Texas Department of Criminal Justice v. Robert Guard--Appeal from 12th District Court of Walker County
TENTH COURT OF APPEALS
Texas Department of Criminal Justice,
From the 12th District Court
Walker County, Texas
Trial Court No. 21,786
Robert Guard sued the Texas Department of Criminal Justice for discrimination and retaliation in violation of the Texas Labor Code. The TDCJ challenges the court s denial of its plea to the jurisdiction. We affirm.
STANDARD OF REVIEW
A plea to the jurisdiction challenges the trial court s power to determine the subject matter of the suit. Vela v. Waco Indep. Sch. Dist., 69 S.W.3d 695, 698 (Tex. App. Waco 2002, pet. withdrawn). We review a plea based on sovereign immunity de novo because the question of whether a court has subject matter jurisdiction is a matter of law. Hoff v. Nueces County, 153 S.W.3d 45, 48 (Tex. 2004); see Vela, 69 S.W.3d at 698. Where the pleading requirement has been met and evidence has been submitted to support the plea that implicates the merits of the case, we take as true all evidence favorable to the nonmovant. Tex. Dep t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 228 (Tex. 2004) (citing Sci. Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex. 1997)). We indulge every reasonable inference and resolve any doubts in the nonmovant s favor. Id.
In its first issue, the TDCJ argues that it is immune from suit because Guard failed to exhaust administrative remedies and failed to establish a claim under the Labor Code. The TDCJ s second issue expounds upon its first issue by presenting a myriad of sub-issues: (1) Guard failed to exhaust administrative remedies; (2) the TDCJ is not Guard s employer; (3) Guard cannot establish an adverse employment action or disparate treatment; and (4) Guard cannot prove a hostile work environment.
Unless waived, sovereign immunity shields governmental entities from suit. See Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692, 696 (Tex. 2003); see also Somervell County Healthcare Auth. v. Sanders, 169 S.W.3d 724, 726 (Tex. App. Waco 2005, no pet.). Chapter 21 of the Labor Code waives immunity as to entities it defines as employers, including in relevant part, a county, municipality, state agency, or state instrumentality... Tex. Lab. Code Ann. 21.002(8)(D) (Vernon 2006); see Sauls v. Montgomery County, 18 S.W.3d 310, 315 (Tex. App. Beaumont 2000, no pet.); see also Dallas/Fort Worth Int l Airport Bd. v. Funderburk, 188 S.W.3d 233, 235 (Tex. App. Fort Worth 2006, pet. granted, judgm t vacated w.r.m.); Purdin v. Copperas Cove Econ. Dev. Corp., 143 S.W.3d 290, 293 n.2 (Tex. App. Waco 2004, pet dism d). Citing Cornish v. Texas Department of Criminal Justice, the TDCJ disputes whether it is Guard s employer. Cornish utilized a two-part test to determine the TDCJ s status as an employer: (1) the defendant must fall within the statutory definition [of an employer]; and (2) there must be an employment relationship between the plaintiff and the defendant. No. 3:04-cv-0579-R, 2006 U.S. Dist. Lexis 8231, at *18 (N.D. Tex. March 2, 2006) (mem.) (quoting Deal v. State Farm County Mut. Ins. Co., 5 F.3d 117, 118 n.2 (5th Cir. 1993)).
The TDCJ s argument confuses immunity from suit and immunity from liability. Immunity from suit prohibits suits against the State unless the State expressly consents to the suit. Taylor, 106 S.W.3d at 696. Immunity from liability protects the State from judgments even after the State has consented to suit. Id. Unlike immunity from suit, immunity from liability does not affect a court s jurisdiction to hear a case and cannot be raised in a plea to the jurisdiction. Id.
