Les Vela v. Waco Independent School District--Appeal from 74th District Court of McLennan County

IN THE

TENTH COURT OF APPEALS

No. 10-00-187-CV

LES VELA,

Appellant

v.

WACO INDEPENDENT

SCHOOL DISTRICT,

Appellee

From the 74th District Court

McLennan County, Texas

Trial Court # 95-3214-3

OPINION DENYING REHEARING

Waco Independent School District (WISD) urges in a motion for rehearing that we withdraw our original opinion and issue a new opinion holding that Les Vela was required to satisfy a dual exhaustion requirement, i.e., that she must exhaust her administrative remedies before both the Texas Commission on Human Rights (TCHR) and the Commissioner of Education before the jurisdiction of a district court can attach. We reject WISD s proposed holding. We take this opportunity, however, to offer further reasons supporting our opinion dated January 30, 2002.

The Appeals Statutes Of The Education Code

As already noted, WISD believes Vela must exhaust her administrative remedies under the Education Code before she can prosecute her Texas Commission on Human Rights Act (TCHRA) employment-discrimination claim. Section 7.057 of the Education Code is the current statute that governs appeals to the Commissioner of Education. Tex. Educ. Code Ann. 7.057 (Vernon Supp. 2002). It states in pertinent part:

(a) Except as provided by Subsection (e), a person may appeal in writing to the commissioner if the person is aggrieved by:

(1) the school laws of this state; or

(2) actions or decisions of any school district board of trustees that violate:

(A) the school laws of this state; or

(B) a provision of a written employment contract between the school district and a school district employee, if a violation causes or would cause monetary harm to the employee.

. . .

(f) In this section:

. . .

(2) School laws of this state means Title 1 and this title and rules adopted under those titles.

Id. (emphasis added). Although former section 11.13 of the Education Code is the statute that controls in this case, we look to a significant change the Legislature made when it replaced section 11.13 with the current statute. // The language of section 7.057 that we highlight is an important change from the language used in section 11.13. The former statute reads in part:

(a) Except in cases of student disciplinary actions under Section 21.301 or 21.3011 of this code, persons having any matter of dispute among them arising under the school laws of Texas or any person aggrieved . . . by actions or decisions of any board of trustees or board of education may appeal in writing to the commissioner of education, who, after due notice to the parties interested, shall hold a hearing and render a decision without cost to the parties involved, but nothing contained in this section shall deprive any party of any legal remedy.

Id. 11.13 (Vernon 1991) (repealed by Acts 1995, 74th Leg., ch. 260 1, 60, effective May 30, 1995) (emphasis added). The Legislature in re-writing the appeals statute clarified the circumstances under which a person may appeal to the Commissioner of Education regarding an action or decision of a school board of trustees.

Under section 7.057, one in Vela s circumstances could appeal the WISD board s denial of her grievance only if the board s decision violated either the school laws of this state, or a provision of a written employment contract between the school district and a school district employee, if a violation causes or would cause monetary harm to the employee. Id. 7.057(a)(2)(A), (B). The new statute defines the phrase school laws of this state to mean Title 1 and this title and rules adopted under those titles. Id. 7.057(f)(2).

Vela has never claimed that the board s decision violated the school laws of Texas as now defined by section 7.057. Neither has WISD said what school law the board relied on when it denied Vela s grievance. If anything, Vela s grievance alleged that WISD violated the TCHRA when it reassigned her from principal of an elementary school to a position at the district s administrative offices. The TCHRA is a law codified in Chapter 21 of the Labor Code and is not a school law of Texas. Thus, Vela could not meet the requirement under section 7.057(a)(2)(A) to pursue an appeal to the Commissioner of Education. Moreover, it is undisputed that Vela s case does not concern a provision of a written employment contract between the school district and a school district employee, if a violation causes or would cause monetary harm to the employee. Id. 7.057(a)(2)(B). Accordingly, under section 7.057, Vela s TCHRA claim would not be under the purview of the appeals process under the Education Code.

