Lueck v. State Of Tex.

• Decision Date: 08 November 2010
• Docket Number: No. 03-07-00497-CV.,03-07-00497-CV.
• Citation: 325 S.W.3d 752
• Parties: George LUECK, Appellant, v. STATE of Texas and Texas Department of Transportation, Appellees.
• Court: Texas Court of Appeals

325 S.W.3d 752

George LUECK, Appellant,

v.STATE of Texas and Texas Department of Transportation, Appellees.

No. 03-07-00497-CV.

Court of Appeals of Texas,Austin.

July 16, 2010.

Rehearing Overruled Nov. 8, 2010.

COPYRIGHT MATERIAL OMITTED.

Gregory C. Douglass, Austin, TX, for Appellant.

Walter C. Brocato, Assistant Attorney General, Austin, TX, for Appellees.

Before Chief Justice JONES, Justices PURYEAR and PEMBERTON.

OPINION

J. WOODFIN JONES, Chief Justice.

Having sua sponte withdrawn our opinion and judgment of November 13, 2009, we substitute the following opinion in place of the earlier one.

Appellant George Lueck filed suit against his former employer, the State of Texas and the Texas Department of Transportation (collectively, the “Department”), for gender-based employment discrimination. The Department filed a plea to the jurisdiction, asserting that sovereign immunity and Lueck's untimeliness and failure to exhaust administrative remedies barred his claims. See Tex. Lab.Code Ann. § 21.202(a) (West 2006) (providing that claimant must file administrative complaint within 180 days of allegedly discriminatory employment action). The trial court granted the Department's plea to the jurisdiction and dismissed Lueck's suit. On appeal, Lueck asserts that the trial court erred in granting the Department's plea to the jurisdiction because the statutory requirement to file an administrative complaint within 180 days does not implicate the trial court's subject-matter jurisdiction. We will affirm the trial court's dismissal order.

BACKGROUND

In November 2003, Lueck was employed as the assistant director of traffic analysis in the Department's planning and programming division. According to his first amended petition, he was discharged on November 12, 2003 for gender-motivated reasons in violation of the Texas Commission on Human Rights Act, the relevant portions of which are now codified in chapter 21 of the labor code. See Labor Code §§ 21.001-.556. ¹ Lueck alleged that he was dismissed along with two other employees, both women, when those employees committed misconduct. Because the Department feared a gender discrimination suit would be brought by the female employees, Lueck asserted, the Department “fabricated excuses” to discharge him as well. He further alleged that after he was discharged, the Department realized that “there had been no reasonable basis to discharge him in the first place,” but decided that, “since [Lueck] was a male, it was not a good idea to rehire him.” Lueck pleaded that, “on more than one occasion,” the Department made the decision not to reinstate or rehire him because of his gender; he did not, however, identify the date or dates on which these decisions were allegedly made.

On June 21, 2005, Lueck filed his first complaint of sex discrimination with the civil rights division of the Texas Workforce Commission (the “Commission”). In the space on his intake questionnaire asking for “Date (month, day, & year) of the Last Incident of Discrimination,” Lueck responded, “Ongoing.” His description of the employment harm states: “Mr. Lueck was discharged and the employer refuses to rehire or compensate him.” In explaining how the adverse employment action was discriminatory, Lueck wrote that the Department “feared two disciplined females would sue [it] unless a token male was sacrificed.” On September 20, 2005, the Commission sent Lueck a “Dismissal Notice” stating that the information he provided “is not sufficient to file a claim of employment discrimination under the Texas Commission on Human Rights Act.” ²

In November 2005, Lueck filed suit against the Department under sections 106.001 and 106.002 of the civil practice and remedies code, asking the court to find that (1) he was improperly terminated and refused reinstatement or re-employment because of his gender, (2) the reasons given for his termination were pretexts for discrimination against him, (3) he was entitled to reinstatement and re-employment, and (4) he was entitled to entry of a permanent injunction prohibiting continued discrimination against him in his efforts to obtain reinstatement and employment. Lueck also sought an injunction reinstating him to employment with the Department, backpay, wages from the time of judgment until his reinstatement, compensatory damages, pre-and post-judgment interest, attorney's fees, and costs.

