Sw. Convenience Stores, LLC v. Mora

560 S.W.3d 392

SOUTHWEST CONVENIENCE STORES, LLC, Appellant,

v.Norma MORA, Appellee.

No. 08-15-00099-CV

Court of Appeals of Texas, El Paso.

August 31, 2018

ATTORNEY FOR APPELLANT: Hon. Mark D. Dore, Mounce, Green, Myers, Safi, Paxson & Galatzan, PC, P.O. Box 1977, El Paso, TX 79999-1977.

ATTORNEYS FOR APPELLEE: Hon. Enrique Chavez Jr., 2101 N. Stanton St., El Paso, TX 79902, Hon. Miguel Hernandez, Chavez Law Firm, 2101 Stanton Street, El Paso, TX 79902.

Before McClure, C.J., Rodriguez, J., and Larsen, J. (Senior Judge)

OPINION

ANN CRAWFORD McCLURE, Chief JusticeSouthwest Convenience Stores (SCS) files this interlocutory appeal challenging the trial court’s order denying its plea to the jurisdiction. The appeal raises the recurring issue of whether claims asserted in a worker’s employment discrimination lawsuit were first raised in an administrative charge of discrimination. That question is important, because under our statutory framework, a trial court can only hear claims timely pursued in the administrative review process, or those factually related claims that can reasonably be expected to grow out of it.¹ In this case, we conclude that the employee’s sexual harassment and retaliation claims were not raised in the administrative process, and we render judgment dismissing the case for want of subject matter jurisdiction.

BACKGROUND

SCS, which operates "7-11" convenience stores, hired Norma Mora in 2002 and promoted her to a managerial position in 2007. She was supervised by Daniel Silva. In October 2011, she requested to self-demote back to a store clerk position. The how and why of that request lies at the heart this case.

The Administrative Discrimination Charge

On December 22, 2011, Mora filed a charge of discrimination with the United States Equal Employment Opportunity Commission (EEOC) and the Texas Workforce Commission (TWC). Specifically, her charge alleged the following:

I. On or about October 30, 2011, I told my supervisor, Danny Silva, male, that starting February 2012 I was going to be stepping down from manager to clerk. Immediately after I told Mr. Silva about my intentions to step down, he began harassing and intimidating me about everything. From about December 03, 2011 to now, Mr. Silva has given me three written warnings without a legitimate reason. Mr. Silva’s intentions are to get me discharged because of my sex, female.

II. No legitimate reasons are given.

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

Part of Mora’s EEOC investigation file includes "Charge Detail Inquiry Intake Notes" that read:

[Mora] stated that about October 30, 2011, she told her supervisor, Danny Silva, male, that starting February 2012 she was going to be stepping down from manager to clerk. [Mora] claims that she told him that she was going to begin her own business therefore would be leaving the store at one point. [Mora] claims that she wanted to step down to clerk because of her future plans of opening her own business. [Mora] then claims that immediately after she told Mr. Silva about her intentions to step down and her own business, he began harassing and intimidating her about everything. [Mora] claims that he would yell at her in front of customers. I asked her what would he say and she just said about store issues but nothing really discriminatory. [Mora] then stated that from about December 03, 2011 to present Mr. Silva has given her three written warnings, one for tardiness, whom she claims is true; two for not reporting gasoline, [Mora] could not explain that to me and three because the food in the fridge was bad. [Mora] claims that she was not in charge of the store on that day the food went bad and that her assistant was in charge. I asked [Mora] if that assistant was her subordinate and she said yes. I then asked if Mr. Silva is like that with everyone as to the harassment and intimidation and she said yes. I then explained to her about our statutes and asked her in what way did she feel discriminated against. [Mora] the[n] stated that Mr. Silva’s intentions are to get her discharged because of her sex, female. I asked [Mora] if there was a tangible action and she said no. I then asked her if she reported the harassment to anyone else including HR and she said no. I explained to [Mora] that there was insufficient evidence to establish a prima facie case; however she had the right to file a charge of discrimination. [Mora] decided to proceed with the charge.

On January 11, 2012, the EEOC issued its dismissal and notice of right to sue.

SCS Fires Mora

On February 27, 2012, SCS terminated Mora’s employment. SCS based the termination on Mora cashing money orders for a store deposit. Mora, however, claims that she was following Silva’s orders and he directed her to cash the money orders.

