THE CITY OF LA JOYA, TEXAS v. SHEILA ORTIZ--Appeal from 332nd District Court of Hidalgo County

NUMBER 13-06-401-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG

THE CITY OF LA JOYA, TEXAS, Appellant,

 

v.

 

SHEILA ORTIZ, Appellee.

On appeal from the 332nd District Court of Hidalgo County, Texas.
MEMORANDUM OPINION
Before Justices Ya ez, Rodriguez, and Garza
Memorandum Opinion by Justice Garza

This is an interlocutory appeal from the denial of a plea to the jurisdiction. See Tex. Civ. Prac. & Rem. Code Ann. 51.014(a)(8) (Vernon Supp. 2006). Appellee, Sheila Ortiz, sued appellant, the City of La Joya (the "City"), under the Texas Commission on Human Rights Act (TCHRA), alleging unlawful employment practices and retaliation. See Tex. Lab. Code Ann. 21.051, 21.055 (Vernon 2006). The City filed a plea to the jurisdiction, contending that Ortiz's administrative complaint was untimely filed. See Tex. Lab. Code Ann. 21.202 (Vernon 2006) (requiring that claims under the TCHRA must be filed not later than the 180th day after date alleged unlawful employment practice occurred). The City also alleged that Ortiz "failed altogether to file an administrative charge involving retaliation." The trial court denied the City's plea to the jurisdiction. This appeal ensued. By three issues, the City contends the trial court erred in denying its plea to the jurisdiction. We affirm.

I. Factual Background

Sheila Ortiz worked as a radio dispatcher for the City of La Joya Police Department. (1) Ortiz alleges that during her employment with the City she was sexually harassed by her supervisor, Chief of Police, Isidro Casanova. She claims that on several occasions, from May 2002 through May 2004, she was forced by Casanova to perform oral sex on him and engage in unprotected sexual intercourse with him. In May 2004, Ortiz reported the sexual harassment to the City. Ortiz also filed a complaint with the Texas Workforce Commission and the Equal Employment Opportunity Commission ("EEOC"). After the Texas Workforce Commission dismissed her complaint and issued a right-to-sue letter, Ortiz filed this suit against the City.

II. Standard of Review

 

A plea to the jurisdiction contests the trial court's authority to determine the subject matter of the cause of action. 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 reviewed de novo. Tex. Natural Res. Conservation Comm'n v. IT-Davy, 74 S.W.3d 849, 855 (Tex. 2002). Likewise, whether undisputed evidence of jurisdictional facts establishes a trial court's jurisdiction is also a question of law that we review de novo. Tex. Dept. of Parks and Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004). If, as in the present case, a jurisdictional challenge implicates the merits of the plaintiff's cause of action and relevant evidence is submitted by the parties, the trial court reviews the evidence to determine whether a fact issue exists. Id. at 227 (citing Bland, 34 S.W.3d at 555). (2) If the relevant evidence is undisputed or fails to raise a fact question on the jurisdictional issue, the trial court rules on the plea to the jurisdiction as a matter of law. Id. at 228. However, if the evidence creates a fact question regarding the jurisdictional issue, then the trial court cannot grant the plea to the jurisdiction and must allow the fact finder to resolve the dispute. Id. at 227-28.

In Miranda, the supreme court recognized that a trial court's review of a plea to the jurisdiction challenging the existence of jurisdictional facts "mirrors" that of a traditional summary judgment. Id.; Tex. R. Civ. P. 166a(c). The Miranda court explained that, by requiring the State to meet the summary judgment standard of proof, "we protect the plaintiffs from having to 'put on their case simply to establish jurisdiction.'" Miranda, 133 S.W.3d at 228 (quoting Bland, 34 S.W.3d at 554). Under this procedure, the burden is on the defendant to put forth evidence establishing as a matter of law that the trial court lacks jurisdiction. Id.; Tex. R. Civ. P. 166a. The burden then shifts to the plaintiff to demonstrate that there is a disputed issue of material fact regarding the jurisdictional issue. Miranda, 133 S.W.3d at 228. The defendant cannot simply deny the existence of jurisdictional facts and force the plaintiff to raise a fact issue. See Johnson v. Brewer & Pritchard, P.C., 73 S.W.3d 193, 207 (Tex. 2002); see also County of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex. 2002) ("In deciding a plea to the jurisdiction, a court may not weigh the claims' merits but must consider only the plaintiffs' pleadings and evidence pertinent to the jurisdictional inquiry.").

III. Timeliness of Complaint

In its first issue, the City contends the trial court erred in denying its plea to the jurisdiction because Ortiz's complaint was untimely filed. See Tex. Lab. Code Ann. 21.202.