At least one court has applied the two-part test in the context of a plea to the jurisdiction. See De Santiago v. W. Tex. Cmty. Supervision & Corr. Dep t, 203 S.W.3d 387, 396-99 (Tex. App El Paso 2006, no pet.). However, we do not agree that the second prong of this test applies to the issue of immunity from suit. When addressing immunity from suit, we have found a waiver of immunity solely based on whether a governmental entity meets the Labor Code s definition of an employer. See Purdin, 143 S.W.3d at 303; see also Tex. Dep t of Crim. Justice v. King, No. 10-01-058-CV, 2003 Tex. App. Lexis 10481, at *12 (Tex. App. Waco Dec. 10, 2003, pet. denied) (mem. op.). In King, we specifically noted that there is no question that the TCHRA waives TDCJ s immunity from suit. 2003 Tex. App. Lexis 10481, at *12 (emphasis added). In Funderburk, the Fort Worth Court affirmed the denial of a plea to the jurisdiction because an entity fell within the TCHRA s definition of employer and because the TCHRA waives sovereign immunity from suit as to the entities defined by the Act as employers. 188 S.W.3d at 234, 238 (emphasis added); see Tarrant County Hosp. Dist. v. Henry, 52 S.W.3d 434, 448 (Tex. App. Fort Worth 2001, no pet.). Other courts have applied the two-part test when determining whether a defendant is an employer subject to liability. Cornish, 2006 U.S. Dist. Lexis 8231, at *18 (emphasis added); Ancira Enters. v. Fischer, 178 S.W.3d 82, 88 (Tex. App. Austin 2005, no pet.).
Accordingly, we do not find that an employment relationship is necessary to determining immunity from suit. Whether the TDCJ is Guard s employer addresses immunity from liability, an issue that we are prohibited from considering when reviewing a plea to the jurisdiction. See Taylor, 106 S.W.3d at 696. We, therefore, hold that the TDCJ qualifies as an employer as defined by the Labor Code. See King, 2003 Tex. App. Lexis 10481, at *12. The court did not erroneously deny the TDCJ s plea to the jurisdiction on this basis. See Sauls, 18 S.W.3d at 315; see also Funderburk, 188 S.W.3d at 235-36; Purdin, 143 S.W.3d at 293 n.2; Tex. Lab. Code Ann. 21.002(8)(D).
The Labor Code establishes two timelines with which an aggrieved employee must comply. First, an employee must file an administrative complaint within 180 days of any alleged discriminatory acts. See Rice v. Russell-Stanley, L.P., 131 S.W.3d 510, 513 (Tex. App. Waco 2004, pet. denied); see also Schroeder v. Texas Iron Works, Inc., 813 S.W.2d 483, 485-86 (Tex. 1991); Tex. Lab. Code Ann. 21.202(a) (Vernon 2006). This requirement is mandatory and jurisdictional; thus, failing to comply deprives the court of subject matter jurisdiction. Schroeder, 813 S.W.2d at 486; Czerwinski v. Univ. of Tex. Health Sci. Ctr., 116 S.W.3d 119, 121 (Tex. App. Houston [14th Dist.] 2002, pet. denied); see Vela, 69 S.W.3d at 700. Second, the employeemust file suit within 60 days of receiving a right-to-sue letter from the administrative agency. See Vela, 69 S.W.3d at 699; see also Tex. Lab. Code Ann. 21.254 (Vernon 2006). The Texas Supreme Court has not addressed whether this 60-day period is jurisdictional.
According to the Government Code, statutory prerequisites, such as notice, are jurisdictional requirements in all suits against a governmental entity. Tex. Gov. Code. Ann. 311.034 (Vernon Supp. 2006). However, a filing period is not an act that must be performed prior to filing suit and so is not a statutory prerequisite. We have held that a filing period is a limitations period, not a jurisdictional requirement. Tex. Dep t of Transp. v. Beckner, 74 S.W.3d 98, 103 (Tex. App Waco 2002, no pet.). Accordingly, Chapter 21 s 60-day filing period is not jurisdictional. See id.; see also Middleton v. Gould, 952 F. Supp. 435, 438 (S.D. Tex. 1996); Comer v. Gates of Cedar Hill, No. 3-00-CV-2499-N, 2002 U.S. Dist. Lexis 16944, at *6-7 (N.D. Tex. Sept. 9, 2002).
