Fort Bend Cty. v. Davis, 139 S. Ct. 1843 (2019)

EEOC Discrimination Complaint Filing- Jurisdictional or Mandatory

An employee of Fort Bend County, a governmental entity, filed a charge alleging sexual harassment and retaliation for reporting the harassment. She was subsequently terminated for failing to show up for work due to a church event, but never formally amended her charge to include any allegation of religious discrimination. She later sued, claiming religious discrimination and retaliation for reporting sexual harassment. After years of litigation, the employer raised for the first time the argument that the trial court lacked jurisdiction over the religious discrimination claim because the employee had failed to include it in her charge. The trial court agreed, but the U.S. Court of Appeals for the Fifth Circuit reversed the trial court. The Fifth Circuit held that the requirement is not jurisdictional and that the employer had forfeited the enforcement of the requirement because it had waited too long to raise the objection. The county appealed to the U.S. Supreme Court. A unanimous Supreme Court held that the charge-filing prerequisite is a non-jurisdictional claims-processing rule. The Court noted that the charge-filing provisions of Title VII are separate from the jurisdiction provisions that grant courts the authority to hear Title VII cases. The charge-filing provisions set forth certain mandatory procedural obligations for the complainant, which may be waived by the employer, as happened in the case at issue. The Supreme Court emphasized that its holding that the charge-filing requirement is non-jurisdictional “gives plaintiffs scant incentive to skirt the instruction,” since “[a] Title VII complainant would be foolhardy consciously to take the risk that the employer would forgo a potentially dispositive defense.”

Tex. DOT v. Flores, 2019 Tex.App. LEXIS 3918, 2019 WL 2121508 (Tex.App.-El Paso 2019)

Texas Labor Code ¶ 21 Age Discrimination-Jury Instruction

This is an age discrimination case under state law against a state entity, Texas Dept. of Transportation (TxDOt). TxDOT filed a plea to the jurisdiction, which is similar to a motion for summary judgment; however, the employee is put to the burden of proving a prima facie case in order to prove jurisdiction and survive the dismissal motion. This case was tried to a jury after the district court denied the motion to dismiss resulting in a jury verdict for the employee. TxDOT appealed the motion to dismiss and the jury verdict; however, the Court of Appeals (COA) affirmed the verdict. The COA held that the “permissive pretext only” jury instruction was proper, which instructed the jury that if the jury believed the employer’s stated reason for an employment action is false, the jury is permitted “to find that the employer was actually motivated by discrimination.” TxDOT requested a “pretext-plus” instruction, which is a stricter burden that requires the plaintiff to not only disprove an employer’s proffered reasons for the discrimination, but also to introduce additional evidence of discrimination, which instruction was disapproved in Quantum Chem. Corp. v. Toennies, 47 S.W.3d 473 (Tex. 2001) as well as being held to be reversible error in Ratliff v. City of Gainesville, Tex., 256 F.3d 355, 359-60 (5th Cir. 2001). The COA also acknowledged that the permissive pretext only instruction is now in the Texas Pattern Jury Charge (2018) PJC 107.6.

Mosley v. Texas Health & Human Services Commission ___S.W.3d ___, 2019 Tex. LEXIS 427; 62 Tex. Sup. J. 894

Employment Law-Administrative Procedure

The Supreme Court affirmed part and reversed in part the judgment of the court of appeals holding that the trial court lacked jurisdiction over Petitioner’s appeal because she did not seek rehearing of an Administrative Law Judge’s (ALJ) ruling and that the agency in this case did not deprive Petitioner of due process, holding that the trial court lacked jurisdiction but that the agency violated Petitioner’s right to due process. An ALJ sustained the Texas Department of Family and Protective Services’ determination that Petitioner’s name be submitted to the Employee Misconduct Registry unless she timely petitioned for judicial review. In its letter, the Health and Human Services Commission failed to explain that filing a motion for rehearing was a prerequisite for judicial review. The trial court overruled the agencies’ plea to the jurisdiction but ruled for them on the merits of Petitioner’s appeal. The court of appeals reversed the trial court’s judgment on the jurisdictional plea and rendered judgment that Petitioner’s failure to seek rehearing deprived the trial court of subject matter jurisdiction. The Supreme Court held (1) the trial court lacked jurisdiction to consider Petitioner’s case; but (2) the agencies deprived Petitioner of her right to judicial review by misrepresenting the proper procedures to seek judicial review of the adverse order.

