs com- hearing, verting evidence. After with the time limits for plied objections DPS’s district court overruled federal discrimination claim. plea to Foster’s affidavit and denied proceeding, for federal various rea- jurisdiction July 2004.11 including judicial economy, sons trial, Following a week plaintiff agreed each to waive his or two-and-a-half jury found that “DPS con- proceed only fail[ed] her federal claim and the TCHRA. 2001 pro- under As demonstrat- duct November/December by transcript, process in a manner consistent ed attached the motional proce- policies written ap- DPS[] federal was hesitant The jury this until it was reassured that dures.” also found favor of prove her had viable state-court Garza on discrimination retaliation claim, retaliation claims. The office did not Ralls on his AG’s dis- monetary them representation awarding damages.12 this pute fed- appealed opinions/Opinion. asp?OpinionlD 11. DPS the denial of its =13648. by interlocutory jurisdiction ap- accelerated opinion appellant This Court stated in the Court, interlocutory peal ap- to this but concerning the denial could raise issues of its peal pending remained at the time the district appeal plea to the in an from the judgment court rendered final on the merits judgment. final Court, February opinion 2005. This in an justice authored the same as the ma- also Haire, Lewis, jury against The Fos- 12. found here, jority opinion dismissed interlocu- ter, claims. and Lord on their TCHRA tory appeal April as moot in remaining appellees did not submit discrimi- Alexander, Dep’t Safety Pub. No. 03-04- questions jury. nation or retaliation 14, 2005), (Tex.App.-Apr. 9-CV available cross-appealed. and Lord have Foster http://www.3rdcoa.courts.state.tx.us/ at
85 is equita- support verdict and its There no evidence to an im- jury’s on the Based (i) finding if plied the record discloses: powers, the district court rendered ble (ii) complete fact; absence aof vital ordering that and Ralls judgment, Garza court by is barred rules of or of evi- DPS, law monetary against damages recover weight dence from giving evi- from discrimi- permanently enjoining DPS (iii) fact; dence prove offered vital conduct, natory retaliatory and declar- evidence offered to prove vital fact is no “on ing all sixteen Plaintiffs’ claims” that (iv) scintilla; more than a or the evidence policies failed to follow its written DPS conclusively establishes of opposite procedures selecting candidates in Keller, City vital fact. 168 S.W.3d at of law, including of violation state section 810. This Court reviews the evidence in 411.007(b) of the Texas Government Code. light most finding, favorable to the 411.007(b). § Tex. Gov’t Code Ann. See crediting favorable evidence if reasonable appellees district also court awarded could, jurors contrary and disregarding ev- attorney’s fees and costs. jurors idence unless reasonable could not. appeals judg- DPS district court’s reviewing Id. at 807. The in- court must Court, argue ment to this but does not dulge every reasonable inference that parties jurisdictional did not brief the implied would support finding. Id. at grounds sponte by majority. raised sua my analysis today I limit to the district Although parties juris- cannot confer jurisdiction appellees’ court’s to hear by agreement, diction parties can declaratory judgment claims. TCHRA agree necessary facts to the court’s 47.1,
See P. .5. Tex.R.App. Head, jurisdiction. v. See Kirk 137 Tex. (1941) 44, 726, 152 S.W.2d 728-29 TCHRA Claims (“[W]here potential jurisdiction depen- is Court, course, may This address the facts, dent on litigating the existence subject jurisdiction district court’s matter parties agree juris- ato cause can on the sponte. sua See Texas Bus. v. Ass’n of facts; dictional such agreed and from facts Bd., Air Control 852 S.W.2d can question court determine the (Tex.1993). agree 444-45 I with the ma- Moore, jurisdiction.”); v. French did jority the district court not have 1, 10 (Tex.App.