Bartosh v. Sam Houston State University

• Citation: 259 S.W.3d 317
• Decision Date: 30 June 2008
• Docket Number: No. 06-07-00086-CV.,06-07-00086-CV.
• Parties: Ann BARTOSH, Appellant v. SAM HOUSTON STATE UNIVERSITY, Appellee.
• Court: Texas Court of Appeals

259 S.W.3d 317

Ann BARTOSH, Appellant v. SAM HOUSTON STATE UNIVERSITY, Appellee.

No. 06-07-00086-CV.

Court of Appeals of Texas, Texarkana.

Submitted March 11, 2008.

Decided June 30, 2008.

Roy D. Brantley, West, Webb, Allbritton & Gentry, PC, College Station, TX, for appellant.

Robert F. Johnson III, Assistant Atty. Gen., Austin, TX, for appellee.

Before MORRISS, C.J., CARTER and MOSELEY, JJ.

OPINION

Opinion by Chief Justice MORRISS.

None would argue that Ann Bartosh and Martin Amorous agreed on religion. For some years, Bartosh was employed as slide librarian for the art department at Sam Houston State University¹ under the supervision of Amorous, the department head. Bartosh claims that her February 8, 2002, termination as a University employee was both religious discrimination² and retaliation for her earlier report to University officials alleging a hostile work environment³ directed at her Christian faith. Bartosh pursues those two termination claims — disparate-treatment termination and retaliatory termination⁴ — as well as her claim that she had been subjected to a hostile work environment because of her Christianity.

The University convinced the trial court to dismiss Bartosh's claims for disparate-treatment termination and hostile work environment on the basis that she failed to comply with administrative prerequisites, namely, by timely filing an administrative complaint on those claims. The University also convinced the trial court to grant it a summary judgment denying Bartosh's retaliatory-termination claim. Bartosh appeals those decisions.

We reverse the dismissal of the claim for disparate-treatment termination and remand it to the trial court for further proceedings. We affirm the judgment of the trial court in all other respects. Those dispositions of the claims before us result from our holdings that (1) Bartosh's disparate-treatment-termination claim was preserved by a timely administrative complaint, (2) Bartosh's hostile-work-environment claim was not preserved by a timely administrative complaint citing any event supporting that claim, and (3) Bartosh's retaliatory-termination claim was not supported by any evidence of causation.

(1) Bartosh's Disparate-Treatment-Termination Claim Was Preserved by a Timely Administrative Complaint

An employer commits unlawful employment discrimination (disparate treatment) if the employer discharges an individual because of religion. TEX. LAB.CODE ANN. § 21.051 (Vernon 2006).

A plaintiff must comply with administrative prerequisites to sustain an employment discrimination cause of action. This is mandatory and jurisdictional.⁵ Specialty Retailers v. DeMoranville, 933 S.W.2d 490 (Tex.1996) (reviewing summary judgment for failure to file timely administrative complaint); Davis v. Educ. Serv. Ctr., 62 S.W.3d 890 (Tex.App.-Texarkana 2001, no pet.). The plaintiff has the burden of alleging facts to affirmatively demonstrate the trial court has jurisdiction. Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex.2004). To attach jurisdiction, Bartosh must have filed a complaint with the Texas Commission on Human Rights⁶ or the United States Equal Employment Opportunity Commission (EEOC) within 180 days of the alleged discriminatory employment practice. See TEX. LAB.CODE ANN. §§ 21.201, 21.202 (Vernon 2006). The 180-day limitations period commences the date the alleged unlawful employment practice occurred. See TEX. LAB.CODE ANN. § 21.202; DeMoranville, 933 S.W.2d at 492-93. A discrete retaliatory or disparate treatment discriminatory practice "occurs" the day it happens. Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 110, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002).⁷

In examining a claim of a time bar, we construe employment discrimination charges with the "utmost liberality," bearing in mind that such charges are generally prepared by laypersons untutored in the rules of pleading, though requiring that the charge contain an adequate factual basis so that it puts the employer on notice of the existence and nature of the charges. Preston v. Tex. Dep't of Family & Prot. Servs., 222 Fed. Appx. 353, 356 (5th Cir.2007); cf. EEOC v. Commercial Office Prods. Co., 486 U.S. 107, 124, 108 S.Ct. 1666, 100 L.Ed.2d 96 (1988) (Title VII procedures are remedial, initiated by laypersons, rather than lawyers). As such [D]ocuments filed by an employee with the EEOC should be construed, to the extent consistent with permissible rules of interpretation, to protect the employee's rights and statutory remedies. Construing ambiguities against the drafter may be the more efficient rule to encourage precise expression in other contexts; here, however, the rule would undermine the remedial scheme Congress adopted.

