San Antonio Water System v. Rufus Odem--Appeal from 45th Judicial District Court of Bexar County

MEMORANDUM OPINION
No. 04-07-00130-CV
SAN ANTONIO WATER SYSTEM,
Appellant
v.
Rufus ODEM,
Appellee
From the 45th Judicial District Court, Bexar County, Texas
Trial Court No. 2006-CI-14077
Honorable David Peeples, Judge Presiding

Opinion by: Karen Angelini, Justice

 

Sitting: Alma L. L pez, Chief Justice

Karen Angelini, Justice

Rebecca Simmons, Justice

 

Delivered and Filed: August 22, 2007

 

AFFIRMED IN PART; REVERSED AND REMANDED IN PART

 

This is an accelerated appeal of a trial court's order denying the plea to the jurisdiction filed by the San Antonio Water System ("SAWS"). The trial court properly denied the plea on the ground that Odem failed to exhaust his administrative remedies. The trial court erroneously denied the plea on the ground that Odem lacked standing to seek a temporary injunction. We remand the cause to the trial court for further proceedings.

Background

On August 1, 2005, Rufus Odem, director of internal audit at SAWS, filed a charge with the Equal Employment Opportunity Commission ("EEOC") and the civil rights division of the Texas Workforce Commission ("TWC"), alleging that SAWS discriminated against him based on his race and age. On August 9, 2005, Odem amended his charge to include allegations that SAWS retaliated against him in an incident occurring after he filed his charge. On January 23, 2006, he amended his charge again, this time to include allegations of retaliation occurring after he filed his previous amendment. In August of 2006, the EEOC issued a determination concluding that SAWS discriminated against Odem based on his race and in retaliation for his opposition to that discrimination. In September of 2006, TWC sent Odem a letter informing him that he had the right to file a civil action. Odem filed suit against SAWS the same month.

A month after filing suit, Odem filed a second charge with the EEOC and TWC, alleging discrimination and retaliation that occurred after he filed amendments to the first charge. In January of 2007, SAWS placed Odem on administrative leave. Later that month, Odem filed a petition for injunction against SAWS, asking the court to issue a temporary injunction requiring SAWS to either return Odem to work or keep him on paid administrative leave, and prohibiting SAWS from terminating Odem's employment or changing his pay or benefits until the court entered a final judgment in the case. In response, SAWS filed a plea to the jurisdiction, alleging that the trial court lacked subject-matter jurisdiction because: (1) Odem had not exhausted his administrative remedies; and (2) Odem did not have standing to seek temporary injunctive relief. Odem then filed an amended petition, which included an allegation that SAWS retaliated against him for filing a charge by placing him on administrative leave. After a hearing, the trial court denied SAWS' plea to the jurisdiction. This accelerated appeal followed.

Standard of Review

A plea to the jurisdiction challenges the trial court's subject-matter jurisdiction over the cause of action. See Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000). Whether a trial court has subject-matter jurisdiction is a question of law subject to de novo review. Tex. Natural Res. Conservation Comm'n v. IT-Davy, 74 S.W.3d 849, 855 (Tex. 2002).

Exhaustion of Administrative Remedies

In its first issue, SAWS contends that the trial court erred in denying its plea to the jurisdiction because Odem failed to exhaust his administrative remedies with respect to his claim that SAWS placed him on administrative leave in retaliation for filing a charge. Odem brought this suit under Chapter 21 of the Texas Labor Code ("Chapter 21"), alleging employment discrimination and retaliation. See Tex. Lab. Code Ann. 21.051, 21.055 (Vernon 2006). A person claiming a violation of Chapter 21 must exhaust all administrative remedies before bringing a civil suit. See Schroeder v. Tex. Iron Works, Inc., 813 S.W.2d 483, 485 (Tex. 1991) (requiring exhaustion of remedies under predecessor statute). To exhaust administrative remedies under Chapter 21, a person must file a complaint with the TWC within 180 days of the alleged unlawful employment practice. See Tex. Lab. Code Ann. 21.202 (Vernon 2006).