-Houston Dist.] S.W.3d [1st jurisdiction appellees’ claims if TCHRA (“Because pet.) parties no support there was no evidence to the dis- facts, agreed this on certain case implied finding appellees trict court’s facts, upon based those the trial court timely filed their administrative com- jurisdiction, determined it had we conclude plaints. See Tex. Lab.Code Ann. at county law de- properly 21.202(a); Wilson, City Keller v. that it termined had over this (Tex.2005) (legal S.W.3d sufficien- lawsuit.”). alleged by Facts are both review); cy Specialty standard of Retail- parties in trial pleadings or admitted are ers, DeMoranville, Inc. v. as a do established matter law and (Tex.1996) (timely filing administrative require further v. proof. Shepherd jurisdictional complaint mandatory (Tex.1998) Ledford, 962 S.W.2d suit). I prerequisite disagree, admission, is (stipulation agreement, “an however, majority’s application with the judicial in a proceeding concession made respect- the no-evidence standard of review to the parties attorneys or their thereto”) (cita- matter supports evidence that the district court’s some incident omitted); tion implied finding. Hennigan I.P. Petroleum *23 (Tex.1993) they plaintiffs that filed that admit Co., Inc., S.W.2d charges the EEOC and TCHRA a formal waiver with (judicial is admission Pow- to letters.... Lighting right & and received sue also Houston proof); see Wharton, 101 S.W.3d City er Co. v. Well, prob- part Court: of the Federal Dist.] (Tex.App.-Houston [1st right I that to lem—and assume denied) filed, conclu- (providing stipulation pet. timely letters suit was sue and parties and es- addressed sive on issue [sic] contrary). to the claiming
topped from Yes, sir. Appellees’ Counsel: juris- to to DPS’s response right. Federal Court: All diction, submitted evidence appellees I think that’s Appellees’ Counsel: don’t proceeding, and DPS did federal objection. represent an I’d Appellees’ evidence. object to this that we filed. Court expressly DPS admit- averred that counsel counsel silent. DPS’s remained in court that all ted answer federal in its hearing, and subsequent At a counsel charges and re- had filed plaintiffs sixteen following also had the the federal court appel- and that letters right-to-sue ceived parties’ agree- exchange concerning the claims lees to dismiss their federal agreed parallel federal claims ment to dismiss an- in admission in its reliance on DPS’s remaining remand the claims and state Transcripts from federal court swer. summary judgment: after the federal court’s orders hearings and way may DPS’s Counsel: There be the federal court raised also that show remaining and that if the is parties, with the dis- issue of state — go state purely state law agreement to dismiss parties’ cussed the law— to and back state court and remand the parallel federal claims just move to the feder- dismiss claims, par- and to honor the agreed state their — tried, al claims that are due be then ties’ agreement. have, then, you plain- effect— and the federal court Appellees’ counsel cross-appeal are in posture tiffs following exchange concerning had the part summary judgment the Title and exhaustion of VII TCHRA they want- that dismissed claims that Haire, Lewis, and Garza at the claims for try. time that ed to And at same hearing any without summary judgment appeal the defendants the denial objection by DPS’s counsel: qualified immunity on the two 1983 ... Counsel: Your Honor Appellees’ it all at and Fifth Circuit considers concerns with our three Title raised any if part once decides there’s Haire, VIIs, Plaintiffs Lewis TCHRA not. they go it that want to let Garza, and the concern was ex- course, they’d giv- be Federal Court: Of point I record haustion. cannot ing up their Title claims. VII have they right I show that where Well, DPS’s what we Counsel: that’s letter, com- pleaded sue but we our discussed. plaint they had honor, Your Appellees’ [DPS’s the EEOC Counsel: TCHRA right spoken And in I have about counsel] received to sue letters. answer, says, subject is will- 107 of the it to what Court paragraph here, are prepared lack to do we defendants sufficient information Ti- prejudice as to the truth of the dismiss with federal to form beliefs VII, tle remand the balance to state agreements paragraph except of this court, declaratory judgment Appellees’ ac- Counsel: We would ask the tion, claims, rights and the state civil Court to prejudice dismiss with perfect him appeal VII, have his federal Title enter whatever or- issues, then, First Amendment we *24 der the Court is—finds appropriate only have one trial in this court respect with to the First Amendment respect, which—with all due I would claims, remand to state court a declar- to please ask the Court consider that atory judgment action. We will work just it makes more sense to have one out the logistics of that. We’ll handle permit trial on these issues here and the state court civil action civil just us to do that. And coun- [DPS’s rights and the declaratory] claims ac- I spoken it sel] have about and it tion in state court. And we’ll deal discretion, entirely is in the Court’s with the First Amendment af- issues agreement but we have a basic aas ter the spoken. Fifth Circuit has Federal plaintiff and defendant agreeable Court: doing Well, that, I don’t your that we’re feel Honor. too Federal Court: n Okay. [*] [*] then, Federal Court: And as soon as I