Fed. Express Corp. v. Holowecki, 552 U.S. ___, 128 S.Ct. 1147, 1160, 170 L.Ed.2d 10 (U.S. Feb. 27, 2008) (finding "charge" had been timely made).

"The crucial element of a charge of discrimination is the factual statement contained" in the administrative complaint. Preston, 222 Fed.Appx. at 356. The court should construe the administrative complaint somewhat broadly, not solely by the scope of the administrative charge itself, but by the scope of the administrative investigation which "can reasonably be expected to grow out of the charge of discrimination." Pacheco v. Mineta, 448 F.3d 783, 789 (5th Cir.2006); cf. 29 C.F.R. § 1601.12(b) (West, Westlaw current through June 12, 2008) ("a charge is sufficient when ... sufficiently precise to identify the parties, and to describe generally the action or practices complained of"). The court should engage in fact-intensive analysis of the statement given by the plaintiff in the administrative charge, and look slightly beyond its four corners, to its substance rather than its label. Pacheco, 448 F.3d at 789.

Nonetheless, the administrative complaint is not construed so broadly as to exceed the scope of the administrative investigation reasonably expected to grow out of the complaint. Id. A claim must be dismissed if the administrative complaint, on its face or after amplification by further facts, discloses a failure to state a timely claim. Cf. 29 C.F.R. § 1601.18(a) (West, Westlaw current through June 12, 2008).

Bartosh filed an administrative complaint with the Texas Commission on Human Rights February 14, 2002.⁸ Thus, the court could consider discriminatory practices occurring within 180 days of February 14, 2002, i.e., on or after August 18, 2001.

In her administrative complaint, on "EEOC form 5," Bartosh checked the boxes asserting discrimination on the bases of religion⁹ and retaliation. The complaint does not assert that harassment was ongoing; the "continuing action" box was not checked and the dates of discrimination are noted as "02/08/2002 to 02/08/2002." Bartosh listed three "particulars" in support of her charges: (1) that she was terminated February 8, 2002; (2) that no reason was given for her termination; and (3) that she believes she was discriminated against because she is a Christian and in retaliation for opposing discrimination. Id.

Bartosh's administrative complaint mentions her discharge, which occurred within the 180-day window. Bartosh further asserted in her complaint that she was terminated and was discriminated against "for her Christian, with Catholic background, religion and in retaliation." (Emphasis added.)

To establish a prima facie case of disparate-treatment discrimination, Bartosh must provide evidence that (1) she is a member of a protected class, (2) she was qualified for her position, (3) she was subject to an adverse employment action, and (4) others similarly situated were treated more favorably. See Okoye v. Univ. of Tex. Houston Health Sci. Ctr., 245 F.3d 507, 512-13 (5th Cir.2001). Discrete acts constituting the adverse employment action under the third element include termination, failure to promote, denial of transfer, or refusal to hire. See Morgan, 536 U.S. at 114, 122 S.Ct. 2061. Although neither Bartosh's administrative complaint nor Bartosh's various petitions specify the basis of her claim, Bartosh asserted in response to the University's motions, and in briefing to this Court, that the disparate-treatment claim is based on the discrete act of termination.¹⁰

In reviewing a jurisdictional dismissal for nontimely filing, we consider the allegations of the complaint as true. Fellows v. Univ. Rests., Inc., 701 F.2d 447, 449 (5th Cir.1983).

Construing Bartosh's administrative complaint broadly, and to protect Bartosh's statutory remedies, we find that the scope of the administrative investigation growing out of Bartosh's complaint of termination and discrimination must fairly include an investigation of both an allegedly retaliatory termination and an allegedly discriminatory termination.

The University raises various complaints that Bartosh failed to show the termination was based on religion¹¹ and failed to present evidence of less favorable treatment, but these arguments go to the merits of the claim and are more properly disposed of on summary judgment than on the plea to the jurisdiction. Cf. Preston, 222 Fed.Appx. at 356. To the extent the court disposed of Bartosh's disparate-treatment claim on the plea to the jurisdiction because it found no merit in the claim, the trial court erred.

Although a summary judgment record was developed on the disparate-treatment claim, the trial court did not grant the University's alternative motion for summary judgment on the disparate-treatment claim; the court granted only the University's plea to the jurisdiction on the disparate-treatment claim. This is not a case in which the trial court expressly considered and conditionally ruled on the merits. See, e.g., Juliff Gardens, L.L.C. v. Tex. Comm'n on Envtl. Quality, 131 S.W.3d 271, 280 (Tex.App.-Austin 2004, no pet.); Cozby v. City of Waco, 110 S.W.3d 32, 34 (Tex.App.-Waco 2002, no pet.).¹² As the trial court, in granting the plea to the jurisdiction...