Texas A&M University, Corpus Christi v. Neal Vanzante--Appeal from County Court at Law No 1 of Nueces County

NUMBER 13-04-252-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

TEXAS A&M UNIVERSITY,

CORPUS CHRISTI, Appellant,

v.

NEAL VANZANTE, Appellee.

On appeal from the County Court at Law No. 1

of Nueces County, Texas.

O P I N I O N

Before Justices Ya ez, Castillo and Garza

Opinion by Justice Garza

This is an appeal from the denial of a plea to the jurisdiction. Appellee, Neal Vanzante, sued appellant, Texas A&M University, Corpus Christi, for employment discrimination under the Texas Commission on Human Rights Act ( the Act ). See Tex. Lab. Code Ann. 21.001, et seq. (Vernon 1996). Appellant subsequently filed a plea to the jurisdiction, arguing that the trial court lacked subject matter jurisdiction because appellee did not file an administrative complaint within one hundred and eighty days of the alleged unlawful employment practice as required by the Act. See Tex. Lab. Code Ann. 21.202 (Vernon 1996). After reviewing the arguments and evidence presented by both parties, the trial court denied appellant s plea to the jurisdiction. Appellant now appeals to this Court. // We conclude that appellee filed his administrative complaint within the time period required by law and therefore affirm the trial court s order.

I. Background

The facts relevant to this appeal are largely uncontested. Neal Vanzante is a professor of accounting at Texas A&M University, Kingsville. In December 2000, Vanzante applied for a position at Texas A&M University, Corpus Christi ( the University ) to commence in the fall of 2001. In January 2001, Moustafa Abdelsamad, Dean of the College of Business at the University, instructed Vanzante that communications regarding his application for employment should be directed to Dr. Janet W. Tillinger, chair of the accounting department and chair of the department s search and selection committee. Sometime in April 2001, Vanzante learned through a third party that the position had been offered to a professor named Timothy McCoy. On April 11, 2001, Vanzante emailed Dean Abdelsamad, complaining that his application had not received due consideration. Vanzante complained, [I]t is difficult to understand how someone with my experience and credentials was not invited for an interview (especially given where I live) when compared to the experience and credentials of those ultimately hired. On April 16, 2001, Dean Abdelsamad emailed in response, Thanks for keeping me informed. As you may know, we filled all positions this year. It is [sic] excellent outcome considering the tight market for faculty in business. In a letter dated June 11, 2001, Dr. Tillinger informed Vanzante that he was not selected for any of the advertised positions and thanked him for applying to the College of Business. Vanzante claims that he received Dr. Tillinger s letter on June 21, 2001.

On December 7, 2001, Vanzante completed an employment intake questionnaire supplied by the Corpus Christi Human Relations Commission ( the Commission ) in which he complained of employment discrimination by the University. On December 17, 2001, Vanzante filed a verified charge of discrimination with the Commission. In a letter dated October 2, 2002, the Texas Commission on Human Rights informed Vanzante of his right to bring a private civil action in state court against the University. The letter advised Vanzante that any suit must be filed within sixty days of his receipt of the letter. Vanzante subsequently filed suit against the University.

II. Plea to the Jurisdiction

In its sole issue before this Court, the University argues that the trial court erred by denying its plea to the jurisdiction. According to the University, the trial court has no subject matter jurisdiction over the suit because Vanzante failed to file an administrative charge of discrimination within one hundred and eighty days after the alleged unlawful employment practice as required by the Act. See id.

A person claiming to be aggrieved by an unlawful employment practice may file a complaint with the Human Rights Commission. Schroeder v. Texas Iron Works, Inc., 813 S.W.2d 483, 486 (Tex. 1991). Such a complaint must be filed within one hundred and eighty days after the date the alleged practice occurred. Id. This time limit has been held to be mandatory and jurisdictional. Id. If the statutory guidelines have not been followed, the suit must be dismissed for lack of jurisdiction. See id. at 488. A. Standard of Review

Whether a court has subject matter jurisdiction is a legal question subject to de novo review. See Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex. 1998). When reviewing a trial court s order on a plea to the jurisdiction, we construe the pleadings in the plaintiff s favor and look to the pleader s intent. See County of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex. 2002). We are allowed to consider evidence pertinent to the jurisdictional inquiry. See id.

B. Analysis

As stated by the University, the key issue in this appeal is when the limitations period started to run. The University argues that the limitations period commenced to run no later than April 16, 2001, when Dean Abdelsamad informed Vanzante that all positions at the University had been filled. If the University is correct, the limitations period expired on October 13, 2001 and Vanzante s administrative complaint was filed untimely. See 21.202. According to Vanzante, the limitations period did not begin to run until June 21, 2001, when he received Dr. Tillinger s letter informing him that he was not selected for any of the University s advertised positions. If Vanzante is correct, the limitations period did not expire until December 18, 2001 and his administrative complaint was timely filed. See id.