good forcing feel like I’m this to summary judgment see the rul- Well, degree. some I do that. And /all ings, then an agreed tender me then, secondly, I’m a little worried. /all that, on order we’ll proceed course, Of I know good have /all that basis. control, obviously, client but here clients, your you’re without consider- Finding the parties’ agreement further- ing waiving a Title VII ease.... The ing “the comity judi- interests both is, problem you there do have authori- economy,” cial the federal court ordered: you ty? you’ve got Do feel like au- It is therefore ORDERED that the fed- thority all to waive of those Title VII Garza, Haire, claims eral of Plaintiffs claims? Lewis, VII, for violations of Title Yes, Appellees’ Counsel: sir. We have ADEA, and the First Amendment spoken. (under 1983), § 42 U.S.C. are dismissed Okay. Federal Court: prejudice, by agreement with of the
parties. parallel The claims of Plaintiffs Garza, Lewis, Haire, and for violations add, Appellees’ Counsel: if I And could TCHRA, of the out arising of the your waiving Honor. We’re the Title Captain’s promotions, Narcotics VII, they’re essentially but redundant subsequent discrimination and retalia- We claims. don’t feel like we’re waiv- tion, remanded are 200th Judicial ing any substantive if rights we waive County, District Court of Travis proceed the Title VII and under the ... agreement parties. of the TCHRA because the standards are effectively the same and the remedies It is ORDERED that FURTHER are if comparable, exactly not almost federal claims of all Plaintiffs for retalia- the same. tion and discrimination that are current- Oh, see, I you’re going ly ripe Federal Corut: and that after the arise to take that into the Captain’s promotions, state court. All Narcotics are dis- right. sorry. prejudice, I I’m by agreement missed that. All missed with Well, right. what want me to you parties. parallel do claims for re- do? taliation violation of TCHRA that 29, 2002, May an administrative after before currently and that arise ripe are pro- Captain’s that met all the Narcotic’s TCHRA the 2001 motions, the 200th Ju- remanded to are of the listed section 21.201 requirements County of Travis Court dicial District specific set forth the factual labor code and parties. by agreement ... they later allegations upon which ORDERED that the It is FURTHER Tex. Ann. Lab.Code 21.201.14 suit.” See Plaintiffs to this lawsuit for of all core, majority its concludes At injunctive relief under declaratory and claims are time-barred appellees’ TCHRA remanded the 200th law are state to show that the appellees because failed *25 County of Travis Judicial District Court they that content of documentation by parties. of the agreement ... the allow- during to the TCHR submitted finding, its no-evidence reaching compo- “the 180-day period contained able appellees’ evidence fails to credit majority complaint.” See id. proper nents of a proceeding, misap- concerning the federal was Appellees’ uncontroverted evidence City of review. See plying our standard timely they filed their administrative that Keller, at 810. Based on this 168 S.W.3d stated in their re- complaints. Appellees evidence, beyond cavil that clear it is had they memorandum that initi- spective jurisdictional fact agreed to the parties TCHR, complaint process ated charges their timely filed appellees that promotion process concerning Kirk, at 152 S.W.2d discrimination. a 33; “Captain, by “filing” report, Narcotics” 728-29; at 962 S.W.2d Shepherd, French, indicated above.” Ralls averred that 10.13 “as S.W.3d at 169 charge he “filed a of discrimination” time-
But,
concern-
even
the evidence
without
ly
appellees
the other
followed
and that
the ma-
proceeding,
the federal
did,
ap-
he
procedure
the same
that
factual determination
jority misstates the
had
pellees’
averred that he
con-
counsel
“whether the
framing it
be
filed,
appellee
each
that his or her
any
they
that
on or
firmed with
evidence
raised
majority
upon
Express
right-to-sue
sup
are
14. The
relies
Federal
13. The
letters
additional
389,
Holowecki,
Corporation v.
552 U.S.
128
timely
port
appellees
filed their adminis
that
1147,
(2008),
170
S.Ct.
L.Ed.2d 10
"for
City
Joya
complaints. See
La
v.
trative
general principle
complaint
that
itself
13-06-401-CV,
293019,
Ortiz, No.