SAWS contends that Odem failed to exhaust his administrative remedies because he did not file a separate charge with the EEOC and TWC regarding his claim that SAWS retaliated against him by placing him on administrative leave. Odem argues that his retaliation claim falls within an exception created by the Fifth Circuit Court of Appeals (1) that states that a plaintiff need not file a separate charge for retaliation claims growing out of an earlier, properly filed charge. See Gupta v. E. Tex. State Univ., 654 F.2d 411, 413-14 (5th Cir. 1981). In Gupta, the plaintiff properly filed two charges with the EEOC, the first alleging discrimination and the second alleging retaliation for filing the first charge. Id. at 412-13. He then filed suit against his employer. Id. at 413. After filing suit, the employer notified him that his teaching contract would not be renewed for the following year. Id. As a result, he alleged in his suit that the non-renewal of his contract was done in retaliation for his filing charges with the EEOC. Id. However, he did not file a separate charge with the EEOC alleging retaliatory discharge. Id. The court held that the lower court had ancillary jurisdiction to hear the retaliation claim because the claim grew out of an administrative charge that was properly before the lower court. Id. at 413-14. At least two Texas cases have followed Gupta. See Elgaghil v. Tarrant County Junior Coll., 45 S.W.3d 133, 142 (Tex. App.- Fort Worth 2000, pet. denied); Thomas v. Clayton Williams Energy, Inc., 2 S.W.3d 734, 738 (Tex. App.-Houston [14th Dist.] 1999, no pet.).

SAWS argues that the United States Supreme Court implicitly overruled Gupta in Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002), where the court held that discriminatory or retaliatory acts occurring outside Title VII's limitations period were not actionable, even if they were related to acts alleged in a timely filed charge. However, Morgan is distinguishable from Gupta because in Morgan, the court applied the Title VII limitations period to pre-charge retaliatory acts and held those acts time-barred, whereas in Gupta, the court addressed the viability of post-charge retaliatory acts that grew out of an earlier charge and were not time-barred. Like Gupta, this case involves a post-charge act - placing Odem on administrative leave - that grew out of the earlier charge in that it was allegedly done in retaliation for filing the charge. Thus, both Gupta and this case are distinguishable from Morgan. The United States District Court for the Western District of Texas has similarly distinguished Morgan from Gupta in two cases and continues to follow Gupta's holding. See Griggs v. Univ. Health Sys., No. SA-06-CA-0384-XR, 2007 WL 708608 at *3 (W.D. Tex. March 7, 2007); Phongsavane v. Potter, No. SA-05-CA-0219-XR, 2006 WL 2706786 at *10 n.11 (W.D. Tex. Sept. 18, 2006).

Because Odem's claim that he was placed on administrative leave in retaliation for filing a charge grew out of an earlier, properly filed charge, we hold that the trial court had ancillary jurisdiction over the claim and that Odem was not required to file a separate charge. See Elgaghil, 45 S.W.3d at 142; Thomas, 2 S.W.3d at 738. Accordingly, we overrule SAWS' first issue.

Temporary Injunction

In its second issue, SAWS contends that the trial court erred in denying its plea to the jurisdiction because Odem did not have standing to seek a temporary injunction. Odem argues that he is entitled to seek a temporary injunction under Section 21.258 of the Texas Labor Code, which authorizes a trial court to grant an injunction if the court makes a finding that a respondent engaged in an unlawful employment practice. See Tex. Lab. Code Ann. 21.258 (Vernon 2006). To resolve this issue, we must interpret provisions of the Texas Labor Code. We review matters of statutory construction de novo. City of Garland v. Dallas Morning News, 22 S.W.3d 351, 357 (Tex. 2000). Our objective in construing a statute is to determine and give effect to the legislature's intent. McIntyre v. Ramirez, 109 S.W.3d 741, 745 (Tex. 2003). In determining that intent, we begin with the plain and common meaning of the statute's words. Id. When the statutory language is unambiguous, we interpret the statute according to its plain meaning. Id. We consider each section and word in connection with the entire statute to ascertain its meaning and promote the statute's purpose. City of San Antonio v. City of Boerne, 111 S.W.3d 22, 25 (Tex. 2003); Harris County v. Williams, 981 S.W.2d 936, 938 (Tex. App.-Houston [1st Dist.] 1998, pet. denied).

Odem bases his authority to seek a temporary injunction on Section 21.258 of the Texas Labor Code. Section 21.258 is in a subchapter entitled "Judicial Enforcement," which authorizes a complainant to file a civil action against a respondent within 60 days after the date a complainant receives notice from TWC of the right to file a civil action. See Tex. Lab. Code Ann. 21.254, 21.258 (Vernon 2006). Section 21.258 is set forth as follows:

(a) On finding that a respondent engaged in an unlawful employment practice as alleged in a complaint, a court may:

(1) prohibit by injunction the respondent from engaging in an unlawful employment practice; and

(2) order additional equitable relief as may be appropriate.

 

(b) Additional equitable relief may include:

(1) hiring or reinstating with or without back pay;

(2) upgrading an employee with or without pay;

(3) admitting to or restoring union membership;

(4) admitting to or participating in a guidance program, apprenticeship, or on-the-job training or other training or retraining program, using objective job-related criteria in admitting an individual to a program;

(5) reporting on the manner of compliance with the terms of a final order issued under this chapter; and

(6) paying court costs.