The TDCJ argues that Guard failed to comply with either of these timelines, both of which it pleaded as affirmative defenses and as grounds for its plea to the jurisdiction and alternative summary judgment. Because the 60-day period is not jurisdictional, it cannot serve as the proper basis for a plea to the jurisdiction, and we cannot address it on interlocutory appeal. See Cozby v. City of Waco, 110 S.W.3d 32, 35 (Tex. App. Waco 2002, no pet.).
180-Day Period for Filing Administrative Complaints
The TDCJ contends that Guard failed to exhaust administrative remedies by untimely filing an administrative complaint.
Because Guard s complaint is dated August 24, 2001, any discriminatory acts must have occurred within the preceding 180 days, approximately February 25. Guard complains of acts occurring between April 2000 and July 2001. In April 2000, employee Larry Bitter commented that Guard was an old man, an old fart, and bellyaching. Supervisor Patrick O Shaughnessy may have made similar comments. During staff meetings, then inspector general John McAuliffe verbalized his desire to promote younger individuals and obtain fresh blood. Also during staff meetings, employee Edward McElyea heard McAuliffe state that management was old and young people need to take over. John Moriarty, then a deputy director, informed McElyea of the need to get rid of old people. In December 2000, McElyea heard Moriarty state that he did not want old investigators assisting with apprehension of escapees. In May 2000, Guard was reassigned. In August 2000, O Shaughnessy sent an inner-office letter to McAuliffe, which contained representations about Guard s abilities and spawned an investigation of Guard. In September 2000, Guard was removed from project director of the FUGINET program. In May 2001, O Shaughnessy told McElyea that, we can t wait for people to retire around here. On June 13, 2001, after filing a complaint with the TDCJ, Guard was notified of a permanent transfer.
Although several of these acts fall outside the 180-day period, Guard argues that the timeliness of a complaint can be inferred from the TCHR s issuance of a right-to-sue-letter. See Gorges Foodservice, Inc. v. Huerta, 964 S.W.2d 656, 664 (Tex. App. Corpus Christi 1997, pet. withdrawn); see alsoTex. Parks & Wildlife Dep t v. Dearing, 150 S.W.3d 452, 459 (Tex. App. Austin 2004, pet. denied). The TDCJ disagrees because:
Gorges held only that, in the absence of any evidence to the contrary, a jury could infer from the plaintiff s receipt of the Commission s right-to-sue-letter that his complaint was timely; it did not hold that issuance of a right-to-sue-letter creates a presumption of timeliness. Additionally, at least one Texas appellate court that addressed this precise point held that issuance of a right-to-sue-letter from the Commission cannot confer subject matter jurisdiction over a plaintiff s complaint when the plaintiff has failed to file his charge with the Commission within 180 days after the alleged adverse employment action, as required by section 21.202.
Manuel v. Sanderson Farms, Inc., 90 Fed. Appx. 714, 717 (5th Cir. 2004) (not designated for publication) (emphasis added) (discussing Gorges Foodservice); see Guevara v. H.E. Butt Grocery Co., 82 S.W.3d 550, 553 (Tex. App. San Antonio 2002, pet. denied) (rejecting the argument that a right to sue letter confers subject-matter jurisdiction ). We agree that a right-to-sue-letter neither creates a presumption of timeliness nor confers subject matter jurisdiction. See Manuel, 90 Fed. Appx. at 717; see also Guevara, 82 S.W.3d at 553. Rather, the letter constitutes notice of exhaustion. See Vela, 69 S.W.3d at 700 (citing City of Houston v. Fletcher, 63 S.W.3d 920, 923 (Tex. App. Houston [14th Dist.] 2002, pet. denied)).
