Glynda Ray v. Dallas County Southwestern Institute of Forensic Sciences & Medical Examiner Department ( 2013 )

Affirm and Opinion Filed May 16, 2013.
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-12-01598-CV
DALLAS COUNTY SOUTHWESTERN INSTITUTE OF FORENSIC SCIENCES &
MEDICAL EXAMINER DEPARTMENT, Appellant
V.
GLYNDA RAY, Appellee
On Appeal from the 101st District Court
Dallas County, Texas
Trial Court Cause No. DC-11-07904-E
OPINION
Before Justices Lang, Myers, and Evans
Opinion by Justice Myers
Dallas County Southwestern Institute of Forensic Sciences and Medical Examiner
Department brings this interlocutory appeal of the trial court’s denial of its plea to the
jurisdiction. See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(8) (West Supp. 2012). In a
single issue, the County contends the trial court erred by denying its plea to the jurisdiction. We
affirm the trial court’s order.
BACKGROUND
On April 27, 2010, Ray was terminated from her position in the Dallas County Medical
Examiner’s Office. Ray was fifty-four years old when she was terminated, and she was replaced
by a younger employee. On October 18, 2010, 174 days after her termination, she filed a charge
of discrimination with the Texas Workforce Commission, Civil Rights Division by filling out an
intake questionnaire. Ray asserted in the questionnaire that her termination involved age
discrimination. On November 29, 2010, Ray received a letter from the commission
acknowledging acceptance of Ray’s complaint for investigation. The letter included a “Charge
of Discrimination” form containing the information of Ray’s complaint, and the letter instructed
Ray to sign the form and have it notarized and return it to the commission by December 13,
2010. Ray signed the form and had it notarized on December 7, 2010, and she mailed it to the
commission on December 9, 2010. On December 16, 2010, the commission for the first time
sent the County a copy of Ray’s complaint. After investigating, the commission notified Ray
that the evidence did not reflect that age discrimination was a factor in the County’s decision to
terminate her. The commission formally dismissed her complaint on April 29, 2011 and gave
her notice of her right to file a civil action.
Ray filed suit against the County on June 27, 2011, alleging the County violated her
rights under the Texas Commission on Human Rights Act by discharging or discriminating
against her based on her age. The County filed a plea to the jurisdiction asserting it was immune
from suit because the commission failed to notify the County that Ray had timely filed an
unsworn complaint, and that the process for perfecting the complaint was in process outside the
180-day limitations period. The trial court denied the plea to the jurisdiction, and the County
brought this interlocutory appeal.
PLEA TO THE JURISDICTION
In its sole issue, the County contends the trial court erred by denying the County’s plea to
the jurisdiction. Whether a court has subject-matter jurisdiction is a question of law. Tex. Dep’t
of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004); Tex. Natural Res.
Conservation Comm’n v. IT–Davy, 74 S.W.3d 849, 855 (Tex. 2002). When a plea to the
jurisdiction challenges the pleadings, we determine if the pleader has alleged facts that
affirmatively demonstrate the court’s jurisdiction to hear the cause. Miranda, 133 S.W.3d at
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226. 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. Miranda, 133 S.W.3d at 227. If the evidence creates a fact question regarding the
jurisdictional issue, then the trial court cannot grant the plea to the jurisdiction, and the fact issue
must be resolved by the fact finder. Id. at 227–28. If the evidence is undisputed or fails to raise
a fact question on the jurisdictional issue, then the trial court rules on the plea to the jurisdiction
as a matter of law. Id. at 228.
In Texas, sovereign or governmental immunity deprives a trial court of subject-matter
jurisdiction over lawsuits against the State or other governmental units unless the government
consents to suit. Miranda, 133 S.W.3d at 224. The Texas Commission on Human Rights Act
provides a limited waiver of governmental immunity when a governmental unit has committed
employment discrimination on the basis of age or other prohibited grounds. Tex. Dep’t of Pub.
Safety v. Alexander, 300 S.W.3d 62, 69 (Tex. 2009); see TEX. LAB. CODE ANN. § 21.002(8)(D)
(West Supp. 2012); id. §§ 21.051, .254 (West 2006). However, the government’s immunity
from suit is not waived unless there has been compliance with all statutory prerequisites to suit,
including the provision of notice. See TEX. GOV’T CODE ANN. § 311.034 (West Supp. 2012).
