Texas Southern University v. Lisa Rodriguez ( 2011 )

Affirmed and Memorandum Opinion filed June 2, 2011.

In The

Fourteenth Court of Appeals

NO. 14-10-01079-CV

Texas Southern University, Appellant

v.

Lisa Rodriguez, Appellee

On Appeal from the 125th District Court

Harris County, Texas

Trial Court Cause No. 2009-40147

MEMORANDUM OPINION

            Appellant Texas Southern University (TSU) brings this interlocutory appeal from the trial court’s denial of its plea to the jurisdiction in appellee Lisa Rodriguez’s employment discrimination suit.[1] TSU asserts that Rodriguez did not exhaust her administrative remedies by timely filing her complaint with the Texas Workforce Commission Civil Rights Division (TWC), and she cannot maintain her claim under the Texas Whistleblower Act.  We affirm. 

Background

            In April 2006, Rodriguez began her employment with the TSU Department of Public Safety as a patrol officer.  Rodriguez alleges that her field training officer Lieutenant Preston Fontenot repeatedly sexually harassed her by making sexual innuendos and inappropriate remarks toward her, including comments on her physical attractiveness and questions regarding the type or color of her under garments, and by keeping a picture of her on his desk.

On September 14, 2007, Rodriguez filed a complaint with the TWC.  On the TWC charge form, Rodriguez marked the box indicating that her complaint was based on sex discrimination, marked the box indicating that it was a continuing action, and stated the earliest date of the discrimination was April 10, 2006, and the latest date of discrimination was July 17, 2007. In her TWC complaint, Rodriguez described the discrimination as follows:

I. On or about April 3, 2006, I began my employment with Texas Southern University as a Police Officer.  Beginning around April 10, 2006, my supervisor, Preston Fontenot, began sexually harassing me.  Mr. Fontenot would text me messages related to having sex with me, he would invite me out and he would ask me questions about my underwear.  Although I advised Mr. Fontenot that I was not interested in having a sexual relationship with him, he has continued to proposition me.  On or about September 14, 2007, I made both the Captain and the Chief aware of the sexually hostile environment Mr. Fontenot had created for me. 

II. Mr. Fontenot has a history of sexually harassing at least one other female officer.  Management has advised me that they would look into the current situation involving myself, but, to date they have not resolved the issue.

III. I believe I have been discriminated against based on my sex, female, in violation of Title II of the Civil Rights Act of 1964, as amended.

On June 25, 2009, Rodriguez filed her original petition against TSU and Fontenot, alleging sexual harassment, retaliation, and violations of the Texas Whistleblower Act.  On August 13, 2010, Rodriguez filed a third amended petition alleging that TSU retaliated against her by firing her in July 2010.  The trial court denied TSU’s plea to the jurisdiction.

Standard of Review

            Whether a court has jurisdiction is a question of law that is reviewed de novo.  City of Elsa v. Gonzalez, 325 S.W.3d 622, 625 (Tex. 2010) (per curiam).  A plea to the jurisdiction challenges the court’s subject matter jurisdiction.  City of Dallas v. Carbajal, 324 S.W.3d 537, 538 (Tex. 2010) (per curiam).  When a plea to the jurisdiction challenges the pleadings, we determine if the pleader alleged facts that affirmatively demonstrate the court’s jurisdiction to hear the case.  City of El Paso v. Heinrich, 284 S.W.3d 366, 378 (Tex. 2009).  We construe the pleadings liberally in favor of the plaintiff and look to the pleader’s intent.  State v. Holland, 221 S.W.3d 639, 643 (Tex. 2007).  If a plea to the jurisdiction challenges the existence of jurisdictional facts, we consider relevant evidence submitted by the parties when necessary to resolve the jurisdictional issues raised, as the trial court is required to do.  Univ. of Tex. at Austin v. Hayes, 327 S.W.3d 113, 116 (Tex. 2010) (per curiam).  If there is no question of fact as to the jurisdictional issue, the court must rule on plea to the jurisdiction as a matter of law.  Heinrich, 284 S.W.3d at 378.  If the evidence raises a fact question on jurisdiction, the trial court cannot grant the plea, and the trier-of-fact must resolve the issue.  Hayes, 327 S.W.3d at 116. 

