Goss v. City of Hous.

• Decision Date: 20 September 2012
• Docket Number: No. 01–10–00836–CV.,01–10–00836–CV.
• Parties: Gordon R. GOSS, Appellant v. The CITY OF HOUSTON, Appellee.
• Court: Texas Court of Appeals

391 S.W.3d 168

Gordon R. GOSS, Appellant

v.The CITY OF HOUSTON, Appellee.

No. 01–10–00836–CV.

Court of Appeals of Texas,

Houston (1st Dist.).

Sept. 20, 2012.

John R. Craddock, The Feldman Law Firm LLP, Houston, TX, for Appellant.

Karen Gail Singer, Assistant City Attorney, City of Houston Legal Department, Houston, TX, for Appellee.

Panel consists of Justices KEYES, HIGLEY, and MASSENGALE.

OPINION

EVELYN V. KEYES, Justice.

Appellant, Gordon R. Goss, appeals the trial court's grant of the plea to the jurisdiction filed by appellee, the City of Houston (“the City”). The appeal arises from the dismissal of Goss's claims for violations of the Texas Commission on Human Rights Act (“TCHRA”), conspiracy to violate the TCHRA, and intentional infliction of emotional distress. In four issues, Goss argues the trial court erred by: (1) ordering the case to be dismissed when certain claims were still before the trial court; (2) granting more relief than requested by the City; (3) improperly dismissing his claims with prejudice; and (4) determining that his claims were barred by the statute of limitations. ¹ In a cross-point, the City argues that we lack jurisdiction to consider this appeal. We affirm the trial court's order dismissing the case for lack of jurisdiction with prejudice.

Background

Goss's claims arise out of complaints he filed with the Texas Workforce Commission (TWC) and with the United States Equal Employment Opportunity Commission (EEOC), one filed on April 13, 2006 and one filed on January 8, 2007 and amended on July 3, 2007. On April 13, 2009, the EEOC notified Goss and his attorney in two separate determinations that it believed the City had violated Title VII of the Civil Rights Act of 1964 (“Title VII”). The determinations made no referenceto the TCHRA or any other state law or potential claim. On May 28, 2009, Goss and his attorney were notified that conciliation efforts required by Title VII had been unsuccessful. On November 23, 2009, Goss was notified by the United States Department of Justice (“DOJ”) that he had the right to institute a civil action under Title VII and that “such suit must be filed in the appropriate court within 90 days of your receipt of this Notice.” The right to sue letter from the DOJ made no reference to the TCHRA or any other state law claim.

Goss filed suit on February 26, 2010, asserting claims under the TCHRA and intentional torts. He did not include any federal claims. After the City filed its plea to the jurisdiction and motion for summary judgment, however, Goss filed an amended petition asserting federal claims under Title VII. He did not serve this petition on the City until July 21, 2010, over a month after the June 4, 2010 hearing on the City's plea to the jurisdiction, and a month after the trial court's June 21, 2010 order dismissing Goss's suit with prejudice.

Statute of Limitations

In his third issue, Goss argues the trial court erred by granting the City's plea to the jurisdiction based on the statute of limitations because equitable tolling applies. The City responds that statutory requirements, including limitations periods, are jurisdictional in suits against the City and that the equitable tolling doctrine does not apply. We agree with the City.

The TCHRA provides that a plaintiff who seeks redress under that Act must file suit within two years of the date he filed his complaint with the Texas Workforce Commission. Tex. Labor Code Ann. § 21.256 (Vernon 2006); see City of Houston v. Fletcher, 63 S.W.3d 920, 922 (Tex.App.-Houston [14th Dist.] 2002, no pet.) (holding that aggrieved employee must file complaint within 180 days of alleged discriminatory act, allow TWC 180 days to dismiss or resolve complaint before filing suit, and “file suit in district court no later than two years after the complaint is filed with the [TWC]”). Here, Goss filed two complaints with the EEOC and the TWC, one on April 13, 2006 and one on January 8, 2007. In both circumstances, Goss indicated that he wanted the charges filed with what is now the Texas Workforce Commission, Civil Rights Division. The EEOC issued its determinations on April 13, 2009. A right to sue letter was issued on November 23, 2009. Goss filed suit, alleging violations of the TCHRA, on February 26, 2010, over three years after he filed his last charge with the EEOC. Thus, this suit was untimely under the plain language of the TCHRA.