To bring suit for a violation of the Texas Commission on Human Rights Act, the plaintiff
must first have exhausted the administrative remedies under the Act. Schroeder v. Tex. Iron
Works, Inc., 813 S.W.2d 483, 485 (Tex. 1991), overruled on other grounds by In re United
Servs. Auto. Ass’n, 307 S.W.3d 299, 310 (Tex. 2010); see Alexander, 300 S.W.3d at 70 & n.4.
To invoke the administrative remedy, a person aggrieved by an unlawful employment practice
must file a complaint with the commission. LAB. § 21.201(a) (West 2006). Termination of or
discrimination in employment against an employee forty years of age or older because of the
employee’s age is an unlawful employment practice. Id. §§ 21.051, .101. The complaint must
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be filed within 180 days after the alleged unlawful employment practice occurred, and the
commission must dismiss any untimely complaints. Id. § 21.202. The complaint must be in
writing and made under oath. Id. § 21.201(b). If the complaint suffers from technical defects or
omissions, including a failure to verify the complaint, then the complaint may be amended to
cure these defects. Id. § 21.201(e). An amended complaint relates back to the date the
complaint was first received by the commission. Id. § 21.201(f). “If a perfected complaint is not
received by the commission within 180 days of the alleged unlawful employment practice, the
commission shall notify the respondent that a complaint has been filed and that the process of
perfecting the complaint is in progress.” Id. § 21.201(g). The commission must serve the
respondent with the perfected complaint within ten days of its filing. Id. § 21.201(d).
After the complaint is perfected, the commission has 180 days to investigate and attempt
to resolve the complaint. See id. §§ 21.208, .253. If the commission determines there is no
reasonable cause to believe the employer engaged in the alleged unlawful employment practice,
then the commission issues a written determination, dismisses the complaint, and notifies the
complainant of the dismissal. Id. § 21.205. The commission may issue a notice that the
complainant has the right to file a civil action. Id. § 21.252(c). The complainant then has sixty
days to bring a civil action. Id. § 21.254. The Act also contains a statute of limitations requiring
suit to be brought within two years of the date of the complaint. Id. § 21.256.
In this case, it is undisputed that Ray initially filed her complaint, the intake
questionnaire, on October 18, 2010, 174 days following her termination. The complaint was not
perfected, however, because it was not sworn. Ray filed her perfected, amended complaint on
December 9, 2010, and the amended complaint related back to the October 18 day of filing
pursuant to section 21.201(f). However, when the 180th day expired and the perfected complaint
had not been filed, the commission did not notify the County as required by section 21.201(g)
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that a complaint had been filed and that the process of perfecting the complaint was in progress.
After Ray filed the perfected complaint on December 9, the commission served the County with
the complaint on December 16, which was within the ten days of its filing as required by section
21.201(d). After investigating, the commission issued a determination of no reasonable cause to
find Ray’s termination resulted from unlawful age discrimination and gave Ray notice of her
right to file a civil action, and Ray brought suit less than sixty days later.
The County contends the trial court lacked jurisdiction because there was not compliance
with all “[s]tatutory prerequisites to a suit, including the provision of notice” as required by
section 311.034 of the Government Code. See GOV’T § 311.034. The statutory prerequisite the
County contends was omitted was the requirement under section 21.201(g) of the Labor Code
that the commission notify the county after 180 days from the alleged employment incident that
a defective complaint has been filed and that the process of perfecting the complaint is in
progress. Accordingly, we must determine whether the commission’s compliance with section
21.201(g) was a statutory prerequisite to Ray’s suit against the County.
When construing a statute, our chief objective is effectuating the legislature’s intent.
Nat’l Liab. & Fire Ins. Co. v. Allen, 15 S.W.3d 525, 527 (Tex. 2000). When we interpret a code
enacted by the legislature, we read words and phrases in context and construe them according to
the rules of grammar and common usage. GOV’T § 311.011(a) (West 2005); Cooper v. Tex.
