Tex. Dep't of Transp. v. Esters

• Decision Date: 03 May 2011
• Docket Number: No. 14–10–00152–CV.,14–10–00152–CV.
• Citation: 343 S.W.3d 226
• Parties: TEXAS DEPARTMENT OF TRANSPORTATION, Appellant,v.Mathew ESTERS, Appellee.
• Court: Texas Court of Appeals

343 S.W.3d 226

TEXAS DEPARTMENT OF TRANSPORTATION, Appellant,

v.Mathew ESTERS, Appellee.

No. 14–10–00152–CV.

Court of Appeals of Texas, Houston (14th Dist.).

May 3, 2011.

Randall K. Hill, Austin, for appellant.Debra Vera Jennings, Houston, for appellee.Panel consists of Justices ANDERSON, FROST, and BROWN.

MAJORITY OPINION ¹

KEM THOMPSON FROST, Justice.

A former employee of a state agency filed suit against the agency asserting various claims, including retaliation claims under Title VII, ² section 21.055 of the Texas Labor Code,³ and sections 1981 and 1983 of Title 42 of the United States Code.⁴ The trial court denied the agency's request that these retaliation claims be dismissed for lack of subject-matter jurisdiction based on the employee's alleged failure to exhaust administrative remedies. On interlocutory appeal, we conclude that the trial court has jurisdiction over the employee's retaliation claims under section 21.055 and Title VII to the extent they are based on alleged retaliation against him for filing a charge of discrimination in March 2006. We conclude that the trial court lacks jurisdiction over (1) the employee's section 21.055 claims and Title VII claims to the extent they are based on alleged retaliation against the employee for reasons other than the filing of this charge, and (2) the employee's remaining claims against the state agency under sections 1981 and 1983 of Title 42 of the United States Code. Accordingly, we reverse in part, affirm in part, and remand for further proceedings consistent with this opinion.

I. Factual and Procedural Background

Appellee/plaintiff Mathew Esters was a longtime employee of appellant/defendant Texas Department of Transportation (hereinafter, the “Department”). On March 3, 2006, Esters filed a charge of discrimination with the Texas Workforce Commission Civil Rights Division (hereinafter, the “Commission”) and with the Equal Employment Opportunity Commission (hereinafter, the “EEOC”). In this charge, Esters, an African American, alleged racial discrimination and asserted the following:

• From the time Esters's supervisor, Stanley Yin, began his employment with the Department on or about 1993, Esters has been denied promotions given to less-qualified employees who were not African American.

• Since approximately 1993, Esters has been subject to racial harassment from Yin in the form of inappropriate comments.

• When Esters was denied promotions, Yin would tell him that he was not promoted because he “didn't measure up.” Yin also told Esters that he would not be promoted as long as Esters was working at the Department.

• Esters believes he was discriminated against because of his race in violation of Title VII.

Four weeks after filing this charge, Esters left the Department's employment by taking early retirement. The EEOC processed Esters's charge of discrimination for itself as to the Title VII claims and for the Commission as to any claims under Chapter 21 of the Texas Labor Code. The EEOC conducted an investigation. On April 28, 2006, the EEOC closed its file on this charge because, based on its investigation, it was unable to conclude that the information obtained established violations of the statutes. The EEOC gave Esters a notice of his right to sue the Department within ninety days of Esters's receipt of the notice. On May 12, 2006, the Commission gave Esters notice of his right to sue the Department in state court within sixty days of his receipt of the notice.

The following month, on June 6, 2006, Esters filed a charge of discrimination with the EEOC (the “Second Filing”). Esters did not characterize the Second Fling as a new charge of discrimination; instead, Esters filed this charge under the same charge number as the March 3, 2006 charge and stated that the filing was an amendment of the prior charge. In the Second Filing, Esters alleged both racial discrimination and retaliation. In this filing, Esters stated that he was amending his prior charge to include the following allegations:

• From 1993 until Esters's constructive discharge in 2006, Esters was denied promotions, paid less, and subjected to racial innuendos by his superior.

• Esters was subjected to a racially hostile work environment. Yin, his supervisor wanted him to celebrate Confederate Heroes Day instead of the Martin Luther King holiday.

• Yin told him he was not promoted because he “didn't measure up” and “was a Black token.” Yin also told him that as long as Yin worked at the Department Esters would never be promoted. Esters was threatened with termination if he did not attend a certain class.

• After Esters complained about the discrimination to management from 1993 through 2006, Yin retaliated against him by (1) requiring him to work on hazardous materials without proper training, (2) assigning him to low-level jobs, (3) denying him pay raises commensurate with a twenty-six-year employee, (4) circumventing orders given by the Director of Engineers, and (5) threatening to terminate Esters if he did not attend a “hot mix class.”

