NUMBER 13-11-00563-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
McALLEN INDEPENDENT SCHOOL DISTRICT, Appellant,
v.
ROSA ESPINOSA, Appellee.
On appeal from the 389th District Court of Hidalgo County, Texas.
MEMORANDUM OPINION Before Chief Justice Valdez and Justices Rodriguez and Garza Memorandum Opinion by Justice Rodriguez Appellant McAllen Independent School District (MISD) challenges the trial court's
denial of its plea to the jurisdiction in this employment discrimination case filed by
appellee Rosa Espinosa. By one issue, MISD argues that the trial court erred in not
dismissing Espinosa's sex discrimination and retaliation claims because she failed to file a formal administrative charge within 180 days of the allegedly discriminatory conduct, as
required by the Texas Commission on Human Rights Act (CHRA).1 See TEX. LAB. CODE
ANN. § 21.202 (West 2006). We reverse and render judgment dismissing Espinosa's
claims for lack of jurisdiction.
I. Background
Espinosa was employed by MISD as a counselor until her termination in 2009.
Espinosa alleges that, during her employment, she was subjected to sexual harassment
at a May 2002 staff meeting. In connection with that harassment, Espinosa filed a
charge of discrimination with the Texas Commission on Human Rights (TCHR) and Equal
Employment Opportunity Commission (EEOC) on February 23, 2003. In her charge,
Espinosa stated that she had been subjected to sex discrimination and retaliation. She
alleged the following facts in her charge, in particular:
I have been subjected to continuous sexual, sexist, and racial remarks from my co-workers.[2] My previous supervisor the Coordinator of the Student Assistance program was aware of some of these offensive sexual remarks. She made no attempt to stop this behavior even though it was her responsibility to stop this type of behavior.
I hand delivered a letter to my newly assigned supervisor the Coordinator of
1 By an additional issue, MISD also argues that the trial court erred in denying its plea to the jurisdiction as to Espinosa's common-law negligent hiring, supervision, and training and intentional infliction of emotional distress claims. Those claims were dismissed when the trial court granted an earlier summary judgment filed by MISD. However, Espinosa continued to allege those claims in her amended petition filed after the granting of the summary judgment. As a result, MISD's plea to the jurisdiction again asked for dismissal of the common-law claims. The trial court's order on MISD's plea included a denial of the plea as to the common-law claims, despite the court's earlier dismissal of those same claims. This inconsistency became apparent to the Court early in this appeal, and we remanded the case to the trial court to address this issue in the record. On remand, the trial court dissolved the portion of its order related to the common-law claims, effectively reinstating its earlier dismissal of the common-law claims. MISD argues that the dissolution of this portion of the order moots its additional issue. We agree, and, as a result, need not address any issue related to Espinosa's common-law claims. See TEX. R. APP. P. 47.1. 2 Espinosa made no allegations of racial discrimination in either her charge or her petition. 2 Counseling and Guidance on June 3, 2002. This was concerning offensive sexual comments made by my coworkers on May 30, 2002. I informed her that I considered this a formal sexual harassment complaint. I believe my complaint was not acted upon and investigated to my satisfaction.
I have been subjected to retaliation because of my stance against the offensive sexual comments.
I believe I have been discriminated against because of my sex, female[,] in that I have been subjected to sexual harassment . . . .
Espinosa checked the box on her charge form indicating that the discrimination was a
"continuing action." The TCHR and EEOC declined to pursue an investigation of
Espinosa's charge, instead sending her a "right-to-sue" letter that allowed her to file a
private cause of action based on her charge.
In November 2003, Espinosa filed a petition alleging claims against MISD for
sexual harassment, intentional infliction of emotional distress, and negligent hiring,
supervision, training, and retention. The intentional infliction of emotional distress and
negligent hiring claims were dismissed by the trial court pursuant to a motion for summary
judgment filed by MISD. In amended petitions filed over the next several years, the most
recent being filed in February 2010, Espinosa continued to urge her sexual harassment
claim and added a claim of retaliation.
In her live petition, Espinosa alleges that she was sexually harassed at a May 2002
staff meeting at which another district employee made offensive sexual comments to her
and other comments that "were sex related that spoke of wom[e]n in an offensive way."
