Univ. of Tex. at El Paso v. Isaac

• Decision Date: 19 September 2018
• Docket Number: No. 08-16-00268-CV,08-16-00268-CV
• Citation: 568 S.W.3d 175
• Parties: UNIVERSITY OF TEXAS AT EL PASO, Appellant, v. Jamie ISAAC, Appellee.
• Court: Texas Court of Appeals

568 S.W.3d 175

UNIVERSITY OF TEXAS AT EL PASO, Appellant,

v.Jamie ISAAC, Appellee.

No. 08-16-00268-CV

Court of Appeals of Texas, El Paso.

September 19, 2018

ATTORNEY FOR APPELLANT: Hon. Kristofer S. Monson, Office of The Solicitor General, P.O. Box 12548 (MC-059), Austin, TX 78711.

ATTORNEY FOR APPELLEE: Hon. Jeffrey B. Pownell, Scherr & Legate, PLLC, 109 N. Oregon, 12th Floor, El Paso, TX 79901.

Before McClure, C.J., Rodriguez, and Palafox, JJ.

OPINION

GINA M. PALAFOX, Justice

Jamie Isaac sued the University of Texas at El Paso ("UTEP") for unlawful discrimination by the university under the Texas Commission on Human Rights Act ("TCHRA").¹ Isaac alleged that UTEP discriminated against her based on her age by denying employment and in failing to respond or interview her for an available position for the fall semester of 2013. UTEP filed a plea to the jurisdiction asserting, inter alia , that Isaac had not exhausted her administrative remedies, and that the trial court therefore lacked jurisdiction. The trial court denied UTEP’s plea to the jurisdiction. In this interlocutory appeal, UTEP appeals the trial court’s decision. We reverse and render judgment dismissing Isaac’s claim of employment discrimination.

I. BACKGROUND

Jamie Isaac was employed by the University of Texas at El Paso (UTEP) as a full-time Developmental Math lecturer from 1997 until her retirement in 2001. From 2001 to 2011, Isaac then taught math as a part-time lecturer with the regular math department of the university. In the spring or summer of 2013, Isaac learned from her friend Anna Moschopoulos of openings for the fall 2013 semester back in the Developmental Math Department (the "Department"). Moschopoulos, also a math lecturer, informed Isaac there would be three vacancies in the fall of 2013 since she (Moschopoulos) would not be rehired and two other lecturers would also not be returning. The Department had not publicly announced any openings or otherwise communicated to Isaac any available positions.

Isaac telephoned Cynthia Denise Lujan, the director of the Department, sometime in the summer of 2013 to inquire about available positions. Lujan testified at a deposition that she had not posted job openings for the Department but she nevertheless informed Isaac that she was welcome to submit her resume for the Department’s file. Isaac contradicted Lujan, stating in an affidavit that she submitted her resume in response to Lujan’s direct instructions.² Nonetheless, Lujan claimed she never saw or received Isaac’s resume for a position with the Department. Isaac, then 65 years of age, claimed she received no response to her resume.

During her deposition, Isaac stated that she learned that the Department hired other persons whom she described as younger and less qualified than herself. On November 27, 2012, Lujan recommended Rosa Hernandez, then approximately 55 years of age, for the "Developmental Math Faculty Position" to begin working at the Department in January 2013. Additionally, Lujan hired Saul Soto, then in his late thirties, in June 2013 to begin working as a full-time lecturer in September 2013. Then, in May 2014, Lujan hired Haydee Montes Saucedo, a woman in her thirties, to begin working as a full-time lecturer at the Department in January 2015.

The Intake Questionnaire

Believing that UTEP had engaged in a discriminatory hiring practice, Isaac contacted the Equal Employment Opportunity Commission ("EEOC") and completed an intake questionnaire which she signed and dated on November 30, 2013. In the questionnaire, Isaac identified UTEP as the employer she believed had committed the discriminatory act. Isaac wrote that she believed UTEP had discriminated against her based on her age when UTEP did not interview or hire her for a lecturer position. Isaac further explained that UTEP alternatively hired two younger individuals who were less qualified than her, and wrote in that she had been informed that during a faculty meeting, it "was stated: ‘we need young blood.’ " She identified Lujan as the immediate supervisor, stated that she applied for the "math lecturer" position in June of 2013, to begin on August 26, 2013, and marked the "Age" box for the basis of her claim of employment discrimination. Immediately before the questionnaire’s signature block, the following text appeared:

Please check one of the boxes below to tell us what you would like us to do with the information you are providing on this questionnaire. If you would like to file a charge of job discrimination, you must do so either within 180 days from the day you knew about the discrimination, or within 300 days from the day you knew about the discrimination if the employer is located in a place where a state or local government agency enforces laws similar to the EEOC’s laws. If you do not file a charge of discrimination within the time limits, you will lose your rights. If you would like more information before filing a charge or you have concerns about EEOC’s notifying the employer ... about your charge, you may wish to check Box 1. If you want to file a charge, you should check Box 2.