Discrimination Claims

Sex Discrimination

In its first and third issues, TSU asserts that the trial court erred by denying its plea to the jurisdiction because Rodriguez did not timely file her discrimination charge with the TWC.  The Texas Labor Code makes it unlawful for an employer to discriminate against an employee with respect to compensation or the terms, conditions, or privileges of employment because of race, color, disability, religion, sex, or national origin.  Tex. Lab. Code Ann. § 21.051 (West 2006). Sexual harassment is a form of sex discrimination prohibited by the Labor Code. Hoffmann-La Roche Inc. v. Zeltwanger, 144 S.W.3d 438, 445 (Tex. 2004); Del Mar Coll. Dist. v. Vela, 218 S.W.3d 856, 860 (Tex. App.—Corpus Christi 2007, no pet.).  There are two general types of sexual harassment: quid pro quo and hostile work environment.  Waffle House, Inc. v. Williams, 313 S.W.3d 796, 804 (Tex. 2010).  Quid pro quo harassment occurs when employment benefits are conditioned on sexual favors, while a hostile work environment is the result of sexual harassment.  Hoffmann-La Roche Inc., 144 S.W.3d at 445 n.5.  Rodriguez’s claim of sexual harassment implicates a hostile work environment.  See Del Mar Coll. Dist., 218 S.W.3d at 860. 

            Pursuant to section 21.202, “[a] complaint under this subchapter must be filed not later than the 180th day after the date the alleged unlawful employment practice occurred.”  Tex. Lab. Code Ann. § 21.202(a) (West 2006).  This time requirement is mandatory and jurisdictional. Specialty Retailers, Inc. v. DeMoranville, 933 S.W.2d 490, 492 (Tex. 1996) (per curiam).  The failure to file timely a complaint with the commission deprives the court of subject matter jurisdiction.  Czerwinski v. Univ. of Tex. Health Sci. Ctr., 116 S.W.3d 119, 112 (Tex. App.—Houston [14th Dist.] 2002, pet. denied). 

            An exception to application of the 180-day limitations period is the continuing violation doctrine.  Santi v. Univ. of Tex. Health Sci. Ctr. at Houston, 312 S.W.3d 800, 804 (Tex. App.—Houston [1st Dist.] 2009, no pet.).  The continuing violation doctrine applies when an unlawful employment practice manifests itself over time, rather than as a series of discrete acts.  Id. at 804–05; Wal-Mart Stores, Inc. v. Davis, 979 S.W.2d 30, 41–42 (Tex. App.—Austin 1998, pet. denied).  The plaintiff must show an organized scheme leading to and including a present violation, so that it is the cumulative effect of the discriminatory practice, rather than any discrete occurrence, that gives rise to the cause of action.  Santi, 312 S.W.3d at 804–05; Davis v. Autonation USA Corp., 226 S.W.3d 487, 493 (Tex. App.—Houston [1st Dist.] 2006, no pet.).  

            Under the continuing violation doctrine, a plaintiff is relieved of establishing that all of the alleged discriminatory conduct occurred within the actionable period, if the plaintiff can show a series of related acts, one or more of which falls within the limitations period.  Pegram v. Honeywell, Inc., 361 F.3d 272, 279 (5th Cir. 2004); Wal-Mart Stores, Inc., 979 S.W.2d at 42.  “The end goal of the continuing violation theory is to ‘accommodate plaintiffs who can show that there has been a pattern or policy of discrimination continuing from outside the limitations period into the statutory limitations period, so that all of the discriminated acts committed as part of this pattern or policy can be considered timely.’”  Pegram, 361 F.3d at 279 (quoting Celestine v. Petroleos de Venezuella SA, 266 F.3d 343, 352 (5th Cir. 2001)).  “A charge alleging a hostile work environment claim . . . will not be time barred so long as all acts which constitute the claim are part of the same unlawful employment practice and at least one act falls within the time period.”  Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 122 (2002).  Discrete discriminatory acts such as termination, failure to promote, denial of transfer, or refusal to hire are not actionable if time barred, even when they are related to acts alleged in timely filed charges.  Id. at 113–114.  Each discriminatory act starts a new clock for filing charges alleging that act.  Id. at 113.  