Espinosa alleges that she filed a sexual harassment complaint with her supervisor on
June 11, 2002, but that her supervisor did not fully investigate the complaint or
3 communicate with her about the outcome of the investigation. Espinosa then alleges
that MISD retaliated against her for complaining of the harassment. Specifically,
Espinosa alleges that on October 10, 2002, before she filed her charge of discrimination,
"the personal [sic] director made an unscheduled visit [to her office] and intimidated her
by stating that the director already knew who was present at what meeting and that he
would vigorously represent the alleged accusers." Espinosa also alleges that MISD
retaliated against her after she filed her charge of discrimination by: not allowing her to
apply for a promotion; not allowing her to attend a drug education training; taking certain
responsibilities away from her; giving her negative evaluations; the filing of administrative
complaints against her by a co-worker; and, ultimately, terminating her employment in
2009. Finally, Espinosa alleges a series of what she considers to be retaliatory acts that
appear from the petition and evidence before the trial court to have begun before the May
2002 staff meeting but to have continued after the meeting, including: her co-workers
being instructed to document all phone calls with her; and the failure of co-workers to
socialize with her.
MISD filed a plea to the jurisdiction, arguing that Espinosa failed to exhaust her
administrative remedies by filing her charge of discrimination within 180 days of the
complained-of actions by MISD. See id. MISD attached as evidence to its plea:
excerpts of Espinosa's deposition; Espinosa's February 23, 2003 charge of
discrimination; various communications in June 2002 between Espinosa and her
supervisor regarding the May 2002 meeting; a letter sent to Espinosa by a co-worker in
October 2002 apologizing for comments made at the May 2002 meeting; and the
4 right-to-sue letter issued to Espinosa by the EEOC. Espinosa responded to the plea,
arguing that the trial court had jurisdiction because Espinosa alleged "continuing
violations" in her petition, some of which occurred in the 180-day period preceding her
charge of discrimination.
The trial court held a hearing on MISD's plea to the jurisdiction and Espinosa's
response, but no additional evidence was introduced at the hearing. The trial court then
denied MISD's plea to the jurisdiction. This accelerated appeal followed. See TEX. CIV.
PRAC. & REM. CODE ANN. § 51.014(a)(8) (West Supp. 2011).
II. Standard of Review
A plea to the jurisdiction is a dilatory plea; its purpose is "to defeat a cause of action
without regard to whether the claims asserted have merit." Bland Indep. Sch. Dist. v.
Blue, 34 S.W.3d 547, 554 (Tex. 2000). The plea challenges the trial court's jurisdiction
over the subject matter of a pleaded cause of action. Tex. Dep't of Parks & Wildlife v.
Miranda, 133 S.W.3d 217, 226 (Tex. 2004); Tex. Parks & Wildlife Dep't v. Morris, 129
S.W.3d 804, 807 (Tex. App.—Corpus Christi 2004, no pet.). Subject matter jurisdiction
is a question of law; therefore, an appellate court reviews de novo a trial court's ruling on
a plea to the jurisdiction. Miranda, 133 S.W.3d at 226; Morris, 129 S.W.3d at 807.
In reviewing a plea to jurisdiction, we look to the allegations in the pleadings,
construe them 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). The plaintiff bears the burden to
allege facts affirmatively demonstrating the trial court's jurisdiction to hear a case. Tex.
Dep't of Transp. v. Ramirez, 74 S.W.3d 864, 867 (Tex. 2002); Morris, 129 S.W.3d at 807.
5 We consider the facts alleged in the petition, and if the plea to the jurisdiction was
determined solely on the pleadings, it is reviewed de novo. Miranda, 133 S.W.3d at 226.
To the extent relevant to the existence of jurisdictional facts, we also consider any
evidence submitted by the parties to the trial court. Bland Indep. Sch. Dist., 34 S.W.3d at
555. When a challenge to the existence of jurisdictional facts does not implicate the
merits of the case and the facts are disputed, the trial court, rather than the jury, must
make the necessary fact findings to resolve the jurisdictional issue. Miranda, 133
S.W.3d at 226. Where the trial court did not issue findings of fact, as was the case here,
the reviewing court presumes that the trial court resolved all factual disputes in favor of its
determination. See Am. Type Culture Collection, Inc. v. Coleman, 83 S.W.3d 801, 806
(Tex. 2002). The reviewing court then determines whether the trial court's findings,
including implied findings, are supported by legally sufficient evidence. BMC Software
Belg., N.V. v. Marchand, 83 S.W.3d 789, 795 (Tex. 2002).
We will sustain a legal-sufficiency or no-evidence challenge if the record shows:
(1) the complete absence of evidence of a vital fact; (2) that the court is barred by the
rules of law or evidence from giving weight to the only evidence offered to prove a vital
fact; (3) that the evidence offered to prove a vital fact is no more than a scintilla; or (4) that
the evidence establishes conclusively the opposite of a vital fact. City of Keller v. Wilson,
168 S.W.3d 802, 810 (Tex. 2005). When reviewing a no-evidence challenge, we view
the evidence in the light favorable to the finding, crediting favorable evidence if a
reasonable fact-finder could and disregarding contrary evidence unless a reasonable
fact-finder could not. Id. at 807. The ultimate test for legal sufficiency is whether the
6 evidence would enable reasonable and fair-minded people to make the finding under
review. Id. at 827.