2007 WL
significance and
contain
has
must
certain
(Tex.
*3,
Tex.App.
*9
LEXIS
at
at
agree
I
components.”
that
substantive
1, 2007,
pet.)
Feb.
no
App.-Corpus Christi
perfected complaint must contain certain
(mem.
("[T]he
op.)
fact that the Texas Work
disagree
substantive information but
that
letter,
right
Commission issued
to sue
force
perfected complaint can
relate back to
dismissing
complaint
as un
instead of
complaint
all
an initial
that contains
timely,
is additional evidence that
com
required information. See Tex. Lab.Code
filed.’’);
timely
plaint
Westbrook Water
was
(West
21.201(e), (0
2006).
§Ann.
The ma
Dist.,
03-04-00449-CV,
ValleyIndep. Sch.
No.
jority
Elgaghil v.
also miscites
Tarrant Coun
*3,
Tex.App.
WL
at
LEX
(Tex.
College,
ty
Junior
45 S.W.3d
5, 2006,
(Tex.App.-AustinMay
*10
IS
at
denied).
App.-Fort
pet.
Worth
Our sis
denied) (mem. op.) ("Although
pet.
an em
ter court addressed the limitations on
right
ployee
required to
is not
obtain
sue
brought
plaintiff's discrimination claims
in a
suit,
prior
employee
if
has
letter
to the "kind of
TCHRA suit
discrimination
one,
has
it evidences that
ex
received
she
charge’s allegations,”
or related to the
like
administrative remedies before
hausted her
appellees
that
al
does not contend
but DPS
TCHR.”);
also Tex. Lab.Code Ann.
see
that
lege a "kind
discrimination”
(West 2006) ("The
21.202(b)
§
commission
their
failed to raise in
administrative com
untimely complaint.’’).
plaints.
shall dismiss an
timely
preclude
had
the district
administrative
been
court from finding
undisputed
appel-
that
filed.
It was also
perfected
charges related back to
perfected charges
lees’
that were attached
the date
charges
and,
the initial
were filed
jurisdiction complied
DPS’s
therefore,
appellees
timely filed their
requirements
with the form and content
administrative complaints.
code,
section 21.201
labor
Most disturbing
majority’s
is the
finding
appellee
right-to-sue
each
had received
that there was no evidence that Garza or
Therefore,
letter
from
TCHR.
found,
district court could have
without Ralls—the two
appellees
recovered on
reviewing
appel-
the actual documentation
timely
TCHRA
filed an ad-
claims—
filed, that
initially
any
lees
omission or ministrative complaint.
argues
DPS
technical defect in the documentation did “thirteen
than Garza
[other
and Ralls]
prevent
properly
perfected
failed to create a fact
issue as to
from
back to
charges
relating
the date the
charges
discrimination,”
but that
21.201(e),
charges
initial
were filed. Id.
those thirteen did not recover on their
Keller,
(f)15;
also City
see
*26
TCHRA claims. DPS does not contend
(ver
822; Hennigan,
at
In its in- timely Keller, that a majority concedes at City 168 S.W.3d period. See may satisfy section questionnaire take 822; Stores, Stanley see also Inc. Cha and that Garza 21.202 the labor code vana, 554, (Tex.App.-Cor in re- questionnaire intake produced her (whether denied) pus writ Christi jurisdiction, DPS’s sponse to discrimination and when EEOC received nonetheless, finds, no evi- there was but complaint generally fact issue for fact-find support timeliness. Crucial dence to er). stamp” was the lack of “file majority evidence, majority simi- questionnaire prove intake As to Ralls’s on Garza’s Without a timely receipt by that, the TCHR. although there was some larly finds stamp ques- other notation on file complaining he' filed a document evidence tionnaire, majority concludes that 180-day peri- within the of discrimination bridge” “logical is no between there od, there was no evidence of its content to questionnaire and the intake But, “proper.” it Ralls show was questionnaire. But the intake of that charge of discrimi- averred that he filed 21, 2002, May is dated questionnaire timely, nation and the submitted evidence May Garza averred that or before “[o]n the letter from TCHR to DPS included charge I filed a of discrimination day the 180 May dated 2002—within concerning promotion announced on DPS that Ralls had “ten- period advising — Appellees’ November 2001.”17 counsel that constitutes an ini- dered document [a] charge” “initial also averred that *27 perfected that the com- complaint” tial and they possession that had in their was relate back to the date of his plaint would majority The does not address Garza’s. complaint. supports initial This letter and discounts counsel’s affidavit Garza’s that the document reasonable inference specifically not reference because she did Ralls filed constituted an initial “charge but the questionnaire the intake perfected