Brownsville Indep. Sch. Dist. v. Alex

408 S.W.3d 670

BROWNSVILLE INDEPENDENT SCHOOL DISTRICT, Appellant,

v.Michael A. ALEX, Appellee.

No. 13–12–00489–CV.

Court of Appeals of Texas, Corpus Christi–Edinburg.

Aug. 8, 2013.

Stacy Castillo, Walsh, Anderson, Gallegos, Green & Trevino, P.C., San Antonio, Miguel A. Saldana, Maxine Longoria–Nash, Walsh, Anderson, Gallegos, Green & Trevino, McAllen, for Appellant.

John L. Shergold, Brownsville, Larry Warner, Harlingen, for Appellee.

Before Justices GARZA, BENAVIDES, and PERKES.

OPINION

Opinion by Justice PERKES.

Appellant Brownsville Independent School District (“BISD”) filed this interlocutory appeal to challenge the trial court's order denying its plea to the jurisdiction.¹ BISD argues that appellee Michael A. Alex failed to exhaust his administrative remedies, and therefore the trial court lacked subject-matter jurisdiction over certain claims. We reverse and render.

I. FACTUAL AND PROCEDURAL BACKGROUND

Alex is a former BISD employee.² On March 12, 2010, Alex filed a complaint with the Texas Workforce Commission (hereinafter, the “Commission”) alleging that because of his race, BISD refused to hire him in October 2009 for a position at the Early College High School. In its entirety, Alex, who is African American, made the following factual complaint to the Commission:

My name is Michael Alex and I hold a Master of Science Degree in Health and Physical Education from Northeast Louisiana University in Monroe, Louisiana, a Bachelor of Science Degree in Physical Education from the University of Texas–Pan America[n], and an Associate['s] Degree in Physical Education from San Jacinto College in Pasadena, Texas. I have also obtained 15 graduate hours in Educational Administration from the University of Texas at Brownsville. Furthermore, I am a certified teacher in Texas.

I was previously employed as a teacher/coach with Porter High School from 1987 to 1995. I was dismissed from my position due to a false accusation. I was subsequently, tried in a court of law based on the false accusations and was acquitted and found not guilty on October 20, 1995.

I have reapplied for employment with the BISD on numerous occasions even interviewed for a Health/PE position in early October 2009. The response from BISD is no response. BISD continues to hire other applicants for positions that I have applied for of other races other than African American that I am a class member of. I believe that I am being discriminated against under Chapter 21, et seq. since BISD refused to hire me, although, I was the best qualified candidate that applied for the position at the Early College High School with BISD and was not selected in early October 2009. Incredibly, BISD has on file an updated application in its Human Resources Department dated January 27, 2010 and [I] have received no contact as to any positions for interview, although BISD is the largest employer South of San Antonio, Texas. Again, I believe BISD is discriminating based upon my race.

I am asking that the Texas Workforce Commission; Division of Civil Rights investigate this injustice based upon BISD refusing to hire based on the color of my skin.

On December 14, 2010, Alex sued BISD for not hiring him on account of his race.³ In his live pleading,⁴ Alex alleges that: (1) he was not hired as a health teacher in October 2009 on account of his race; (2) he was not hired for “other subsequent positions” for which he is qualified, including a position that was filled on or about October 18, 2011; and (3) BISD employs a disproportionately low number of African American persons. ⁵ Alex pleads in his petition that he is not asserting a federal cause of action.

BISD filed a plea to the jurisdiction by which it argued the trial court lacked subject-matter jurisdiction over all of Alex's claims except for his claim that he was not hired in October 2009 for the Early CollegeHigh School position on account of his race. BISD argued that the trial court lacked subject-matter jurisdiction over Alex's other claims because they were not included in Alex's complaint filed with the Commission. After a hearing, the trial court denied BISD's plea to the jurisdiction in its entirety. BISD timely filed this interlocutory appeal.

II. STANDARD OF REVIEW

To render a binding judgment, a court must have both subject-matter jurisdiction over the controversy and personal jurisdiction over the parties. Spir Star AG v. Kimich, 310 S.W.3d 868, 871 (Tex.2010). A plea to the jurisdiction is a dilatory plea; its purpose is “to defeat a cause of action without regard to whether the claims asserted have merit.” Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex.2000). The plea challenges the trial court's subject matter jurisdiction over a pleaded cause of action. Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex.2004); Cameron County, Tex. v. Ortega, 291 S.W.3d 495, 497 (Tex.App.-Corpus Christi 2009, no pet.). Subject-matter jurisdiction is a question of law; therefore, when the determinative facts are undisputed, we review the trial court's ruling on a plea to the jurisdiction de novo. See Miranda, 133 S.W.3d at 228;Ortega, 291 S.W.3d at 497.