Guard further argues that all of the alleged discriminatory acts are timely as part of a continuing violation. The continuing violation doctrine expands the scope of those discriminatory events that are actionable, as long as one of the events occurs within the 180-day period. Wal-Mart Stores v. Davis, 979 S.W.2d 30, 41 (Tex. App. Austin 1998, pet. denied) (citing Glass v. Petro-Tex Chem. Corp., 757 F.2d 1554, 1560-61 (5th Cir. 1985)). Under this doctrine, an unlawful employment practice manifests itself over time, rather than as a series of discrete acts. Id. at 41-42 (citing Webb v. Cardiothoracic Surgery Assocs. of N. Texas, P.A., 139 F.3d 532, 537 (5th Cir. 1998)). The 180-day period begins when acts supportive of a civil rights action are, or should be, apparent to a reasonably prudent person in the same or a similar position. Id. at 42. The focus is on what event should, in fairness and logic, have alerted the average layperson to act to protect his or her rights. Id.
However, discrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges. AMTRAK v. Morgan, 536 U.S. 101, 113, 122 S. Ct. 2061, 2072, 153 L. Ed. 2d 106 (2002) (emphasis added). Following Morgan, Texas courts apply the doctrine as long as there is 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. Cooper-Day v. RME Petroleum Co., 121 S.W.3d 78, 87 (Tex. App. Fort Worth 2003, no pet.) (emphasis added); see Ibezim v. Tex. Dep t of Health, No. 03-03-00308-CV, 2004 Tex. App. Lexis 6252, at *22-23 (Tex. App. Austin July 15, 2004, no pet.) (mem. op.); see also Vida v. Univ. of Tex. Houston Health Sci. Ctr., No. 14-01-01162-CV, 2002 Tex. App. Lexis 8432, at *2-3 (Tex. App. Houston [14th Dist.] Nov. 27, 2002, no pet.) (not designated for publication). Therefore, under Texas law, the continuing violation doctrine applies irrespective of hostile work environment claims.
As the TDCJ concedes, Guard s June 2001 transfer occurred within the 180-day period. It also appears that O Shaughnessy made comments in May 2001. Of the remaining alleged acts, those involving dismissals, demotions, investigations, transfers, disciplinary actions, and reassignments constitute discrete acts to which the continuing violation doctrine does not apply. See Pegram v. Honeywell, Inc., 361 F.3d 272, 280 (5th Cir. 2004); see also Bowers v. Edgewood Indep. Sch. Dist., Civil Action No: SA-05-CA-404-XR, 2005 U.S. Dist. Lexis 32037, at *16 (W.D. Tex. Oct. 4, 2005); Morgan, 536 U.S. at 114, 122 S. Ct. at 2073. Furthermore, Guard can only recover for retaliation to the extent that it occurred within the limitations period. Hamic v. Harris County W.C. & I.D. No., 36, 184 Fed. Appx. 442, 447 (5th Cir. 2006) (not designated for publication) (citing Pegram, 361 F.3d at 279-80).
All that remains are acts composed of allegedly ageist comments, which are not isolated employment decisions, or discrete acts. Cooper-Day, 121 S.W.3d at 87. We must examine those comments occurring outside the 180-day period to determine whether they are part of a continuing violation. In doing so, we consider three factors:
The first is subject matter. Do the alleged acts involve the same type of discrimination, tending to connect them in a continuing violation? The second is frequency. Are the alleged acts recurring (e.g., a biweekly paycheck) or more in the nature of an isolated work assignment or employment decision? The third factor, perhaps of most importance, is degree of permanence. Does the act have the degree of permanence which should trigger an employee s awareness of and duty to assert his or her rights, or which should indicate to the employee that the continued existence of the adverse consequences of the act is to be expected without being dependent on a continuing intent to discriminate?
Berry v. Bd. of Supervisors of L.S.U., 715 F.2d 971, 981 (5th Cir. 1983).
An analysis of these factors leads us to the conclusion that there is at least a fact issue as to whether the alleged acts, composed of ageist comments and the June 2001 transfer, are part of a continuing violation. First, these acts involve the same type of subject matter. See id.; see also Cooper-Day, 121 S.W.3d at 87. The TDCJ argues that these remarks are not in and of themselves ageist. We disagree. Each of these acts denotes age discrimination. It may also be implied that this discrimination contributed to the decision to permanently transfer Guard.
Relying on Morgan, the TDCJ contends that discrete acts, such as the transfer, cannot be combined with non-discrete acts, such as the remarks, to form a continuing violation. However, all that is required is that the acts be of the same type of discrimination.
