City of El Paso v. Marquez

• Decision Date: 25 September 2012
• Docket Number: No. 08–11–00262–CV.,08–11–00262–CV.
• Citation: 380 S.W.3d 335
• Parties: The CITY OF EL PASO, Texas, Appellant, v. Lorenzo MARQUEZ, Appellee.
• Court: Texas Court of Appeals

380 S.W.3d 335

The CITY OF EL PASO, Texas, Appellant,

v.Lorenzo MARQUEZ, Appellee.

No. 08–11–00262–CV.

Court of Appeals of Texas,

El Paso.

Sept. 25, 2012.

Kenneth A. Krohn, Assistant City Attorney, El Paso, TX, for Appellant.

Francisco X. Dominguez, Dominguez & Coyle PLLC, El Paso, TX, for Appellee.

Before McCLURE, C.J., RIVERA, J., and ANTCLIFF, J.

OPINION

GUADALUPE RIVERA, Justice.

Appellant, The City of El Paso (the City) brings this accelerated interlocutory appeal from an order denying its plea to the jurisdiction and an order denying its motion for summary judgment. Tex. Civ. Prac. & Rem. Code Ann.. § 51.014(a)(8) (West 2008).

FACTUAL AND PROCEDURAL BACKGROUND

Appellee, Lorenzo Marquez, is a former city employee, who worked in the El Paso Fire Department (EPFD) from March 1982 to May 2007. On September 15, 2005, Appellee filed a dual complaint with the Equal Employment Opportunity Commission (EEOC) and the Civil Rights Division of the Texas Workforce Commission (TWC). On the TWC Charge of Discrimination form, Appellee checked the boxes alleging discrimination based on retaliation and national-origin, as well as the continuing action box indicating that the discrimination was ongoing. Appellee also reported that the earliest date of discrimination took place on April 1, 2004, and the latest date of discrimination was September 14, 2005.

In his charge of discrimination, Appellee stated that on December 14, 2004, he reported to Assistant Fire Chief Manuel Chavira the disparate treatment against himself and his subordinates by his immediate supervisor and that no action was taken regarding his complaint. On January 11, 2005, Chavira transferred Appellee from his position in the Support Division to a position in the Operations Division. Appellee believed this transfer was made in retaliation for reporting the discriminatory treatment. After his reassignment in 2005, Appellee continued to be discriminated and retaliated against by upper-level management officials.

On May 2, 2006, after conducting an investigation the EEOC dismissed Appellee's complaint because it could not concludethat the information it had obtained established statutory violations and provided Appellee a right-to-sue notice allowing him to file a private suit. On August 2, 2006, Appellee filed suit against the City, alleging violations under Chapter 21 of the Texas Labor Code.¹ Prior to filing suit, Appellee had requested a right-to-sue notice from the TWC which he received on August 4, 2006.

In an amended petition filed on April 7, 2011, Appellee added discrimination and retaliation claims under Title VII of the Civil Rights Act of 1964 ² and Section 1981 of Title 42 of the United States Code.³ In his live petition, Appellee alleged that he was forced to resign in May 2007 because he was subjected to a hostile and intolerable work environment and, as such, was constructively discharged.

In response to the original petition, the City filed a general denial and a plea to the jurisdiction which also included a traditional motion for summary judgment, a no-evidence motion for summary judgment and a motion to dismiss. Later, the City filed a supplemental plea to the jurisdiction and motion for summary judgment addressing the federal claims added in Appellee's second amended petition. Appellee filed a response to the City's plea and motion for summary judgment and attached an affidavit stating that on December 14, 2004, he informed Assistant Fire Chief Chavira about the heightened standards he was subjected to compared to Anglo employees. After his involuntary transfer in January 2005, Appellee asserts that he was replaced by an Anglo who did not have all the certifications required for the position and did not have the same certifications as Appellee. Furthermore, Appellee states that white employees who were not qualified or who were less qualified than he is were allowed to work and advance within the Fire Marshal Division. From January 11, 2005 to September 14, 2005, Appellee also states that he was subjected to ongoing ridicule, humiliation, defamation of character, and hostility. Additionally, on September 14, 2005, he learned that false and degrading statements continued to be made against him by EPFD managers.

The trial court denied the City's plea to the jurisdiction and motion for summary judgment. This interlocutory appeal followed.