BOX 1

I want to talk to an EEOC employee before deciding whether to file a charge. I understand that by checking this box, I have not filed a charge with the EEOC. I also understand that I could lose my rights if I do not file a charge in time.

BOX 2

? I want to file a charge of discrimination, and I authorize the EEOC to look into the discrimination I described above. I understand that the EEOC must give the employer ... that I accuse of discrimination information about the charge, including my name. I also understand that the EEOC can only accept charges of job discrimination based on race, color, religion, sex, national origin, disability, age, genetic information, or retaliation for opposing discrimination.

Isaac marked Box 2, signed, and dated the form November 30, 2013. The questionnaire itself did not contain verification language nor require Isaac to attest under oath or penalty of perjury.

The EEOC case log reflects that the EEOC subsequently contacted Isaac on several occasions, requesting her to provide the EEOC with additional information. On March 7, 2014, an EEOC investigator interviewed Isaac by phone and entered an abbreviated note stating that Isaac would call back with additional information relevant to her case no later than March 14. The next entry, dated March 19, 2014, reflects that Isaac called on March 14 and left a voicemail. A member of the EEOC staff called her back that day and left a voicemail asking Isaac to call back to continue with the processing of her claim. EEOC staff left a second voicemail on March 26 requesting a return call to finish processing her claim. EEOC notes reflect that Isaac was also informed in the message that her case would be submitted on March 28 if she did not call back before then.

On April 10, the EEOC closed Isaac’s claim based on its determination that it was unable to conclude that the information obtained established any unlawful, discriminatory violations. The notice also provided that the EEOC did not certify that the university was complying with relevant statutes. The "Dismissal and Notice of Rights" letter sent to Isaac, dated April 10, 2014, stated:

This will be the only notice of dismissal and of your right to sue that we will send you. You may file a lawsuit against the respondent(s) under federal law based on this charge in federal or state court. Your lawsuit must be filed WITHIN 90 DAYS of your receipt of this notice ; or your right to sue based on this charge will be lost. (The time limit for filing suit based on a claim under state law may be different.)[.]

On the same day, the EEOC sent two additional notices. First, as to UTEP, the EEOC sent a form titled, "Notice of Charge of Discrimination," in which it provided notice that Isaac had filed a "charge of employment discrimination," in which she alleged age discrimination. Second, to the Texas Workforce Commission Civil Rights Division, the EEOC sent EEOC Form 212-A (3/98) informing the commission that it had received a charge of employment discrimination from Isaac against UTEP and it would initially investigate the charge pursuant to a worksharing agreement.

On May 29, 2014, Isaac filed suit under the TCHRA, claiming UTEP had discriminated against her based on her age when she was not called for an interview in August of 2013. UTEP filed a plea to the jurisdiction and motion for traditional and no-evidence summary judgment.³ The trial court denied UTEP’s plea and motion. This interlocutory appeal followed.⁴

II. DISCUSSION

UTEP raises three issues on appeal: first, whether the trial court erred in denying UTEP’s plea to the jurisdiction because Isaac failed to exhaust her administrative remedies by failing to satisfy the oath obligation under the TCHRA; second, whether the trial court erred in denying UTEP’s motion for summary judgment since Isaac failed to establish every element of her prima facie case of age discrimination; and third, whether the trial court erred in denying UTEP’s motion for summary judgment since UTEP presented legitimate, nondiscriminatory reasons for its employment decision and Isaac failed to show that UTEP’s stated reasons were pretextual.

Plea to the Jurisdiction and the TCHRA

In UTEP’s first issue, it argues that the trial court erred in not dismissing the case for lack of jurisdiction based on Isaac having filed an unsworn intake questionnaire with the EEOC, as opposed to a writing made under oath, as required by Section 21.201(b) of the TCHRA. UTEP contends that the filing of a sworn complaint is a statutory prerequisite to filing an age discrimination suit against a governmental employer. Without a sworn complaint, UTEP contends there is no waiver of immunity and the suit is jurisdictionally barred. Isaac agrees that the oath requirement is mandatory, but nonetheless argues her lack of filing a sworn complaint is not a jurisdictional defect. For...