Given [the] various restrictions on use of the continuing violation doctrine, the burden is upon [Plaintiff] to offer evidence that [he] suffered race-based harassment both prior to and during the filing period, that the incidents of harassment were related, and that the harassment was pursuant to an organized scheme.
Celestine v. Petroleos de Venezuella SA, 266 F.3d 343, 353 (5th Cir. 2001); see Lowery v. Carrier Corp., 953 F. Supp. 151, 157 (E.D. Tex. 1997). The record contains evidence that Guard suffered age discrimination both outside and inside the 180-day period.
Second, these acts occurred with frequency. See Berry, 715 F.2d at 981; see also Cooper-Day, 121 S.W.3d at 87. Guard contends that these discriminating comments were recurring rather than isolated. The record indicates that various remarks were made in April 2000, December 2000, and May 2001, but is unclear as to when any other comments were made and whether such remarks were recurring. In light of the fact that Guard cites April 2000 to July 2001 as the relevant time frame in which discriminatory acts occurred, and construing the pleadings in Guard s favor, the court could reasonably conclude that these remarks occurred continuously during this period. At a minimum, a fact issue exists as to this factor.
Citing Morgan, the TDCJ contends that the comments were not made by the same managers and Moriarty s comments were not related to Guard. We do not agree that Morgan stands for this proposition:
With respect to Morgan s hostile environment claim, the Court of Appeals concluded that the pre- and post-limitations period incidents involved the same type of employment actions, occurred relatively frequently, and were perpetrated by the same managers. To support his claims of a hostile environment, Morgan presented evidence from a number of other employees that managers made racial jokes, performed racially derogatory acts, made negative comments regarding the capacity of blacks to be supervisors, and used various racial epithets.
Morgan, 536 U.S. at 120, 122 S. Ct. at2076 (internal citations omitted). In analyzing the specific facts of the case, Morgan does not appear to mandate that comments be made by the same people or related to the plaintiff in order to be actionable. Rather, the fact that not all the incidents of harassment involved the same people does not show a lack of recurrence or frequency. Waltman v. Int l Paper Co., 875 F.2d 468, 475 (5th Cir. 1989). Acts may form a continuing violation if connected by common threads. Hadad v. Am. Airlines, No. 3:00-CV-0041-D, 2003 U.S. Dist. Lexis 1872 at *9 (N.D. Tex. Feb. 7, 2003) (mem.).
Third, these acts do not have the degree of permanence that would make Guard aware of the need to assert his rights. The mere fact that Guard may have been aware that he was being discriminated against does not imply that he should have known to assert his rights. See Lowery, 953 F. Supp. at 158. Guard could have believed [the] situation would improve, that it was not of a permanent nature, and that [he] could avoid having to sue [his] employer. Id. Guard s transfer is the only act that establishes any permanence and is within the 180-day period.
In summary, Guard cannot recover for discrete incidents that occurred outside the 180-day period. See Morgan, 536 U.S. at 110, 122 S. Ct. at 2070-71. Because a fact issue exists as to the remaining acts, the court did not erroneously deny the TDCJ s plea to the jurisdiction based on the timeliness of Guard s complaint. See Miranda, 133 S.W.3d at 227-28.
FAILURE TO STATE A CLAIM
The TDCJ argues that it is immune from suit because Guard has failed to show a prima facie case of discrimination or retaliation and so cannot establish a claim under the Labor Code.
However, in a plea to the jurisdiction, we consider evidence only when necessary to resolve the jurisdictional issues raised. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 555 (Tex. 2000). Guard s pleadings allege age discrimination and retaliation in violation of the Labor Code 21.051, 21.055. See Tex. Lab. Code Ann. 21.051, 21.055 (Vernon 2006). To waive sovereign immunity and confer subject matter jurisdiction under Chapter 21, an administrative complaint must be timely filed and an entity must qualify as an employer. See Sauls, 18 S.W.3d at 315; see also Funderburk, 188 S.W.3d at 234; Purdin, 143 S.W.3d at 293 n.2; Pegram, 361 F.3d at 281. We have already determined that both these requirements have been met. Thus, sovereign immunity has been waived and the trial court maintains subject matter jurisdiction. This case does not present a situation where we must explore the merits of Guard s claims. See State v. Lueck, 212 S.W.3d 630, 637-38 (Tex. App. Austin 2006, pet. filed).