complaint that to allowed his But, a reasonable infer- discrimination.” further filing relate back to its date and appellees’ that Garza and counsel ence is supports implied the district court’s find- referring question- were to her “intake Keller, they City naire” referred to her initial of timeliness.18 See when Further, correct, A. 17. DPS's counsel elicited follow- That’s sir. ing testimony from Garza on cross-examina- following elicited the testi- tion: DPS’s counsel Q. Nonetheless, mony from Ralls cross-examination: point spring in the at some you charges, charge of 2002 of dis- Q. ... have Like some of the other [TCHR], crimination with the correct? testified, you point it correct that at some is early May. A. That inwas contacted the [TCHR]? Q. Well, early May you let’s be clear. Yes, A. sir. [TCHR], right? contacted the Q. you got packet And some sort of from actually A. I went No sir. I submitted— them? picked up application, down there and Yes, sir, questionnaire. A. and a application filled out the and submitted it. Q. you right. All And filled that out and them, right? sent it back to Q. there, right, you All went down and on Yes, A. sir. they gave you packet that date materi- Q. they you charge? And then sent formal out, als, you right? which filled Yes, Yes, A. sir. A. sir. Q. Q. you And that? by doing you submitted pro- And that initiated the Yes, charge cess of with the A. sir. [TCHR]? Irrespective at 822. other consistent with policies DPS[ S.W.3d written ] timeliness, I appellees’ procedures.” evidence would jury’s Consistent with the legally suf- conclude evidence was finding, district court declared: support implied finding ficient to an that It is FURTHER DECLARED AD- Garza and Ralls filed their adminis- JUDGED on all sixteen Plaintiffs’ claims complaints support trative to district required by that DPS is law follow its jurisdiction court’s hear their TCHRA policies written and procedures for se- claims. See id. lecting candidates based on a fair and Declaratory Judgment Claims competitive process; the Depart- ment failed to follow law policy this majority holds district respect Captain’s pro- jurisdiction court over appel- did have process; motional and that senior offi- declaratory judgment lees’ claims because intentionally cials circumvented law this statutory is the exclusive rem- TCHRA manipulated process promote edy appellees’ available for claims. To pre-selected eleven candidates. Plain- holding, majority reach its relies on its are tiffs to a entitled declaration findings appellees of fact that failed Captain’s promotion process was timely file their complaints administrative not based on merit in violation of state declaratory judgment claims law and departmental including policy, were “in fact” employment discrimination 411.007(b) of the Texas Government requiring brought them to be under Code. satisfy requirements ignores majority again TCHRA. The DPS does not contend that the district parties’ arguments on as appeal, well as ap- was without to hear appellees’ pleaded declaratory claims for pellees’ declaratory judgment claims be- relief. “in cause were fact” TCHRA claims Appellees sought a declaration that the or that there no was evidence to support promotion process November 2001 violated the jury’s *28 finding DPS had violated departmental Instead, state law and policy, policies.19 includ- its DPS that concedes 411.007(b) government of section the there was evidence that DPS violated sec- code. See Tex. Gov’t Ann. general Code tion 07.26 of its manual that re- 411.007(b). jury quires The that that promotion found DPS each member board the to conduct independently “fail[ed] reach its decision. Similar- November/Decem- ber promotional process ly, 2001 in manner jurisdiction only DPS’s DPS, challenges standing, against 19. appellees' DPS which and not its officials. See Heinrich, subject jurisdiction, City is an element of matter El Paso v. 284 S.W.3d of (Tex.2009). prospective injunction concerning seek a Supreme 373 Because the Texas promotions only recently DPS's because four out of proper party six of Court clarified the sue, minimum, promotion the grant members on the board have at a appel- I would retired, argument by request an not addressed the lees’ to remand to substitute the cor majority. v. parties necessary. See Texas Ass'n Bus. Texas Air if Corp. rect Exxon v. See of Bd., Tidwell, (Tex. (Tex.1993) (re Control 852 S.W.2d 444-45 867 S.W.2d ma 1993) (standing subject ju nding justice element of matter the in cause in interests of risdiction). court); argues appeal light DPS also by on that of new standard announced appellees Fanning Fanning, should sued have DPS officials and v. 847 S.W.2d (Tex. 1993) (re directly curiam) not the (per (op. reh’g) DPS under UDJA. The ma on jority agrees, concluding appellees’ justice changed in de mand interests of law after judgment claratory by appeal are pending); claims also barred while was see also Tex. 43.3(b). sovereign immunity they brought R.App. because suit P. analogous in are not Lopez claims. Act challenged appellees’ TCHRA here. Further, judgment motion for not- its in verdict, argued DPS the