The University relies on six cases to support its position. See Del. State Coll. v. Ricks, 449 U.S. 250, 258 (1980); Schoonover v. Consol. Freightways Corp. of Del., 49 F.3d 219, 223 (6th Cir. 1995, cert. denied); Specialty Retailers v. DeMoranville, 933 S.W.2d 490, 492 (Tex. 1996) (per curiam); Cooper-Day v. RME Petroleum Co., 121 S.W.3d 78, 83 (Tex. App. Fort Worth 2003, no pet.); Czerwinski v. Univ. of Tex. Health Sci. Ctr., 116 S.W.3d 119, 123 (Tex. App. Houston [14th Dist.] 2002, pet. denied); Byars v. City of Austin, 910 S.W.2d 520, 525 (Tex. App. Austin 1995, writ denied). None of the cases cited by the University compels this Court to conclude that the limitations period commenced to run on April 16, 2001. To the contrary, the cases cited by the University indicate that the limitations period began to run no earlier than June 21, 2001, when Vanzante received notice from the University s search and selection committee that his application for employment had been officially denied.

In Ricks, the United States Supreme Court was asked to determine whether a college professor timely complained under the civil rights laws that he had been denied academic tenure because of his national origin. Ricks, 449 U.S. at 252. Title VII, under which Ricks had filed suit, requires aggrieved persons to file a complaint with the Equal Employment Opportunity Commission ( EEOC ) within one hundred and eighty days after the alleged unlawful employment practice occurred. See id. at 256 (citing 42 U. S. C. 2000e-5(e)). To determine the timeliness of Ricks EEOC complaint, the Supreme Court had to identify precisely the unlawful employment practice of which Ricks complained. See id. at 257. The Supreme Court noted that although Ricks complaint only alleged a discriminatory denial of academic tenure, Ricks also complained of wrongful discharge at oral argument. See id. The Supreme Court rejected the wrongful-termination claim and held that the only alleged discrimination occurred and the filing limitations periods therefore commenced at the time the tenure decision was made and communicated to Ricks. Id. at 258. In reaching this holding, the Supreme Court noted that [t]he application of the general principles discussed herein necessarily must be made on a case-by-case basis. Id. at 258 n.9. Ultimately, the Supreme Court did not decide when the unlawful employment practice occurred in Ricks but instead concluded that the district court s decision was not erroneous because Ricks complaint was untimely regardless of which of the disputed dates was correct. See id. at 262, 262 n.17. The Supreme Court cautioned that the limitations periods should not commence to run so soon that it becomes difficult for a layman to invoke the protection of the civil rights statutes. Id. at 262 n.16. Given this admonishment and the Supreme Court s emphasis that notice of the employment decision should be predicated on a formal and official decision, we conclude that the Ricks opinion does not favor the University.

The University argues that the limitations period should run from the date of Dean Abdelsamad s email to Vanzante, but we conclude that the University s employment decision was communicated to Vanzante by Dr. Tillinger s letter, not by Dean Abdelsamad s email. Dean Abdelsamad s email simply responded to Vanzante s email, in which Vanzante complained (based on information from an unnamed third party) that his application had not been given due consideration. Rather than informing Vanzante that his application had in fact been denied, Dean Abdelsamad simply thanked Vanzante for keeping . . . [him] informed. Dean Abdelsamad s email was not unequivocal notice that Vanzante s application had been rejected, as the University argues, because it said only that all positions had been filled. Moreover, Vanzante had been advised that any communication regarding his application should be directed to the search and selection committee, which suggests that the committee was the official decision-making entity. In Schoonover, the next case cited by the University, a three-judge panel of the Sixth Circuit was asked to determine when the statute of limitations begins to run for a hybrid 301/duty of fair representation action in the context of an arbitration proceeding. See Schoonover, 49 F.3d at 221 22 (citing 29 U.S.C. 160(b)). According to the Sixth Circuit, The better course is to permit the plaintiff claiming inadequate representation in an arbitration to wait until there has been some adverse outcome in the arbitration before seeking the intervention of a federal court. Id. As the court explained, requiring exhaustion of the grievance process is appropriate because the arbitration award may make the employee whole, in spite of even the most egregious union failures. Id. at 222(citing Lucas v. Mountain States Tel. & Tel., 909 F.2d 419, 421 (10th Cir. 1990) (per curiam)). To require otherwise would undermine the strong national policy favoring nonjudicial resolution of labor disputes by penalizing those who try to resolve their disputes through the grievance process before filing suit in federal court. Id. The court held that while formal notice of a[n arbitration] decision to the grievant is not required, a formal decision of some sort by the [arbitration] panel is required to begin the running of the statute of limitations. Id. at 223.