III. ANALYSIS

A. Did Alex fail to exhaust his administrative remedies for alleged failure-to-hire claims arising after October 2009 by not including these claims in his pre-suit complaint filed with the Commission?

By its first issue, BISD argues that Alex failed to exhaust his administrative remedies for any position for which he was not hired after “early October 2009” (the date of non-hire that Alex alleged in his complaint) because his pre-suit complaint did not identify with specificity any other position for which he was not hired on account of his race. BISD argues that “failure to hire” is a discrete act and that Alex was required to identify, in his complaint, specific positions for which he was not hired and the date(s) of BISD's alleged unlawful employment actions. Alex argues that: (1) his complaint was broad enough to include BISD's alleged failure to hire him for a coach position at Faulk Middle School in October 2011; (2) his suit concerns a continuing course of conduct and therefore he was not required to file an additional or more detailed complaint with the Commission; and (3) because efforts at conciliation were futile based upon BISD's continuing refusal to hire him, he was not required to file a more specific complaint. We disagree with Alex.

(1) Legal Standard for Exhaustion of Administrative Remedies

Failure to timely file an administrative complaint under section 21.201 of the Texas Labor Code deprives a court of subject-matter jurisdiction over discrimination claims. Tex. Lab.Code Ann. § 21.201 (West 2006); see also Tex. Dep't of Transp. v. Esters, 343 S.W.3d 226, 231 (Tex.App.-Houston [14th Dist.] 2011, no pet.) (citing Lueck v. State, 325 S.W.3d 752, 757–65 (Tex.App.-Austin 2010, pet. denied)); Bartosh v. Sam Houston State Univ., 259 S.W.3d 317, 321 (Tex.App.-Texarkana 2008, pet. denied) (“To attach jurisdiction, [plaintiff] must have filed a complaint with the [Commission] or the United States Equal Employment Opportunity Commission [“EEOC”] within 180 days of the alleged discriminatory employment practice”). In pertinent part, section 21.201 provides the following:

(a) A person claiming to be aggrieved by an unlawful employment practice or the person's agent may file a complaint with the [C]ommission.

(b) The complaint must be in writing and made under oath.

(c) The complaint must state:

(1) that an unlawful employment practice has been committed;

(2) the facts on which the complaint is based, including the date, place, and circumstances of the alleged unlawful employment practice ....

Tex. Lab.Code Ann. § 21.201(a)-(c) (emphasis added). A primary purpose of filing the complaint with the Commission is to trigger an agency investigation so that voluntary compliance with the law is achieved through a conciliatory process. See Pacheco v. Mineta, 448 F.3d 783, 788–89 (5th Cir.2006).⁶ The crucial element of a complaint filed with the Commission is the factual statement which must adequately put an employer on notice of the existence and nature of the discrimination charges being made. Bartosh, 259 S.W.3d at 321. The scope of a subsequent lawsuit is limited to the scope of the investigation that can reasonably be expected to grow out of the discrimination charge in the complaint. Id. at 322. We construe the complaint liberally to reach its substance, but we will not construe it to include facts that were initially omitted. See id.

Under this standard, Alex's claims in this suit may include any claims stated in his complaint and factually related claims that could reasonably be expected to grow out of the Commission's investigation of the claims stated in the complaint. See id. The issue is whether the factual allegations in Alex's complaint, when liberally construed, could reasonably give rise to an investigation of alleged discriminatory failure to hire for specific positions after October 2009, including a position filled in October 2011. See id. The issue is not whether Alex, as the complaining party, believed efforts at conciliation were futile; thus, Alex's reliance on Weise v. Syracuse University to argue futility is misplaced. See522 F.2d 397, 412 (2nd Cir.1975).

The plain language of section 21.201 requires a litigant to give the date, place and circumstances of the alleged unlawful employment practice. ⁷Tex. Lab.Code Ann. § 21.201(c). Failure to hire is a discrete act that, when motivated by unlawful discriminatory intent, is a separate actionable practice. See Pegram v. Honeywell, Inc., 361 F.3d 272, 280 (5th Cir.2004) (citing Nat.'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 114, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002)); see also Prairie View A & M Univ. v. Chatha, 381 S.W.3d 500, 509 (Tex.2012) (explaining “[t]he discriminatory employment decision is the [unlawful] practice made with...