            A lawsuit under the Act is limited to claims made in the charge or complaint filed with the Equal Employment Opportunity Commission or the TWC and factually related claims that can reasonably be expected to grow out of the commission’s investigation.  Santi, 312 S.W.3d at 804; Bartosh v. Sam Houston State Univ., 259 S.W.3d 317, 321 (Tex. App.—Texarkana 2008, pet. denied).  We construe a claimant’s charge of discrimination filed with the TWC with “utmost liberality”; however, the charge must contain an adequate factual basis so that it puts the employer on notice of the existence and nature of the charges.  Santi, 312 S.W.3d at 804; Bartosh, 259 S.W.3d at 321.  Therefore, “‘[t]he crucial element of a charge of discrimination is the factual statement contained’ in the administrative complaint.”  Bartosh, 259 S.W.3d at 321 (quoting Preston v. Tex. Dep’t of Family & Protective Servs., 222 F. App’x 353, 356 (5th Cir. 2007)). 

            Rodriguez kept a written record of Fontenot’s sexual harassment from April 10, 2006, through her six-week training period, which ended on May 17, 2006.  Rodriguez did not record any incidents of Fontenot’s harassment after the end of her training.  Relying on Rodriguez’s documentation of that six-week period only, TSU argues that all of the alleged sexual harassment occurred between April 10, 2006, and May 17, 2006.  TSU maintains that, because Rodriguez did not file her complaint until November 26, 2007, and Rodriguez was required to file her complaint with the TWC within 180 days of the incident, the TWC could only consider discrimination that took place on or after May 30, 2007. 

            Rodriguez, however, does not limit her allegations of discrimination on the TWC charge form to the six-week training period.  Instead, Rodriguez stated that the last day of the discrimination was July 17, 2007, indicated that it was a “Continuing Action,” and alleged that Fontentot “has continued to proposition me.”[2]  

            To avoid the continuing violation doctrine, TSU further contends that the alleged discrimination was a series of discrete events, including any discrimination that took place on July 17, 2007—an event which TSU avers that Rodriguez should have described in the TWC complaint.  As stated above, Rodriguez’s complaint of discrimination implicates a hostile work environment.  A claim of hostile work environment is a continuing violation.  Santi, 312 S.W.3d at 805.[3]  Therefore, Rodriguez’s allegations of hostile work environment fall within the continuing violation doctrine.  Because the sexual harassment manifested itself over a period of time and was not a series of discrete events, the continuing violation doctrine applies.  See id. at 804–05.  Rodriguez alleged in her TWC complaint that the last date of sex discrimination occurred on July 17, 2007.  This was 129 days prior to her filing her TWC complaint on November 26, 2007.  If one of the acts of discrimination falls within the 180-day deadline, the court may consider all of the acts that the plaintiffs allege are part of the hostile work environment claim even though some acts may have taken place outside the filing period.  See EEOC v. WC & M Enters., Inc., 496 F.3d 393, 397 (5th Cir. 2007); Wal-Mart Stores, Inc., 979 S.W.2d at 41. We conclude that Rodriguez timely filed her TWC complaint alleging sex discrimination.

Retaliation

            TSU argues that the court has jurisdiction to hear Rodriguez’s retaliation claims based on her filing a discrimination charge only if the retaliation grows out of an administrative claim that is properly before the court.  Therefore, according to TSU, because Rodriguez’s sex discrimination claim is untimely and must be dismissed, her retaliation claim must also be dismissed. 