Pursuant to the statute, a complaint filed under the TCHRA "must be filed not later than the 180th day after the date the alleged unlawful employment practice occurred." Id. 21.202(a). "The commission shall dismiss an untimely complaint." Id. 21.202(b). As a general rule, when "must" is followed by a noncompliance penalty, it is construed as mandatory. Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 493 (Tex. 2001). Before suing in state court, an employee must exhaust her administrative remedies under the Act by first filing a complaint with the TCHR within 180 days of the alleged discriminatory act. Schroeder v. Tex. Iron Works, Inc., 813 S.W.2d 483, 485 (Tex. 1991); see Tex. Lab. Code Ann. 21.202(a). This limitations period is mandatory and jurisdictional. Specialty Retailers, Inc. v. DeMoranville, 933 S.W.2d 490, 492 (Tex. 1996); Schroeder, 813 S.W.2d at 486. Failure to timely file an administrative complaint deprives Texas trial courts of subject matter jurisdiction. Czerwinski v. Univ. of Tex. Health Science Ctr., 116 S.W.3d 119, 121 (Tex. App.-Houston [14th Dist.] 2002, pet. denied).

In its plea, the City argued that the last alleged act of discrimination occurred on May 1, 2004 and that Ortiz's administrative complaint was untimely filed because it was not received by the Texas Workforce Commission until November 1, 2004, 184 days after the date of the last act of discrimination. The City argued that Ortiz's complaint should have been filed no later than October 28, 2004. Ortiz responded that because she mailed the administrative complaint on October 28, 2004, she complied with the 180-day filing requirement of section 21.202. See Tex. Lab. Code Ann. 21.202. In addition, Ortiz presented evidence that the last alleged act of discrimination did not occur on May 1, 2004, but occurred sometime after May 1. Thus, Ortiz contended the filing deadline would not have been October 28, but some time in the first week of November 2004.

On appeal, the City re-urges its contention that Ortiz's complaint was untimely filed, and additionally argues that mailing the complaint does not constitute filing for purposes of a discrimination claim. See Taylor v. Gen. Tel. Co., 759 F.2d 437, 440-42 (5th Cir. 1985) (concluding that "'mailing' may not be construed as 'filing' for purposes of Title VII."). (3) Whether mailing a complaint constitutes filing for purposes of determining timeliness of a complaint is a question we need not decide. The Texas Workforce Commission-Civil Rights Division recently clarified that "[f]or the purpose of satisfying the filing requirements of Texas Labor Code 21.201 . . . timeliness of the complaint shall be determined by the date on which the complaint is received by the local commission." 40 Tex. Admin. Code 819.71(3). Accordingly, we proceed with the determination of whether a fact issue exists regarding the date of the last act of discrimination.

As evidence that the last act of discrimination occurred after May 1, and in turn, that the complaint was timely filed, Ortiz presented her Intake Questionnaire, her sworn affidavit, and Charge of Discrimination, each providing that the last act of discrimination occurred "1ST Week of May, 2004," "early May," and "from March 2002 to May 2004." (4) The Charge of Discrimination also provided that the latest date the discrimination took place was "05/01/2004." (5) Ortiz also submitted an affidavit to the trial court, dated April 7, 2006, in which she asserts that "the last incident of harassment did not occur on May 1, 2004, but some time after May 1, 2004." (6) We conclude this evidence raises an issue of material fact regarding the date of the last act of discrimination and the timeliness of the complaint. Further, the fact that the Texas Workforce Commission issued a right-to-sue letter, instead of dismissing the complaint as untimely, is additional evidence that the complaint was timely filed. See Gorges Foodservice, Inc. v. Huerta, 964 S.W.2d 656, 664 (Tex. App.-Corpus Christi 1997, pet. withdrawn) (jury could infer timely filing of complaint from issuance of right-to-sue letter); see also Tex. Lab. Code Ann. 21.202(b) (directing TCHR to dismiss untimely claims). (7) This evidence creates a genuine issue of material fact regarding whether Ortiz timely filed her complaint. Therefore, we conclude the trial court did not err in denying the City's plea to the jurisdiction. The City's first issue is overruled. IV.

In its second issue on appeal, the City contends Ortiz's April 7, 2006 affidavit is "irrelevant to the issue of jurisdiction" because it was not submitted to the Texas Workforce Commission. However, the City has failed to provide appropriate references to authority in support of its position. Accordingly, we overrule the City's second issue because it is inadequately briefed. See Tex. R. App. P. 38.1(h). We nevertheless note that the City's argument is without merit. When addressing a plea to the jurisdiction challenging the existence of jurisdictional facts, we must consider any relevant evidence submitted by the parties when necessary to resolve the jurisdictional issues raised. Miranda, 133 S.W.3d at 226 (emphasis added) (citing Bland, 34 S.W.3d at 555)). The affidavit is clearly relevant in resolving the jurisdictional issue. The City's second issue is overruled.

V.

In its third issue, the City alleges that Ortiz was jurisdictionally barred from bringing her retaliation claim before the trial court because the claim was not raised in her Charge of Discrimination. Ortiz responds that her retaliation claim is not jurisdictionally barred because the claim is reasonably related to the contentions raised in her Charge of Discrimination.