Workforce Comm’n, 343 S.W.3d 310, 312 (Tex. App.—Dallas 2011, pet. denied).
One of the purposes of the Act is “to address the specific evil of discrimination and
retaliation in the workplace.” City of Waco v. Lopez, 259 S.W.3d 147, 153 (Tex. 2008); see LAB.
§ 21.001(4) (“The general purposes of this chapter are to: . . . (4) secure for persons in this
state . . . freedom from discrimination in certain employment transactions, in order to protect
their personal dignity . . . .”).
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In Prairie View A & M University v. Chatha, 381 S.W.3d 500 (Tex. 2012), the supreme
court provided insight into the meaning of the term “[s]tatutory prerequisites to a suit.”
The term “statutory prerequisite” has three components. First, . . . a prerequisite
must be found in the relevant statutory language. Second, the prerequisite must
be a requirement. And finally, the term “pre” indicates the requirement must be
met before the lawsuit is filed. Thus, according to the plain language of section
311.034, the term “statutory prerequisite” refers to statutory provisions that are
mandatory and must be accomplished prior to filing suit.
Id. at 511–12 (citations and footnote omitted). The supreme court also observed, “this Court
consistently defers to the Legislature to waive immunity from suit. Thus, it is the Legislature’s
function to determine what steps a litigant must take before the state’s immunity is waived.” Id.
at 513 (citations omitted). Under Chatha, then, a statutory prerequisite to suit is a step a litigant
must take that is a requirement, set forth in the statute, that must be met before the lawsuit is
filed. See id. at 511–13.
The Texas Supreme Court has stated that the statutory prerequisite to suit under the Texas
Commission on Human Right Act is exhaustion of the Act’s administrative remedies.
Schroeder, 813 S.W.2d at 485 (“We hold that a person claiming a CHRA violation must first
exhaust the CHRA’s administrative remedies prior to bringing a civil action for such violation.”);
see Alexander, 300 S.W.3d at 70 n.4 (citing Schroeder). In Alexander, the supreme court set
forth the requirements for exhaustion of the administrative remedies under the Act. Those
requirements are that the plaintiff must: (1) file the complaint with the commission within 180
days of the alleged discriminatory act; (2) allow the commission 180 days to dismiss or resolve
the complaint before filing suit; and (3) file suit in district court no later than two years after the
complaint is filed with the commission. 1 Alexander, 300 S.W.3d at 70 n.4. The court has never
1
In a later case, the supreme court concluded “that the two year period for filing suit is mandatory but not jurisdictional.” In re United
Servs. Auto. Ass’n, 307 S.W.3d at 310.
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stated that the commission’s compliance with section 21.201(g) is necessary for the
complainant’s exhaustion of the administrative remedy or that it is a statutory prerequisite to suit.
Section 21.201(g) imposes a duty on the commission, not the complainant, to notify the
respondent that a complaint has been filed that will be perfected outside the 180 days. In this
case, the commission is not “a litigant.” Cf. Presidio Indep. Sch. Dist. v. Scott, 309 S.W.3d 927,
930 (Tex. 2010) (“The Commissioner [of Education] is a neutral arbiter performing a limited
review of the board’s decision and does not have a direct stake in the outcome.”). Thus, under
the discussion in Chatha of the term “statutory prerequisite,” compliance with section 21.201(g)
would not be a statutory prerequisite to suit.
In support of its argument that section 21.201(g) is a statutory prerequisite to suit, the
County cites two cases, Dallas County, Texas v. C. Green Scaping, L.P., 301 S.W.3d 872 (Tex.
App.—Dallas 2009, no pet.), and Chatha. In C. Green Scaping, the issue was whether section
89.004(a) of the Local Government Code was a statutory prerequisite to suit under section
311.034. The statute stated, “a person may not file suit against a county . . . unless the person
has presented the claim to the commissioners court.” TEX. LOC. GOV’T CODE ANN. § 89.004(a)
(West 2008). We concluded it was a statutory prerequisite to suit. See C. Green Scaping, 301
S.W.3d at 878. In Chatha, the issue was whether section 21.202’s requirement that the
complainant file a complaint with the commission within 180 days of the unlawful employment
practice was a statutory prerequisite to suit. Chatha, 381 S.W.3d at 510. After analyzing the
meaning of “statutory prerequisite to suit,” the court concluded that the 180-day filing
requirement was a statutory prerequisite to suit and a jurisdictional requirement under section
311.034. In both Chatha and C. Green Scaping, the statutory prerequisite was one imposed on
the litigant, the plaintiff who would be bringing suit against the government. See LAB.