            Under Section 21.055 of the Labor Code, it is unlawful for an employer to retaliate “against a person who, under this chapter: (1) opposes a discriminatory practice; (2) makes or files a charge; (3) files a complaint; or (4) testifies assists, or participates in any manner in an investigation, proceeding, or hearing.”  Tex. Lab. Code Ann. § 21.055 (West 2006).  Rodriguez alleges that TSU retaliated against her for filing the discrimination complaint by demoting her from a patrol position to a desk job, denying her requests to attend training classes, conducting a “sham” investigation against her, and terminating her employment. 

            As addressed above, Rodriguez timely filed her sex discrimination complaint with the TWC.  Although Rodriguez did not file a separate TWC charge alleging retaliation, it was not necessary for her do so because her retaliation claims “are factually related claims that could be expected to grow out the [TWC’s] investigation of the charge.”  Thomas v. Clayton Williams Energy, Inc., 2 S.W.3d 734, 738 (Tex. App.—Houston [14th Dist.] 1999, no pet.).  Rodriguez’s retaliation claims are properly before the court.  The trial court did not err in denying TSU’s plea to the jurisdiction as to Rodriguez’s sex discrimination and retaliation claims.  Accordingly, we overrule TSU’s first and third issues. 

Whistleblower Act Claims

            In its second issue, TSU contends that the trial court erred by not dismissing Rodriguez’s Whistleblower Act[4] claim because her exclusive remedy for retaliation is the Labor Code.  Rodriguez alleges that TSU took adverse personnel action against her because she, in good faith, reported TSU’s discriminatory and retaliatory actions.  See Tex. Gov’t Code Ann. § 554.002(a) (“A state or local governmental entity may not suspend or terminate the employment of, or take other adverse personnel action against, a public employee who in good faith reports a violation of law by the employing governmental entity or another public employee to an appropriate law enforcement authority.”). 

            Relying on the Texas Supreme Court’s opinion in City of Waco v. Lopez, TSU asserts that the Labor Code provides the exclusive statutory remedy for Rodriguez’s retaliation claim.  See 259 S.W.3d 147 (Tex. 2008).  In Lopez, the plaintiff sued the City under the Whistleblower Act, claiming that he was fired in retaliation for filing a grievance based on age and race discrimination with the City’s EEO officer pursuant to the City’s EEO policy.  Id. at 149–50.  The City filed a plea to the jurisdiction arguing that the Texas Commission on Human Rights Act (CHRA)[5] was the exclusive remedy for the plaintiff’s retaliatory discharge claim.  Id. at 150. 

            The Lopez court observed that, although the plaintiff never pleaded a CHRA claim, his internal grievance with the City complaining of age and race discrimination and his related retaliation claim “indisputably implicate[d] the CHRA’s anti-retaliation provision.”  Id. at 151.  The court explained that the Whistleblower Act provides a general remedy for retaliation based on the report of any violation of the law and is intended to encourage disclosure of governmental malfeasance and corruption, id. at 154, while the CHRA addresses the specific evil of discrimination and retaliation in the workplace. Id. at 153.  Thus, like the Whistleblower Act, the CHRA prohibits retaliation against employees, but the universe of conduct on which the retaliation must be premised is confined to employment discrimination.  Id. at 154.  After citing the different purposes and remedies of the two acts, the court held that “the CHRA provides the exclusive state statutory remedy for public employees alleging retaliation arising from activities protected under the CHRA . . . [and] that a public employee pursuing a state statutory remedy for retaliation arising from the employee’s opposition to conduct made unlawful under the CHRA may only recover if he satisfies the requirements of the CHRA.” Id. at 155. 

            The plaintiff’s retaliation claim fell within the CHRA, which provided his exclusive state statutory remedy.  Id. at 156.  The plaintiff, however, did not plead a cause of action under the CHRA, and he did not invoke the procedures to remedy the acts of retaliation and discrimination.  Id.  Therefore, the Lopez court held that, because the plaintiff failed to allege a claim for which the City waived governmental immunity, the trial court did not have jurisdiction over his claim.  Id.  