withstanding that the district conclude I would and retaliation appellees’ discrimination appellees’ declaratory jurisdiction of had “conceptually distinct” from claims were Pub. Dep’t judgment claims. of “rigging” pro- allegations (Tex. Moore, Safety process: Moore, motion pet.). no In this App.-Austin jurisdic held that the trial court had Court issue whether UDJA-related [T]he employee’s declaratory hear tion to members colluded promotion board statutory DPS outside its acted claim promotions is November 2001 rig high-ranking posi authority in four filling distinct from issue conceptually on examining applicants tions without in No- decision-makers whether the at The “crux” Id. 153-54. merits. subsequent promotions vember 2001 application of sec in Moore was issue by re- or were motivated discrimination 411.007(b) per to the advancement tion is, promotion pro- That if the taliation. through promotion sonnel within DPS with the relevant DPS complied cess Appellees at id. appointment. See declaratory judgment procedures, a similar declaration here. sought if the even decision- must be denied improperly were motivated. makers CONCLUSION if the Conversely, promotions were languish case to allowing After this retaliatory, discriminatory or the failure timely act in man- failing appeal procedure is irrelevant to DPS follow interlocutory ap- ner on the accelerated claims. [TCHRA] addressing majority avoids peal, the equates appellees’ declara- majority by parties by vacating raised issues with the tory claims Whistle- juris- dismissing claims on appellees’ City v. Lo- blower Act claims Waco rogue na- grounds. I lament the dictional (Tex.2008). But, pez, 259 S.W.3d majority opinion that further ture of case, alleged plaintiff only retalia- par- all delays justice long sought age tory discharge reporting and race appeal. strong in this face of ties City’s in violation of the pro- discrimination “rigging” promotion evidence 149-50, Id. at 156. In con- policy. cess, complaints particu- EEO clear and — trast, declaratory judgment appellees’ DPS’s liti- larly Garza’s and Ralls’s—and *29 depend strategy, on a dis- I am sure finding gation surprising claims do not it is appeal be deter- motivating parties or retaliation as that the not crimination DPS, recognized by presented by parties but factor—as mined on basis I conclude majority. employee’s Whistleblower themselves.20 Because would brief, sought appeal appellees “were unable to 20. In initial DPS for this this its judgment court’s Court to reverse district fact to a link between create a issue as causal or, judgment favor and render in its alterna- activity subsequent protected their tively, reply and remand. to reverse its inability promote.’’ supra note 16. brief, sought in- DPS reversal that, if further stated this Court remands DPS junction be vacated because district court stay,” ”[t]he denial of the for "erroneous authority permanent in- exceeded its in its would Act of action that be TCHR causes junction. Additionally, DPS contended gender for retrial would be the remanded by claims could be considered retaliation Garza, and four retal- discrimination claim jurisdictional grounds this raised Court on (appealed iation claims-Garza Ralls interlocutory appeal in the renewed that the district court had appellees’
hear declaratory TCHRA and claims,
judgment I respectfully dissent.21 JONES, Appellant,
Steven Deon Texas, Appellee.
The STATE of
No. 06-08-00181-CR. Texas, Appeals
Court of
Texarkana. Sept.
Submitted 2009.
Decided Oct. *30 DPS) (appealed by and Lord and agreement. Foster missed based upon DPS’s plaintiffs).” Brown, County Cameron v. (Tex.2002) (plaintiffs given op- should be appellees 21. Had failed to exhaust their ad- portunity jurisdictional to cure defects in remedies, they ministrative would have been pleadings). pleadings allowed allege to amend their parallel federal dis-