§§ 21.201(a), .202 (person claiming to be aggrieved files the complaint, and the complaint must
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be filed within 180 days); LOC. GOV’T § 89.004(a) (person may not file suit against the county
unless the person has presented the claim to the commissioners court). The county cites no
authority concluding that a statutory prerequisite under section 311.034 can be a requirement
imposed on someone other than the plaintiff and over whom the plaintiff has no control. All of
the cases discussing jurisdictional statutory prerequisites to suit under section 311.034 have
involved requirements imposed on the party bringing suit. See, e.g., Univ. of Hous. v. Barth, 313
S.W.3d 817, 818 (Tex. 2010) (per curiam) (Texas Whistleblower Act’s requirement that
employee have filed good-faith reports of law violation to appropriate law-enforcement authority
was jurisdictional); Little v. Bd. of Law Examiners, 334 S.W.3d 860, 862 (Tex. App.—Austin
2011, no pet.) (requirement that applicant for admission to Bar institute proceedings within sixty
days of decision being mailed to applicant was jurisdictional); Med. Arts. Hosp. v. Robison, 216
S.W.3d 38, 40–44 (Tex. App.—Eastland 2006, no pet.) (Texas Whistleblower Act’s requirement
that a public employee initiate action under the employer’s grievance procedures before suing
was jurisdictional); Wren v. Tex. Emp’t Comm’n, 915 S.W.2d 506, 508 (Tex. App.—Houston
[14th Dist.] 1995, no writ) (requirement that applicant for unemployment-compensation benefits
bring suit within ten days against all other parties to the proceeding against the commission was
jurisdictional).
The County’s argument that the commission’s failure to send the notice required by
section 21.201(g) constitutes a jurisdictional bar to a later suit by a governmental employee
would give the commission the ability to create a jurisdictional bar in all suits against
governmental employers by employees who filed timely but technically deficient complaints
under the Act too close to the 180-day deadline to correct the complaints within the 180 days.
This interpretation would work against the clear intent of the statute that employees, including
governmental employees, who initially filed technically deficient complaints within the 180 days
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be entitled to amend the complaints outside the 180 days and still take advantage of all the
remedies of the Act, including the right to bring a civil action for enforcement of the Act.
Nothing in the Act supports giving the commission this power to bar subsequent suits against
governmental employers. Nor does the County provide any argument explaining why the
dismissal of a suit because of an error by the commission and not the employee should constitute
a jurisdictional bar to the employee’s suit.
We conclude that section 21.201(g)’s requirement that the commission “notify the
respondent that a complaint has been filed and that the process of perfecting the complaint is in
progress” is not one of the “[s]tatutory prerequisites to a suit” whose compliance is a
jurisdictional requirement. We therefore conclude that the trial court did not err by denying the
County’s plea to the jurisdiction. We overrule the County’s sole issue.
CONCLUSION
We affirm the trial court’s order.
/Lana Myers/
LANA MYERS
121598F.P05 JUSTICE
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
Dallas County Southwestern Institute of On Appeal from the 101st District Court,
Forensic Sciences & Medical Examiner Dallas County, Texas
Department, Appellant Trial Court Cause No. DC-11-07904-E.
Opinion delivered by Justice Myers.
No. 05-12-01598-CV V. Justices Lang and Evans participating.
Glynda Ray, Appellee
In accordance with this Court’s opinion of this date, the trial court’s order denying the
plea to the jurisdiction is AFFIRMED.
It is ORDERED that appellee Glynda Ray recover her costs of this appeal from appellant
Dallas County Southwestern Institute of Forensic Sciences & Medical Examiner Department.
Judgment entered this 16th day of May, 2013.
/Lana Myers/
LANA MYERS
JUSTICE
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