We recognize that our analysis is forward-looking in determining the Legislature s intent, but we believe this is proper in light of the Austin court s recent pronouncement of the growing concern that the Commissioner of Education is inundated with numerous appeals:

This Court must interpret the intent of the legislature as expressed in the plain language of a statute; we do not sit to assess the wisdom or desirability of the legislative act. There is no question that by drafting section 7.057 the legislature intended to limit the number of grievances that the Commissioner could hear.

Smith v. Nelson, 53 S.W.3d 792, 796 (Tex. App. Austin 2001, no pet. h.) (emphasis added). The Austin court looked to excerpts from hearings held in 1994 where legislators discussed amendments to the Education Code:

While not conclusive, the following excerpts from hearings held in 1994 to discuss amendments to the Education Code reveal an unmistakeable intent to limit appeals to the Commissioner.

Then-Senator Bill Ratliff, chairman of the committee overseeing the Central Education Agency, stated:

[T]he current situation is that anytime anyone has ... a dispute with the school board, even if that dispute is over board rules, ... the appeal is to the Commission[er]. Ah, and that certainly is a hefty load of appeals coming to the Commissioner.... The final appellate body having to do with ... contract disputes ... that should come to the Commissioner. But ... I'm in hopes that we can stop the appeals from board rules from coming to the State.

Joint Select Committee to Review the Central Education Agency (Jan. 14, 1994) (page 7 of transcript of tape 3, sides 1 and 2, of the hearing).

In a later hearing, Lonnie Hollingsworth, Director of Legislation for the Texas Classroom Teachers Association, testified before the committee, and the following discussion took place between Hollingsworth, Lionel Meno, former Commissioner of Education, and Senator Ratliff:

Ratliff: Frankly I was I did not have in mind teacher contracts or teacher disputes when I wrote this. What I was trying to get away from, I understand that there are all kinds of other things, any dispute having any disagreement anybody has with a school board action now, can be appealed to the Commissioner.

Meno: Such, such as

Ratliff: No matter whether it's, whether it's state law or rule.

Meno: Such as somebody is coaching at X school and they're moved to coach at Y school, and they bring an appeal 'cause they don't like the way that they were transferred.

Hollingsworth: And the Commissioner in those circumstances has the discretion over whether or not he will exercise jurisdiction, and he can refuse to exercise jurisdiction in those things.

Ratliff: But it still

Hollingsworth: He's still got

Ratliff: it still clogs up the system and -

Hollingsworth: He's gotta, he's gotta hear it enough to decide whether or not he has jurisdiction, and that's why I, I have no problem with limiting appeals of things where there's no legal right affected.

Joint Select Committee to Review the Central Education Agency (Aug. 23, 1994) (page 18 of transcript of tape 4 of the hearing).

Id. at n.3, 796 (emphasis in original). Our conclusion that Vela should not be required to pursue a section 11.13 appeal when another administrative remedy is provided is wholly consistent with the Legislature s act in limiting the number and type of appeals that the Commissioner of Education hears.

Section 21.211 Of The Labor Code

We have reiterated that Vela was not required to appeal the WISD board of trustees denial of her grievance by following the remedies in former section 11.13. We have shown that this conclusion makes even more sense after examining section 7.057, the current version of the appeals statute in the Education Code. But in its motion for rehearing, WISD now argues that section 21.211 of the Labor Code applies to Vela s situation because her attempted appeal to the Commissioner of Education constituted an election of her remedies regarding her discrimination claim, and therefore she must exhaust the administrative remedies under section 11.13 before filing her TCHRA claim in a district court. Section 21.211, entitled election of remedies, provides:

A person who has initiated an action in a court of competent jurisdiction or who has an action pending before an administrative agency under other law or an order or ordinance of a political subdivision of this state based on an act that would be an unlawful employment practice under this chapter may not file a complaint under this subchapter for the same grievance.