The record does not reflect that the EEOC or the Commission ever took any action on the Second Filing. Esters filed suit against the Department on July 11, 2006. In his second amended petition, Esters asserted claims under the following statutes based on alleged racial discrimination, constructive discharge, and retaliation: Title VII (42 U.S.C. § 2000e et seq.); Chapter 21 of the Texas Labor Code; Title 42, section 1981 of the United States Code; and Title 42, section 1983 of the United States Code.

In an initial plea to the jurisdiction, the Department asserted that the trial court lacked jurisdiction over Esters's claims under sections 1981 and 1983 of Title 42 of the United States Code (hereinafter collectively “1981 and 1983 Claims”) based on the Department's immunity under the Eleventh Amendment to the United States Constitution. At a pretrial conference on October 16, 2009, the trial court granted Esters leave to file a third amended petition adding Yin as a defendant in his official capacity. After hearing argument, the trial court then sustained in part the Department's first plea to the jurisdiction, dismissing Esters's 1981 and 1983 Claims against the Department except to the extent that Esters seeks prospective, equitable relief under these claims.

The Department then asserted a plea to the jurisdiction, arguing that there is no statutory waiver of governmental immunity as to Esters's retaliation claims because Esters failed to exhaust administrative remedies regarding these claims. The trial court denied this second plea to the jurisdiction, and the Department has appealed under section 51.014(a)(8) of the Texas Civil Practice and Remedies Code. See Tex. Civ. Prac. & Rem.Code Ann. § 51.014(a) (West 2008).

II. Analysis

A. What was the effect of the Second Filing?

The substance of the Second Filing was not a second charge of discrimination but an attempt to amend the March 3, 2006 charge (hereinafter, “Original Charge”). This attempt to amend the Original Charge occurred more than a month after the EEOC had completed its investigation of the Original Charge, sent Esters a right-to-sue notice regarding that charge, and closed its file on the Original Charge. Presuming for the sake of argument that the EEOC had the discretion to treat the Second Filing as a new and independent charge, there is no evidence that it has done so, and counsel for the Department and Esters both agreed during oral argument in the trial court that there has been no administrative response to the Second Filing. On this record, Esters's attempt via the Second Filing to amend the Original Charge, which was no longer pending before the EEOC, was ineffective as a matter of law. See Balazs v. Liebenthal, 32 F.3d 151, 157 (4th Cir.1994); Mack v. The Housing Auth. for the City of Athens, Ga., 2010 WL 797211, at *3 (M.D.Ga. Mar. 3, 2010); Hazeur v. Federal Warranty Serv. Corp., 2000 WL 365013, at *2 (E.D.La. Apr. 7, 2000); Danley v. Book–of–the–Month Club, Inc., 921 F.Supp. 1352, 1353–54 (M.D.Pa.1996), aff'd, 107 F.3d 861 (3rd Cir.1997). Therefore, the only charge by which Esters could have exhausted administrative remedies is the Original Charge, which contains no allegations of any retaliation against Esters.

B. Did Esters exhaust remedies as to his retaliation claims under section 21.055 and Title VII?

Having concluded that the Original Charge is the only valid administrative filing by which Esters could have exhausted administrative remedies, we now must decide whether the Original Charge was sufficient to exhaust remedies as to Esters's retaliation claims under section 21.055 of the Texas Labor Code (hereinafter, “State Retaliation Claims”) and under Title VII (hereinafter, “Title VII Retaliation Claims”). In his live petition, Esters asserts State Retaliation Claims and Title VII Retaliation Claims based on the Department's alleged retaliation against Esters, in various ways, for opposing racial discrimination through Esters's alleged complaints to management and internal complaints (hereinafter collectively, “Complaint Retaliation Claims”). Esters also asserts State Retaliation Claims and Title VII Retaliation Claims based on the Department's alleged retaliation against Esters, in various ways, for filing the Original Charge (hereinafter collectively, “Charge Retaliation Claims”).

Texas law applies to the State Retaliation Claims and federal law applies to the Title VII Retaliation Claims. See Torres v. Johnson, 91 S.W.3d 905, 908–12 (Tex.App.-Fort Worth 2002, no pet.). Under both state and federal law, Esters exhausted his administrative remedies only as to the complaints made in the Original Charge and factually related claims that reasonably could be expected to grow out of the administrative investigation of that charge. See Fine v. GAF Chem. Corp., 995 F.2d 576, 578 (5th Cir.1993); Thomas v. Clayton Williams Energy, Inc., 2 S.W.3d 734, 738 ...