The University argues that under Schoonover, formal notice is not required to start the running of the statute of limitations. Schoonover involved a decision to terminate employment and a subsequent arbitration proceeding that affirmed the termination. See id. at 221. The Schoonover court was asked to decide when the statute of limitations began to run for a claim of unfair representation against a union in the context of an arbitration proceeding. See id. at 221 23. The court held that there was no formal arbitration decision until the [arbitration] panel reduced it to writing as required by its rules. See id. at 223. We do not find Schoonover inconsistent with the conclusion we have reached in this case. We have determined that Dean Abdelsamad s email did not provide unequivocal notice of the University s adverse hiring decision. The first unequivocal notice Vanzante received of the University s decision came from Dr. Tillinger s letter. The University also relies on DeMoranville, 933 S.W.2d at 492, arguing that this Court would create a new rule of law and contradict Texas Supreme Court authority if it holds that the limitations period runs from the date a claimant has reason to believe discrimination has occurred. In DeMoranville, the Texas Supreme Court held that the limitations period begins when an employee is informed of the allegedly discriminatory employment decision, not when the decision comes to fruition. Id. at 493. The plaintiff in DeMoranville had been informed before her termination that she would be terminated if she did not return to work within one year of taking medical leave. See id. When the plaintiff did not return to work within one year, she was terminated. See id. The supreme court held that the limitations period began when the employee received notice of the employer s termination policy as applied to her and not when the employee was actually terminated. See id.

Again, we do not find DeMoranville in conflict with our conclusion in the present case. Our holding is consistent with well-settled precedent of the United States Supreme Court and the Texas Supreme Court holding that the limitations period commences to run when an adverse employment decision is made official and communicated to the aggrieved party. See Ricks, 449 U.S. at 258; DeMoranville, 933 S.W.2d at 493.

In Cooper-Day, the fourth case relied upon by the University, the Fort Worth court was asked to determine whether a plaintiff had timely filed her administrative complaint as mandated by the Act. See Cooper-Day, 121 S.W.3d at 81. The plaintiff asserted gender discrimination claims for constructive discharge and unequal pay. See id. The court held that the plaintiff s administrative complaint was not filed within one hundred and eighty days after the date the alleged unlawful employment practices occurred. See id. In reaching this conclusion, the court also noted that there was no evidence to support the plaintiff s constructive discharge and unequal pay causes of action on a continuing violation theory. See id. at 86 88.

The University argues that under Cooper-Day, the limitations period for an employment discrimination complaint begins when the allegedly discriminatory employment decision has been made and communicated to the plaintiff. We agree and find that our decision in the present case is consistent with the holding in Cooper-Day.

Czerwinski, the fifth case cited by the University, involved the question of whether compliance with the filing provisions of the Act are mandatory and jurisdictional. See Czerwinski, 116 S.W.3d at 123. In Czerwinski, the court was asked to determine the effect of a late administrative filing under the Act. See id. at 120. The court held that a timely filed administrative complaint was necessary to confer subject matter jurisdiction on the trial court. See id. at 122. Czerwinski addressed the effect of noncompliance with the provisions of the Act, see id. at 122, an issue which is well settled and undisputed in this case.

In Byars, the sixth case cited by the University, the Austin court held that under the Act, the limitations period for an administrative complaint commenced to run when an employee was terminated and was not tolled while the employee pursued the employer s internal grievance process. Byars, 910 S.W.2d at 525. The University argues that under Byars, the limitations period was not tolled on Vanzante s claim after the University s decision. For the reasons discussed below, we need not address this contention to decide the merits of this case. We therefore decline to do so. See Tex. R. App. P. 47.1.

We are guided by the precedent of the United States Supreme Court. In Ricks, the Supreme Court explained that the determination of when an alleged unlawful practice occurred necessarily must be made on a case-by-case basis. Ricks, 449 U.S. at 258 n.9. The high Court also warned that the limitations periods should not commence to run so soon that it becomes difficult for a layman to invoke the protection of the civil rights statutes. Id. at 262 n.16. We conclude that the University s decision was made official and communicated to Vanzante on June 21, 2001, when the University s search and selection committee informed him that his application for employment had been denied. Accordingly, the limitations period did not commence to run until that date. Because Vanzante s administrative complaint was timely, we need not discuss whether the limitations period was tolled after June 21, 2001. See Tex. R. App. P. 47.1.

III. Conclusion

The order of the trial court is affirmed.

_______________________

DORI CONTRERAS GARZA,

Justice

Opinion delivered and filed

this the 17th day of March, 2005.