III. The CHRA
The CHRA prohibits sex discrimination and retaliation by employers. See TEX.
LAB. CODE ANN. §§ 21.001, 21.051, 21.055 (West 2006). Because the CHRA is modeled
after federal civil rights law, "we look to analogous federal precedent for guidance when
interpreting the Texas Act." NME Hosps., Inc. v. Rennels, 994 S.W.2d 142, 144 (Tex.
1999); Schroeder v. Tex. Iron Works, Inc., 813 S.W.2d 483, 485 (Tex. 1991), overruled in
part on other grounds by In re United Servs. Auto. Ass'n, 307 S.W.3d 299, 310 (Tex.
2010) (overruling the footnote in Schroeder that suggested that the two-year statute of
limitations in Texas Labor Code section 21.256 is "mandatory and jurisdictional").
Courts are only to consider CHRA claims after the plaintiff has exhausted her
administrative remedies. Specialty Retailers, Inc. v. DeMoranville, 933 S.W.2d 490, 492
(Tex. 1996) (per curiam); Schroeder, 813 S.W.2d at 485. To meet the exhaustion
requirement, a plaintiff must file a charge of discrimination with the EEOC or the TCHR
within 180 days of the alleged discriminatory employment action. See TEX. LAB. CODE
ANN. § 21.202; see also Czerwinski v. Univ. of Tex. Health Sci. Ctr., 116 S.W.3d 119, 121
(Tex. App.—Houston [14th Dist.] 2002, pet. denied) (citations omitted). If the plaintiff
fails to file with the EEOC or TCHR in that time period, the trial court lacks subject matter
jurisdiction over its subsequent CHRA claim. See Czerwinski, 116 S.W.3d at 121-22
(citing Schroeder, 813 S.W.2d at 485-89). An exception to the 180-day filing deadline,
reflected in the "Continuing Action" box on the EEOC charge form, is for unlawful
7 discrimination that manifests itself over time, rather than as a series of discrete acts; when
such "continuing violation" discrimination occurs, the 180-day filing clock does not begin
to run until one of the involved discriminatory events should, in fairness and logic, have
alerted the average layperson to act to protect his or her rights. Univ. of Tex. v.
Poindexter, 306 S.W.3d 798, 808 (Tex. App.—Austin 2009, no pet.).
IV. Discussion
By one issue on appeal, MISD argues that the trial court erred in denying its plea to
the jurisdiction because Espinosa failed to file her charge of discrimination within 180
days of the alleged employment discrimination.
A. Sexual Harassment/Sex Discrimination Claim
Looking first to her petition only, we note that Espinosa's sexual harassment claim
is based on the comments made by a co-worker at a May 30, 2002 staff meeting. The
available evidence demonstrates this same basis, as well: the charge of discrimination
identifies the harassment as occurring at the May 30, 2002 staff meeting; in her
deposition, Espinosa testified that the harassing conduct she alleged in her charge of
discrimination occurred at the May 30, 2002 staff meeting and that no further harassing
comments have been made since May 2002; and in the communications between
Espinosa and her supervisor and co-workers, the alleged harassment was indicated to
have occurred at the May 30, 2002 staff meeting. The remaining instances of conduct
alleged by Espinosa, including the alleged intimidation by the personnel director in
October 2002, are part of Espinosa's retaliation claim, not her sex discrimination claim.
Moreover, the other conduct alleged by Espinosa cannot be construed as part of a
8 continuing sex discrimination violation. The incident at the May 2002 staff meeting was a
discrete event, and the remaining alleged conduct was, as discussed below, relevant to
an alleged pattern of retaliation, not sex discrimination.
To have exhausted her administrative remedies and invoked the trial court's
jurisdiction over her sex discrimination claim, then, Espinosa was required to file her
charge of discrimination by the end of November 2002, i.e., within 180 days of the May
30, 2002 meeting at which the offensive comments were made. See Czerwinski, 116
S.W.3d at 121-22. Based on the foregoing, we conclude that the evidence conclusively
showed that Espinosa's February 23, 2003 charge of discrimination was almost two
months late, and the trial court acted on legally insufficient evidence in impliedly finding
otherwise and in concluding that it had subject matter jurisdiction over Espinosa's sex
discrimination claim. See City of Keller, 168 S.W.3d at 810. Espinosa's failure to file
her charge within the deadline prescribed by the statute deprived the trial court of
jurisdiction over her sex discrimination claim, and the trial court therefore erred in denying
MISD's plea to the jurisdiction in this regard. We sustain MISD's issue to the extent it
complains of this portion of the trial court's denial.