DISCUSSION

The City raises three issues for our review, asserting that the trial court erred in denying both its plea to the jurisdiction and motion for summary judgment. In Issue One, Appellant argues that the trial court erred when it denied its plea to the jurisdiction and motion for summary judgment because Appellee failed to exhaust his administrative remedies by not complying with EPFD's grievance procedure. In Issue Two, the City argues that the trial court erred by denying its plea to the jurisdiction and motion for summary judgment because Appellee failed to preserve his Chapter 21 claims by failing to timely file his administrative complaint. In Issue Three, Appellant contends the trial court lacks subject-matter jurisdiction over Appellant's Section 1981 claim. Because Appellee incorporates the same arguments it raised in its plea to the jurisdiction within its motion for summary judgment, our analysis of the City's complaints regarding the trial court's denials of its plea to the jurisdiction and its motion for summary judgment is the same.

Standard of Review

A plea to the jurisdiction contests a trial court's subject-matter jurisdiction. Bland Independent School District v. Blue, 34 S.W.3d 547, 554 (Tex.2000); Samaniego v. Keller, 319 S.W.3d 825, 828 (Tex.App.-El Paso 2010, no pet.). We review de novo whether a trial court has subject-matter jurisdiction and whether a pleader has alleged facts that affirmatively demonstrate the trial court's subject-matter jurisdiction. Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 228 (Tex.2004); Keller, 319 S.W.3d at 828. A trial court's review of a plea to the jurisdiction challenging the existence of jurisdictional facts mirrors that of a motion for summary judgment. Miranda, 133 S.W.3d at 228;seeTex. R. Civ. P. 166a(c).

A plaintiff has the burden of pleading facts which affirmatively show that the trial court has jurisdiction. Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex.1993). Thus, we first consider the plaintiff's petition to determine whether the facts pled affirmatively demonstrate that jurisdiction exists. State v. Holland, 221 S.W.3d 639, 642–43 (Tex.2007), citing Miranda, 133 S.W.3d at 226. We construe the pleadings liberally in favor of the pleader, look to the pleader's intent, and accept as true the factual allegations in the pleadings. Miranda, 133 S.W.3d at 226, 228. If the pleadings are insufficient to establish jurisdiction but do not affirmatively demonstrate an incurable defect, the plaintiff should be afforded an opportunity to replead. Holland, 221 S.W.3d at 643;Miranda, 133 S.W.3d at 226–27. However, in some instances, a plea to the jurisdiction may require our consideration of evidence pertaining to jurisdictional facts. Holland, 221 S.W.3d at 643;Miranda, 133 S.W.3d at 227;Bland Independent School District, 34 S.W.3d at 555. “A plea should not be granted if a fact issue is presented as to the court's jurisdiction, but if the relevant undisputed evidence negates jurisdiction, then the plea to the jurisdiction must be granted.” Holland, 221 S.W.3d at 643,citing Miranda, 133 S.W.3d at 227–28.

Exhaustion of Administrative Remedies

Grievance Procedure

In Issue One, the City urges that the trial court erred in denying its plea to the jurisdiction and motion for summary because Appellee failed to exhaust his administrative remedies by not participating in any step of EPFD's grievance procedure, and thereby deprived the trial court of subject-matter jurisdiction over Appellee's state and federal law claims. In support of its plea and motion for summary judgment, the City attached, in part, as evidence: (1) the September 15, 2005 TWC charge of discrimination; (2) the EEOC's September 26, 2005 notice of charge of discrimination addressed to the City; (3) the EEOC's May 2, 2006 dismissal and notice of rights; (4) the TWC's notice of right to file a civil action dated August 4, 2006; (5) excerpts of Appellee's deposition; (6) the 2002–2005 Articles of Agreement between the City and Local 51, International Association of Firefighters; and (7) a contract extension signed in October 2006.

Citing to four cases, the City contends that under the terms of the Articles of Agreement, Appellee was required to exhaust EPFD's grievance procedure and because he failed to do so, Appellee is not entitled to seek redress in court. We disagree.

The cases relied upon by the City are inapposite as they do not relate to the state or federal claims at issue in the instant case.⁴ We note that the Articles of Agreement do not contain any mandatory language indicating that Appellee was required to follow EPFD's grievance procedure but, rather, provides that any employee covered by the agreement “may file a grievance ....” Furthermore, the City does not cite to any authority, nor are we aware of any, indicating that either Chapter 21 or Title VII of the Civil Rights Act of 1964 mandate that a complainant must exhaust the grievance procedure of his or her employer in addition to the statutory requirements. Tex. Lab. Code Ann. § 21.001–556 (West 2006); 42 U.S.C. § 2000e et seq.

Chapter 21 of the Labor Code, which is also known as the Commission on Human Rights Act (TCHRA), deals with employment discrimination.⁵Tex. Lab. Code Ann. § 21.001–556 (West 2006). The stated purposes of Chapter 21 include providing “for the execution of the policies of Title VII” and identifying and creating “an authority,” i.e., the TWC, to effectuate those policies. Id. § 21.001(1)(2). Under Chapter 21, it is unlawful for an employer to...