Accordingly, no further jurisdictional issues remain for our determination. We overrule the TDCJ s first and second issues. The trial court s judgment is affirmed.
Before Chief Justice Gray,
Justice Vance, and
(Chief Justice Gray dissents with a note)*
Opinion delivered and filed April 11, 2007
*(Note by Chief Justice Gray: I am confident that the many errors necessary to arrive at this result will be adequately identified by the Attorney General s office and, if not subsequently corrected by the Texas Supreme Court, will also be identified by other courts presented with these issues, and the errors in the Court s opinion avoided. Accordingly I find it unnecessary to set out all the reasons, for there are several, that I cannot join the Court s opinion or judgment. Accordingly, I dissent. )
 The TDCJ points to no place in the record where Guard has alleged a hostile work environment claim. Guard s Brief fails to address this argument. Because the record does not indicate that Guard pleaded a hostile work environment claim, we do not address this issue. See Tex. R. App. P. 47.1.
 Chapter 21 is patterned after Title VII of the Civil Rights Act; therefore, we may look to federal law for guidance when interpreting Chapter 21. See Tex. Lab. Code Ann. 21.001 (Vernon 2006); see also Quantum Chem. Corp. v. Toennies, 47 S.W.3d 473, 476 (Tex. 2001).
 Chapter 21 was entitled the Texas Commission on Human Rights Act until the abolishment of the Commission on Human Rights. See Little v. Tex. Dep t of Crim. Justice, 148 S.W.3d 374, 377-78 (Tex. 2004). In 2004, the powers and duties of the Commission on Human Rights were transferred to the Texas Workforce Commission Civil Rights Division. Tex. Lab. Code Ann. 21.0015 (Vernon 2006). Because Guard s charge was filed with the TCHR prior to 2004, we will refer to the TCHR rather than the TWC.
 Suit may be based on claims contained in the complaint, any kind of discrimination like or related to the charge s allegations, and allegations that could reasonably be expected to grow out of the initial charges of discrimination. Fine v. GAF Chem. Corp., 995 F.2d 576, 578 (5th Cir. 1993) (quoting Fellows v. Universal Rest., Inc., 701 F.2d 447, 451 (5th Cir. 1983)).
 Morgan contrasted hostile work environment claims because they involve acts occurring 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. AMTRAK v. Morgan, 536 U.S. 101, 115, 122 S. Ct. 2061, 2073, 153 L. Ed. 2d 106 (2002).
 This list is not exhaustive. See Berry v. Bd. of Supervisors of L.S.U., 715 F.2d 971, 981 (5th Cir. 1983).
 Although Loweryaddresses hostile work environment claims, we find it instructive because Texas courts use the three Berry factors in cases where hostile work environment claims have not been pled. See Cooper-Day v. RME Petroleum Co., 121 S.W.3d 78, 87 (Tex. App. Fort Worth 2003, no pet.); see also Haliburton v. City of San Antonio, 974 S.W.2d 779, 782 (Tex. App. San Antonio 1998, no pet.); Lowery v. Carrier Corp., 953 F. Supp. 151, 157 (E.D. Tex. 1997).
 In Miranda, the Supreme Court examined the merits of the Mirandas claims because they had alleged a violation of the Texas Tort Claims Act, under which immunity from suit and immunity from liability are co-extensive. Tex. Dep t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 224 (Tex. 2004). This provision effectively creates a situation in which evaluating whether subject matter jurisdiction exists in a given case may require a court to examine the merits of a plaintiff's claims. Prairie View A&M Univ. v. Brooks, 180 S.W.3d 694, 703 (Tex. App. Houston [14th Dist.] 2005, no pet.).