Tex. Lab. Code Ann. 21.211 (Vernon 1996). Notably, WISD originally argued that section 21.211 did not apply to Vela s case; WISD said in its brief:

Further, the election of remedies is inapplicable in this case. The election of remedies doctrine prohibits plaintiffs from obtaining double recovery on the same facts by pursuing inconsistent causes of action or statutory remedies. . . . Here, there is no conflict or inconsistency in requiring [Vela] to pursue an appeal to the Commissioner of Education and then filing suit under the TCHRA if she is not satisfied with the result at the Commissioner s level.

(Appellee s Brief P. 10) (emphasis added).

This excerpt illustrates that WISD understands that Vela s appeal to the Commissioner of Education is not a remedy or cause of action that would enable her to recover damages for her discrimination claim. Vela v. Waco Indep. School Dist., No. 10-00-00187-CV, slip op. at 11, 2002 WL 122742, at *6 (Tex. App. Waco Jan. 30, 2002, no pet. h.). The San Antonio court has consistently held that the purpose of section 21.211 is to preclude a plaintiff from suing a defendant-employer for a non-TCHRA cause of action for conduct arising from the same facts as employment discrimination and then pursuing a claim of employment discrimination through the administrative review system established under the TCHRA. Perez v. Living Centers-Devcon, Inc., 963 S.W.2d 870, 874 (Tex. App. San Antonio 1998, pet. denied); see also Gonzales v. Willis, 995 S.W.2d 729, 737-38 (Tex. App. San Antonio 1999, no pet.).

WISD contends that even though the Commissioner of Education cannot finally adjudicate [Vela s employment-discrimination claim under the TCHRA] or grant full relief [on that claim,].. . . [her claim] simply by [its] nature, [is not] outside the Commissioner s jurisdiction. Texas Educ. Agency v. Cypress-Fairbanks, 830 S.W.2d 88, 91 (Tex. 1992). But that is precisely our point. Vela s appeal to the Commissioner is not a non-TCHRA cause of action in which she can receive full relief, and therefore even though Vela started to pursue a section 11.13 appeal, section 21.211 could not preclude her from abandoning that appeal and pursuing her discrimination claim under the TCHRA administrative review system. Perez, 963 S.W.2d at 874; Gonzales, 995 S.W.2d at 737-38. Thus, for this further reason we again conclude that section 21.211 is inapplicable here.

Vela s Exhaustion Of Administrative Remedies Under The TCHRA

There is no question that Vela received a right-to-sue letter from the TCHR. Thus, when Vela received notice of her right to file a civil action against WISD, she had exhausted her administrative remedies under the TCHRA. Tex. Lab. Code Ann. 21.254; City of Houston v. Fletcher, No. 14-01-00159-CV, slip op. at 4, 2002 WL 27406, at *3 (Tex. App. Houston [14th Dist.] Jan. 10, 2002, no pet. h.) (finding that a right-to-sue letter from the Texas Commission on Human Rights is notice of the complainant s exhaustion of the administrative remedies under the TCHRA). WISD is correct in noting that the Fourteenth Court of Appeals said that receipt of a right-to-sue letter is not an element of the administrative review scheme under the TCHRA, but the court went on to say that the letter itself is notice of exhaustion of those remedies. Id. WISD s contention that Vela did not plead the requisite facts to confer jurisdiction on the district court is a matter that WISD should have taken up under Rule of Civil Procedure 91 which governs special exceptions. Tex. R. Civ. P. 91. If WISD is arguing that Vela omitted certain facts or evidence from its pleadings, it should have filed a special exception to force Vela to plead those facts.

Conclusion

Having addressed WISD s motion for rehearing and having demonstrated additional reasons why our opinion dated January 30, 2002, should stand, we deny the motion.

BILL VANCE

Justice

Before Chief Justice Davis,

Justice Vance, and

Justice Gray (Justice Gray would grant the motion for rehearing

and does not join in this opinion denying rehearing)

Motion denied

Order issued and filed February 27, 2002

Do not publish