(c) Liability under a back pay award may not accrue for a date more than two years before the date a complaint is filed with the commission. Interim earnings, workers' compensation benefits, and unemployment compensation benefits received operate to reduce the back pay otherwise allowable.

 

Tex. Lab. Code Ann. 21.258 (Vernon 2006).

 

SAWS asserts that Odem cannot seek a temporary injunction under section 21.258(a) because the section authorizes only permanent injunctive relief. Specifically, SAWS argues that section 21.258(a) allows only permanent injunctions because the section requires the trial court to make a finding that a respondent engaged in an unlawful employment practice, a determination that could be made only after a resolution of the case on its merits. We agree. Section 21.258(a) states that a trial court can grant an injunction if the court makes a "finding that a respondent engaged in an unlawful employment practice as alleged in a complaint." See Tex. Lab. Code Ann. 21.258(a) (Vernon 2006). Because the provision requires a finding regarding the ultimate issue in an employment-discrimination case, it necessarily excludes temporary injunctions, which occur before the completion of a trial on the merits and do not require a final determination of an issue in the case. Compare Walling v. Metcalfe, 863 S.W.2d 56, 58 (Tex. 1993) (to obtain temporary injunction, applicant not required to establish that he will prevail on final trial), and Iranian Muslim Org. v. City of San Antonio, 615 S.W.2d 202, 208 (Tex. 1981) (purpose of temporary injunction is preservation of status quo pending trial on merits), with State v. Gibson's Distrib. Co., 436 S.W.2d 122, 124 (Tex. 1968) (trial court cannot enter permanent injunction until case is tried on merits); and Elizondo v. Williams, 643 S.W.2d 765, 767 (Tex. App.-San Antonio 1982, no writ) (permanent injunction not dependent upon future action by court).

Although Texas district courts usually have general jurisdiction, which includes the power to grant a temporary injunction, this rule does not apply when the cause of action and remedy for its enforcement are derived not from the common law but from a statute. See Tex. Gov't Code Ann. 24.008 (Vernon 2004); Mingus v. Wadley, 115 Tex. 551, 285 S.W. 1084, 1087 (1926), overruled on other grounds, Dubai Petroleum Co. v. Kazi, 12 S.W.3d 71, 76 (Tex. 2000); GuideOne Ins. Co. v. Cupps, 207 S.W.3d 900, 904 (Tex. App.-Fort Worth 2006, pet. denied). When the cause of action and remedies for its enforcement are derived from a statute, the statutory provisions are mandatory and exclusive, and must be complied with in all respects. See Mingus, 285 S.W. at 1087; GuideOne, 207 S.W.3d at 904. Here, Odem's cause of action is derived from Chapter 21 of the Texas Labor Code. Chapter 21 creates a cause of action for employment discrimination and authorizes the trial court to grant several remedies, including equitable relief, compensatory damages, punitive damages, and attorney's fees and costs. See Tex. Lab. Code Ann. 21.254, 21.258-21.259 (Vernon 2006). Thus, because Odem's cause of action and the remedies for its enforcement are derived from Chapter 21, Chapter 21's provisions are mandatory and exclusive. See Mingus, 285 S.W. at 1087; GuideOne, 207 S.W.3d at 904.

Because section 21.258(a) authorizes only permanent injunctions, and because no other provision within the statute authorizes a complainant to seek a temporary injunction, Odem is not entitled to seek a temporary injunction for claims brought under Chapter 21. We note that although the statute does not permit temporary injunctions, it does provide a remedy for a plaintiff who is unlawfully terminated from employment by requiring that a trial court expedite actions under Chapter 21 and by authorizing a trial court to order a defendant to hire or reinstate a plaintiff with back pay once the court makes a finding that a defendant engaged in an unlawful employment practice. See Tex. Lab. Code Ann. 21.257, 21.258(b)(1) (Vernon 2006).

Because Chapter 21's provisions are mandatory and exclusive, and because Chapter 21 does not authorize a complainant to seek a temporary injunction, we hold that Odem is not entitled to seek temporary injunctive relief and that the trial court therefore erred in denying SAWS' plea to the jurisdiction with regard to this issue.

Conclusion

We reverse the trial court's order to the extent that it denies SAWS' plea to the jurisdiction based on Odem's lack of standing to seek a temporary injunction. We affirm the trial court's order to the extent that it denies SAWS' plea to the jurisdiction based on Odem's exhaustion of administrative remedies. We remand the cause for further proceedings consistent with this opinion.

Karen Angelini, Justice

1. Because one of the purposes of Chapter 21 is to execute the policies of Title VII of the Civil Rights Act of 1964, federal case law may be cited as authority. See Tex. Lab. Code Ann. 21.001(1) (Vernon 2006); Quantum Chem. Corp. v. Toennies, 47 S.W.3d 473, 476 (Tex. 2001).