B. Retaliation Claim
The following allegedly retaliatory conduct is shown by Espinosa's petition and the
evidence before the trial court to have occurred before Espinosa filed her charge of
discrimination:
the failure of Espinosa's supervisor to act on her sexual harassment complaint in June 2002;
the "intimidating" office visit by the personnel director in October 2002;
9 the instructions to her co-workers to document all phone calls with her; and
the failure of co-workers to socialize with her.
It appears from Espinosa's deposition testimony, in particular, that the final two incidents,
involving what she characterizes as heightened scrutiny and ostracization, began before
the May 2002 staff meeting and continued throughout the remainder of her employment
with MISD. In her petition, Espinosa also indicates that the ostracizing conduct was
occurring, specifically, "[o]n or about June 11, 2002."
The remaining allegations of retaliatory conduct shown by the petition and
evidence occurred after Espinosa filed her charge of discrimination, including:
not allowing Espinosa to apply for a promotion;
not allowing her to attend a drug education training;
taking certain responsibilities away from her;
giving Espinosa what she considered to be a negative performance evaluation;
filing of administrative complaints against her by a co-worker; and
ultimately, terminating her employment in 2009.
Espinosa contends that she has alleged a continuing retaliation violation that falls
within the exception to the 180-day deadline in the labor code. The continuing violation
doctrine relieves a plaintiff from proving that all of her employer's alleged acts of
discrimination occurred within the actionable period if she can show "a series of related
acts, one or more of which falls within the limitations period." Messer v. Meno, 130 F.3d
130, 134-35 (5th Cir. 1997); see also Lamar Univ. v. Jordan, No. 09-10-00292-CV, 2011
WL 550089, at *4 (Tex. App.—Beaumont Feb. 17, 2011, no pet.) (mem. op.). However, 10 the filing period begins to run when "facts supportive" of a discrimination action "are or
should be apparent to a reasonably prudent person similarly situated." Glass v.
Petro–Tex Chem. Corp., 757 F.2d 1554, 1560-61 (5th Cir. 1985)). With regard to a
CHRA claim, in particular, the 180-day filing clock begins to run when one of the
discriminatory events should, in fairness and logic, have alerted the average layperson to
act to protect his or her rights. See Poindexter, 306 S.W.3d at 808.
Here, Espinosa filed her charge of discrimination on February 23, 2003; the
180-day period preceding her charge therefore began on August 27, 2002. One of the
alleged events—the October 2002 surprise visit by the personnel director that allegedly
intimidated Espinosa—fell within that 180-day period. But even assuming that the
October 2002 event was an act of retaliation, Espinosa's petition and her deposition
testimony make it clear that she was aware of and knew facts as early as June 2002 that
were supportive of a charge of retaliation. Espinosa alleged in her petition and testified
in her deposition that, in June 2002, she was unsatisfied with her supervisor's
investigation of the harassing comments made at the May 2002 staff meeting.
Espinosa's petition and her testimony also indicate that she felt ostracized by her
co-workers immediately after the May 2002 meeting; she alleged that this ostracization
and humiliation was, in part, caused by her supervisor instructing her co-workers to
document all communications with Espinosa. These June 2002 events should have
alerted Espinosa to act to protect her rights; in other words, by June 2002, facts
supportive of a retaliation claim against MISD should have been apparent to Espinosa.
See id.; see also Glass, 757 F.2d at 1560-61.
11 Having reviewed Espinosa's petition and the relevant evidence before the trial
court, we conclude that, in denying MISD's plea to the jurisdiction as to Espinosa's
retaliation claim, the trial court disregarded evidence that no reasonable fact finder could
have. See City of Keller, 168 S.W.3d at 807. Specifically, the trial court was not free to
disregard the conclusive evidence showing that Espinosa should have been alerted to
protect her rights in June of 2002. See id. at 810. Thus, her February 23, 2003 charge
of discrimination was untimely and deprived the trial court of subject matter jurisdiction.
See TEX. LAB. CODE ANN. § 21.202; Czerwinski, 116 S.W.3d at 121-22. The trial court
erred in denying MISD's plea to the jurisdiction as to Espinosa's retaliation claim, and
MISD's appellate issue is sustained in this regard.
V. Conclusion
We reverse the trial court's denial of MISD's plea to the jurisdiction and render
judgment dismissing Espinosa's claims for lack of jurisdiction.
NELDA V. RODRIGUEZ Justice
Delivered and filed the 15th day of June, 2012.