The Department filed a plea to the jurisdiction, arguing that Lueck's employment-discrimination claims were barred by sovereign immunity and that he did not timely exhaust his administrative remedies by filing his complaint within 180 days of the allegedly discriminatory employment action. See Labor Code § 21.202(a) (“A complaint under this subchapter must be filed not later than the 180th day after the date the alleged unlawful employment practice occurred.”). In so arguing, the Department relied on the jurisdictional facts asserted in Lueck's petition that he was discharged on November 12, 2003, and that he filed his administrative complaint with the Commission 587 days later, on June 21, 2005. The Department also attached evidence to its plea in response to Lueck's claim that, because of the Department's continued refusal to rehire him, the discrimination was “ongoing” after his November 12 discharge. This evidence included: Lueck's deposition, in which he stated that he applied for four different jobs with the Department in July and August 2004; (2) documents describing the Department's policy of filling positions within 60 days of the job's closing date; and (3) evidence that the job postings to which Lueck applied had all expired by October 2, 2004-i.e., more than 180 days before he filed his administrative complaint with the Commission. The Department further argued in its plea that Lueck's allegations under chapter 106 of the civil practice and remedies code were barred by sovereign immunity and that the 180-day filing requirement applied to those claims as well.

After a hearing, at which Lueck's attorney conceded that Lueck had not complied with the 180-day requirement in the statute, the trial court granted the Department's plea to the jurisdiction. Lueck appeals.

STANDARD OF REVIEW

In Texas, sovereign immunity deprives a trial court of subject-matter jurisdiction for lawsuits in which the state or certain governmental units have been sued unless the state consents to suit. Texas Parks & Wildlife Dep't v. Miranda, 133 S.W.3d 217, 224 (Tex.2004). The TCHRA provides a limited waiver of sovereign immunity when a governmental unit has committed employment discrimination on the basis of race, color, disability, religion, sex, national origin, or age, or when a governmental entity has retaliated or discriminated against a person who engaged in certain protected activities. See Labor Code §§ 21.002(8)(D), .051, .254 (West 2006); Mission Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653, 660 (Tex.2008); Texas Dep't of Criminal Justice v. Cooke, 149 S.W.3d 700, 704 (Tex.App.-Austin 2004, no pet.). Sovereign immunity from suit defeats a trial court's subject-matter jurisdiction and is therefore properly asserted in a plea to the jurisdiction. Miranda, 133 S.W.3d at 225-26.

Whether a court has subject-matter jurisdiction and whether a plaintiff has pleaded facts that affirmatively demonstrate subject-matter jurisdiction are questions of law that we review de novo. Id. at 226. In deciding a plea to the jurisdiction, we are not to weigh the merits of the plaintiff's claims but are to consider the plaintiff's pleadings, construed in the plaintiff's favor, and evidence pertinent to the jurisdictional inquiry. Id. at 227-28; County of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex.2002).

In this case, the jurisdictional inquiry turns on whether, for the Department's sovereign immunity from suit to have been waived, Lueck was required to have filed his administrative complaint with the Commission not later than 180 days after the allegedly unlawful employment practice occurred. The Department asserts that Lueck's pleadings and its own undisputed jurisdictional evidence establish that he failed to do so and that this failure jurisdictionally bars his claims. On appeal, Lueck does not challenge the Department's jurisdictional evidence regarding the relevant dates but argues instead that the 180-day rule does not implicate the trial court's jurisdiction and, by extension, the Department's immunity from suit. In a case such as this, in which the jurisdictional facts are undisputed, the court makes the jurisdictional determination as a matter of law based on those undisputed facts. Miranda, 133 S.W.3d at 227-28; University of Tex. v. Amezquita, No. 03-06-00606-CV, 2009 WL 1563533, at *1 (Tex.App.-Austin June 4, 2009, no pet.) (mem.op.). We review that determination de novo. Id.

To determine whether a statutory requirement is jurisdictional, we apply statutory interpretation principles. City of DeSoto v. White, 288 S.W.3d 389, 394 (Tex.2009). In so doing, our goal is to ascertain legislative intent by examining the statute's plain language. Id. We review this statutory-interpretation question de novo. Id.

DISCUSSION

In a single issue on appeal, Lueck asserts that the trial court erred in granting the Department's plea to the jurisdiction and dismissing his employment-discrimination claims for lack of subject-matter jurisdiction.

As a preliminary matter, we note that Lueck's pleadings in this case state that he was bringing his claims “[p]ursuant to” sections 106.001 and 106.002 of the civil practice and remedies code. This Court has held-and recently reaffirmed-that chapter 106 of the civil practice and remedies code does not comprehend employment-discrimination claims. See Wright v. Texas Comm'n on Human Rights, No. 03-03-00710-CV, 2005 WL 1787428, at *2 (Tex.App.-Austin July 27, 2005, pet. dism'd) (mem.op.); see also University of Tex. v. Poindexter, 306 S.W.3d 798, 813 (Tex.App.-Austin 2...