Mora Files this Lawsuit

On September 6, 2013, Mora filed suit against SCS.² Both her original and first amended petitions allege claims of sexual harassment by Silva dating back to 2009. Specifically, Mora alleged that Silva made sexual advances toward her and later frequently insulted her for not yielding to such advances, calling her "useless" and telling her that she "was not pretty anymore" whenever she refused his sexual overtures. Mora also alleged that she tried to transfer to a different store but was told she needed to demote herself to be eligible for a transfer. When she informed Silva that she was stepping down as a manager to resume a position as a clerk, Silva allegedly retaliated against her for expressing an intent to transfer to another store, and for not yielding to his sexual advances. Specifically, he reprimanded her on at least three separate occasions between December 11 and 22, 2011. The lawsuit also alleges that Mora "was terminated because she refused to capitulate to Supervisor Silva’s sexual advances, and in retaliation for protected activity under the law."

Proceedings Below

SCS answered the lawsuit and filed a plea to the jurisdiction contending that it was not until the filing of her lawsuit that Mora made any claim of unwelcome sexual harassment and retaliation. As a result, SCS argued that because Mora failed to include her claims of sexual harassment and retaliation in her charge of discrimination, she did not exhaust her administrative remedies thereby preventing the trial court from exercising its jurisdiction over the claims. The trial court denied SCS’s plea to the jurisdiction but later granted its motion for permissive appeal. See TEX.CIV.PRAC.&REM.CODE ANN. § 51.014(d) (West Supp. 2017)(trial court in a civil action may permit an appeal from an otherwise unappealable interlocutory order if it "involves a controlling question of law as to which there is a substantial ground for difference of opinion" and "an immediate appeal from the order may materially advance the ultimate termination of the litigation.").

On appeal, SCS contends that the trial court erred in denying its plea to the jurisdiction because Mora failed to exhaust her administrative remedies when she failed to include both her sexual harassment and retaliation claims in her original charge. While SCS presents these arguments in a sole issue, we will address the sexual harassment and retaliation claims separately.

PLEA TO THE JURISDICTION

A plea to the jurisdiction is a dilatory plea by which a party challenges the court’s authority to determine the subject matter of a cause of action. Bland Independent School Dist. v. Blue , 34 S.W.3d 547, 554 (Tex. 2000) ; see Texas Department of Transp. v. Jones , 8 S.W.3d 636, 637-38 (Tex. 1999). We review the issue of whether a trial court has subject matter jurisdiction de novo. Texas Dept. of Parks and Wildlife v. Miranda , 133 S.W.3d 217, 226-27 (Tex. 2004) ; State Dept. of Highways and Public Transp. v. Gonzalez , 82 S.W.3d 322, 327 (Tex. 2002).

When a plea to the jurisdiction challenges the sufficiency of the pleadings, we determine whether the plaintiff has met that burden by pleading facts that affirmatively demonstrate the trial court’s subject matter jurisdiction. Miranda , 133 S.W.3d at 226. In doing so, we construe the pleadings liberally in favor of the plaintiff and look to the pleader’s intent, and accept as true the factual allegations in the pleadings. Id. at 226, 228. If the pleadings are insufficient to establish jurisdiction but do not affirmatively demonstrate an incurable defect, then the issue is one of pleading sufficiency and the plaintiff should be afforded the opportunity to amend. State v. Holland , 221 S.W.3d 639, 643 (Tex. 2007) ; Miranda , 133 S.W.3d at 226-27 ; County of Cameron v. Brown , 80 S.W.3d 549, 555 (Tex. 2002). However, if the pleadings affirmatively negate the existence of the trial court’s jurisdiction, then a plea to the jurisdiction may be granted without allowing the plaintiff an opportunity to amend. Miranda , 133 S.W.3d at 226-27.

When a plea to the jurisdiction challenges the existence of jurisdictional facts, we consider relevant evidence submitted by the parties to the extent necessary to resolve the jurisdictional issues raised, just as the trial court is required to do. Miranda , 133 S.W.3d at 227. When a plea to the jurisdiction includes evidence, and the jurisdictional challenge implicates the merits of the plaintiff’s cause of action, the trial court will review the relevant evidence to determine whether a fact issue exists. Miranda , 133 S.W.3d at 227. If the evidence illustrates a fact question regarding the jurisdictional issue, a plea to the jurisdiction may not be granted and the fact finder should resolve the fact issue. Id. at 228. However, if the relevant evidence is undisputed or fails to raise a fact question on the jurisdictional issue, then the plea to the jurisdiction may be ruled on as a matter of law. Id.

EXHAUSTION OF ADMINISTRATIVE REMEDIES CLAIMS

Chapter 21 of the Texas Labor Code addresses employment discrimination....