A lawsuit under the Act is limited to claims made in the discrimination complaint and "factually related claims that could reasonably be expected to grow out of the Commission's investigation of the charge." Johnson v. Hoechst Celanese Corp., 127 S.W.3d 875, 878 (Tex. App.-Corpus Christi 2004, no pet.); Thomas v. Clayton Williams Energy, Inc., 2 S.W.3d 734, 738 (Tex. App.-Houston [14th Dist.] 1999, no pet.) (citing Fine v. GAF Chem. Corp., 995 F.2d 576, 578 (5th Cir. 1993)). It is unnecessary for a plaintiff to exhaust administrative remedies prior to urging a retaliation claim growing out of an earlier charge; the district court has ancillary jurisdiction to hear such a claim when it grows out of an administrative charge that is properly before the court. See Elgaghil v. Tarrant County Junior College, 45 S.W.3d 133, 142 (Tex. App.-Fort Worth 2000, pet. denied); Thomas, 2 S.W.3d at 738.

Ortiz's administrative charge filed with the Texas Workforce Commission and the EEOC only alleges that unlawful employment practices had been taken against her based on her sex and based on "T[CHR] Act." The charge makes no mention of any retaliation claims. However, Ortiz's Intake Questionnaire stated a claim for retaliation. The questionnaire stated that after she reported the sexual harassment to the City Administrator and Finance Director, Chief Casanova's sister, Gracie Muniz, who is also a City of La Joya Police Department employee, threatened to kill her. (8) Ortiz raises the same retaliation complaint in her live pleading.

Although the charge itself contained no allegations regarding retaliatory practices being taken against Ortiz, the Intake Questionnaire did. Further, the basis of Ortiz's retaliation claim, that she was threatened as a result of filing her sexual harassment complaint, could be expected to grow out of her charge. Tex. Lab. Code Ann. 21.201(e), (f); Thomas, 2 S.W.3d at 738. Thus, it was unnecessary for Ortiz to file a second complaint. As a result, Ortiz exhausted her administrative remedy for her retaliation complaint. The City's third issue is overruled.

The order of the trial court is affirmed.

 

DORI CONTRERAS GARZA,

Justice

 

Memorandum Opinion delivered and

filed this the 1st day of February, 2007.

1. Ortiz resigned from her employment with the City in 2005 due to an incident unrelated to this suit.

2. In deciding motions to dismiss for lack of subject matter jurisdiction, the trial court may consider affidavits, allow further discovery, hear oral testimony, or conduct an evidentiary hearing. See Texas Dept. of Parks and Wildlife v. Miranda, 133 S.W.3d 217, 228 n.6 (Tex. 2004).

3. "Because one purpose of [chapter 21] is to bring Texas law in line with federal laws addressing discrimination, federal case law may be cited as authority." Specialty Retailers, Inc. v. DeMoranville, 933 S.W.2d 490, 492 (Tex. 1996).

4. The City attempts to discount Ortiz's Intake Questionnaire as evidence because it is unsworn, and insists that we look only to the formal, sworn Charge of Discrimination. However, we note that the City raised this concern in its statement of facts and procedural history, did not raise it in its discussion of this issue, and further failed to provide any authority in support of its contention. We need not address this contention because it was inadequately briefed. See Tex. R. App. P. 38.1(h).

 

In any event, we note that complaints filed with the Commission may be "amended to cure technical defects or omissions, including failure to verify the complaint . . . ." Brammer v. Martinaire, Inc., 838 S.W.2d 844, 847 (Tex. App.-Amarillo 1992, no writ). Further, amendments made to complaints relate back to the date the original complaint was filed with the Commission. Hennigan v. I.P. Petroleum Co., 858 S.W.2d 371, 373 (Tex. 1993) (holding that a verified complaint relates back to, and satisfies any deficiencies in an unverified questionnaire); Brammer, 838 S.W.2d at 847. Thus, the verified Charge of Discrimination subsequently filed by Ortiz relates back to, and satisfies any deficiencies, in the unverified Intake Questionnaire. See Hennigan, 858 S.W.2d at 373; Brammer, 838 S.W.2d at 847; see also Tex. Lab. Code Ann. 21.201(e), (f) (Vernon 2006). Consequently, there is no merit in the City's contention.

5. We question whether the formal Charge of Discrimination was actually completed by Ortiz or by the Texas Workforce Commission. The regular practice "is to require an aggrieved party to complete a questionnaire concerning his charge and submit it to [the Commission]. The Commission thereafter prepares a formal charge and sends this to the complainant to be reviewed and signed under oath." Brammer, 838 S.W.2d at 846.

6. By its second issue on appeal, the City contends this affidavit is "irrelevant to the issue of jurisdiction" because it was not submitted to the Texas Workforce Commission. However, because we overrule the City's second issue, we conclude the affidavit was relevant in resolving the jurisdictional issue.

7. Although the Commission dismissed Ortiz's complaint, it specified "Other" as its reason for the dismissal even though it could have been dismissed based on the untimeliness of the claim had the Commission determined the complaint was untimely.

8. As this is a plea to the jurisdiction, we need not make a determination on the merits of Ortiz's retaliation claim.