TSU’s reliance on Lopez in this plea to the jurisdiction case is misplaced.  In Lopez, the plaintiff never invoked the anti-discrimination provisions of the CHRA by filing an administrative charge of discrimination or retaliation but, instead, only sought to remedy the alleged retaliation under the Whistleblower Act.  Here, Rodriguez, unlike the plaintiff in Lopez, invoked the anti-discrimination provisions of the Labor Code by timely filing her sexual harassment discrimination claim with the TWC.  Therefore, in this case, whether the Labor Code provides Rodriguez’s sole statutory remedy for her retaliation claim is not the proper subject of a plea to the jurisdiction. 

Although the Federal Rules of Civil Procedure provide for a motion to dismiss for failure to state a claim upon which relief can be granted, no similar provision is included in the Texas Rules of Civil Procedure. Centennial Ins. Co. v. Commercial Union Ins. Cos., 803 S.W.2d 479, 483 (Tex. App.—Houston [14th Dist.] 1991, no writ).[6] Under the Texas Rules of Civil Procedure, the proper way for a defendant to urge that a plaintiff has failed to plead a cause of action is by special exceptions.  Texas-Ohio Gas, Inc. v. Mecom, 28 S.W.3d 129, 141 (Tex. App.—Texarkana 2000, no pet.); Centennial Ins. Co., 803 S.W.2d at 483. Only after the trial court sustains special exceptions, and a party has been given an opportunity to amend its pleadings, may a case be dismissed for failure to state a cause of action.  Centennial Ins. Co., 803 S.W.2d at 483. 

We hold that the trial court did not err when it denied TSU’s plea to the jurisdiction as to Rodriguez’s Whistleblower Act claim.  However, in so holding, we do not address whether Rodriguez can maintain her Whistleblower Act claim in addition to her section 21.055 retaliation claim.  Accordingly, we overrule TSU’s second issue.[7] 

Having overruled all of TSU’s issues, we affirm the judgment of the trial court.

                                                                        /s/        Sharon McCally

                                                                                    Justice

Panel consists of Justices Anderson, Seymore, and McCally.

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[1] See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(8) (West 2008) (providing for an interlocutory appeal from the trial court’s order granting or denying a governmental unit’s plea to the jurisdiction). 

[2] Emphasis added. 

[3] The Supreme Court explained the nature of hostile environment claims as follows:

Hostile environment claims are different in kind from discrete acts.  Their very nature involves repeated conduct. . . . The “unlawful employment practice” therefore cannot be said to occur on any particular day.  It occurs over a series of days or perhaps years and, in direct contrast to discrete acts, a single act of harassment may not be actionable on its own.

Nat’l R.R. Passenger Corp., 536 U.S. at 115 (citations omitted).

[4] See Tex. Gov’t Code Ann. §§ 554.001–.010 (West 2004). 

[5] In 2003, the CHRA was abolished and its powers and duties were transferred to the Civil Rights Division of the Texas Workforce Commission.  Little v. Tex. Dep’t of Criminal Justice, 148 S.W.3d 374, 377 (Tex. 2004) (citing Act of May 30, 2003, 78th Leg., R.S., ch. 302, 2003 Tex. Gen. Laws 1279).  For purposes of our discussion of the Lopez opinion, we will refer to the CHRA because it was the law applicable to that case. 

[6] See Fed. R. Civ. P. 12(b)(6) (providing for motion to dismiss for failure to state a claim upon which relief can be granted). 

[7] In its appellate reply brief, TSU argues that it has not waived immunity as to Rodriguez’s Whistleblower Act claim because she did not initiate the grievance or appeal procedures prior to filing suit for violations of the Act.  See Tex. Gov’t Code Ann. § 554.006(a).  TSU, however, did not raise this as a ground to dismiss in its plea to the jurisdiction.  Therefore, we will not consider it in this appeal.