The City argues that a statute of limitations is jurisdictional in a suit against a governmental entity and, therefore, because Goss brought his TCHRA suit after limitations had run, the trial court lacked subject matter jurisdiction and properly dismissed the suit with prejudice. To support its argument, the City relies on Government Code section 311.034, a Texas Supreme Court case, and an opinion from the El Paso Court of Appeals. SeeTex. Gov't Code Ann. § 311.034 (Vernon Supp.2012); In re United Servs. Auto. Ass'n, 307 S.W.3d 299, 310 (Tex.2010); El Paso Indep. Sch. Dist. v. Alspini, 315 S.W.3d 144, 149 (Tex.App.-El Paso 2010, no pet.). While this suit was pending, however, the Texas Supreme Court answered this question definitively. See Prairie View A & M Univ. v. Chatha, 381 S.W.3d 500, 510–16 (Tex.2012) (applying Labor Code section 21.202, requiring that complaint under TCHRA be filed with TWC within 180 days, to section 311.034) Section 311.034 provides, in relevant part, “Statutory prerequisites to a suit, including the provision of notice, are jurisdictional requirements in all suits against a governmental entity.” Tex. Gov't Code Ann. § 311.034. In Prairie View A & M, the Texas Supreme Court expressly held that the 180–day administrative filing deadline is jurisdictional. See Prairie View A & M Univ., 381 S.W.3d at 517–24. Courts have also determined that notices of intent to file suit and exhaustion of administrative remedies are statutory prerequisites that function as jurisdictional requirements in a suit against a governmental entity. Colquitt v. Brazoria Cnty., 324 S.W.3d 539, 543 (Tex.2010) (applying requirement to provide notice of intent to file suit to section 311.034); MHCB (USA) Leasing & Fin. Corp. v. Galveston Cent. Appraisal Dist. Review Bd., 249 S.W.3d 68, 82 (Tex.App.-Houston [1st Dist.] 2007, pet. denied) (applying exhaustion of administrative remedies requirements to section 311.034).

Prior to Prairie View A & M, the El Paso Court of Appeals had held that compliance with the statute of limitations in Labor Code section 21.256 was not only a mandatory statutory prerequisite to bringing suit under the TCHRA but was also jurisdictional when the defendant is a governmental entity. Alspini, 315 S.W.3d at 149. As authority for its holding, the Alspini court relied upon the Texas Supreme Court's opinion in In re United Services Auto Association. In United Services, the supreme court—mindful of its own prior opinion in Dubai Petroleum Co. v. Kazi, 12 S.W.3d 71 (Tex.2000), which held that a statutory prerequisite may be mandatory without being jurisdictional and observing that the United States Supreme Court had “consistently construed Title VII's requirements as mandatory but not jurisdictional”—held that the two-year statutory period for filing suit against a private employer on claims brought under the TCHRA was “mandatory but not jurisdictional” and was, therefore, subject to equitable tolling. United Servs., 307 S.W.3d at 306, 308, 310–11. However, the court also observed, as part of its rationale,

[w]hile the Legislature could make the Labor Code filing deadlines jurisdictional, as it has in cases involving statutory requirements relating to governmental entities, seeTex. Gov't Code Ann. § 311.034 (providing that “statutory prerequisites to a suit, including the provision of notice, are jurisdictional requirements in all suits against a governmental entity”), it has not done so here.

Id. at 308.

Citing the foregoing statement in United Services, the Alspini court held that compliance with the statute of limitations for an employment discrimination claim under the TCHRA set out in Labor Code section 21.256 was a mandatory statutory prerequisite to bringing suit under the TCHRA against a governmental entity and was jurisdictional. Alspini, 315 S.W.3d at 149. And it observed that “a failure to comply with the mandatory statutory requirements deprives a trial court of subject matter jurisdiction in a subsequent lawsuit alleging violations of the Act against a governmental entity.” Id. (citing United Servs., 307 S.W.3d at 308).

We agree with the Alspini court that, in United Services, the Texas Supreme Court explicitly recognized that the TCHRA and Government Code section 311.034 were both intended by the Legislature to have effect and that the express intent of section 311.034 is to make statutory prerequisites to suit jurisdictional in suits brought against governmental entities, including the mandatory, but otherwise non-jurisdictional, statutory limitationsperiod in Labor Code section 21.256. See United Servs., 307 S.W.3d at 308;Alspini, 315 S.W.3d at 149;see also Chatha, 381 S.W.3d at 511 (holding that 2005 amendment of section 311.034 “evinces the Legislature's intent that all statutory prerequisites are now jurisdictional requirements as to governmental entities and are properly asserted in a plea to the jurisdiction”). We specifically observe that to hold otherwise would draw an unfounded distinction between “statutory prerequisites” and statutes of limitations and contravene the express intent of the Legislature, set out in Government Code section 311.034, that all statutory prerequisites to suit be considered jurisdictional when the defendant is a governmental entity. SeeTex. Gov't Code Ann. § 311.034; Chatha, 381 S.W.3d at 512 (holding that “the term ‘statutory prerequisite’ refers to statutory provisions that are mandatory and must be accomplished prior to filing suit” and that “[i]n a statutory cause of action against a...