Apache Corp. v. Davis, 573 S.W.3d 475 (Tex.App.-Houston, 2019)

Texas Labor Code Ch. 21 Age/Gender Discrimination & Retaliation

On an employer’s challenge to a judgment in favor of its former employee on her retaliation claim under Tex. Lab. Code Ann. § 21.055, legally sufficient evidence supported the jury’s findings that the employee engaged in a protected activity and that the employer retaliated against her for making a complaint. To invoke the anti-retaliation protection of the Texas Labor Code, an employee must oppose conduct the employee reasonably believes is prohibited by the Code. Magic words are not required, but simply complaining of “harassment,” “hostile environment,” “discrimination,” or “bullying” is not sufficient. There must be some indication that the protected class at issue motivated the conduct opposed. Details or incidents not included in the complaint to the Texas Workforce Commission Civil Rights Division (TWCCRD) cannot be considered in determining whether the employee alerted the employer of a reasonable belief that age discrimination had occurred. [Note:This is a caution to practitioners that the courts seem to be requiring more details of the complained-of incident in the TWCCRD complaint] The court ruled that an email written by the employee sufficiently identified acts of age and gender discrimination to constitute a protected activity under the standards for legal and factual sufficiency review. The court discussed the issue of retaliation and the burden of proof of retaliation being “but-for” standard of causation to prove retaliation. The court stated that to determine whether sufficient evidence of but-for causation exists, courts examine all of the circumstances, including the following factors: temporal proximity between the protected activity and the adverse action, knowledge of the protected activity, expression of a negative attitude toward the employee’s protected activity, failure to adhere to relevant established company policies, discriminatory treatment in comparison to similarly situated employees, and evidence the employer’s stated reason is false. Based on this standard the court held that the employee had proved but-for causation of retaliation. Also, the court ruled that sufficient evidence supported the award of fees with the exception of a portion of the fees awarded for one attorney’s time. Because the employee timely filed a remittitur, the trial court’s judgment was modified to change the amount of attorneys’ fees awarded to $696,616.

Tex. DOT v. Lara, 2019 Tex. App. LEXIS 3737; 2019 WL 2052930 (Tex.App.-Austin 2019)

Texas Labor Code ¶ 21 Disability Discrimination-Retaliation for Requesting Reasonable Accommodation Conflict

The Austin Court of Appeals (COA) held that a trial court properly overruled the Texas Department of Transportation’s plea to the jurisdiction on a former employee’s discrimination claim under the Texas Commission on Human Rights Act (TCHRA) because the record presented genuine questions of fact as to the reasonableness of the employee’s requested accommodation of an additional five weeks of unpaid leave to allow for the recovery time recommended by his doctor and the undue hardship alleged by the Department. However, the COA refused to recognize a TCHRA law retaliation cause of action for the action of requesting or receiving a reasonable accommodation. The COA recognized that the Americans with Disabilities Act (ADA) language prevents retaliation for requesting an accommodation when it states that “it shall be unlawful to… interfere with any individual in the exercise or enjoyment of…any right granted or protected by this chapter.” The COA contrasted this language with TCHRA § 21.055 which prevents retaliation for opposing a discriminatory practice, making or filing a charge, filing a complaint, or testifies, assists, or participates in any manner in an investigation, proceeding, or hearing. The COA held that the TCHRA language did not protect against retaliation because the language did not include the ADA language as to not “interfer[ing] with any individual in the exercise or enjoyment…of any right granted or protected by this chapter.” The COA recognized that this holding conflicts with the San Antonio Court of Appeals holdings in two cases in which it recognized the cause of action under the TCHRA of retaliation for requesting or receiving a reasonable accommodation for a disability. [see Texas Dept. of State Health Servs. v. Rockwood, 468 S.W.3d. 147 (Tex.App.-San Antonio 2015, no pet.) & Texas State Office of Admin. Hearings v. Birch, 2013 Tex.App. LEXIS 9065, 2013 WL 3874473 (Tex.App.San Antonio 2013, pet. denied.] [NOTE: In light of this conflict, if a retaliation for seeking or using a reasonable accommodation may exist, a prudent attorney may want to consider alleging an ADA retaliation violation in addition to a TCHRA retaliation violation until this conflict issue is decided. Of course, if the state of Texas or an agency is involved, as in the above case, this may be challenging since the state still contends it has not waived immunity to suits under the ADA, although arguments are made that it has waived it if any federal money is accepted by the agency. If the state or an agency is not involved, another consideration with alleging an ADA violation is that the defendant will probably remove to federal court, which is not always a bad thing since the Fifth Circuit has been reasonably receptive to disability cases lately.]

Univ. of Tex. at El Paso v. Isaac, 568 S.W.3d 175 (Tex.App.-El Paso 2018, no pet.)

State Discrimination Charge Filing-Governmental Entity- Jurisdictional or Not

A former employee sued the University of Texas at El Paso (“UTEP”), a governmental entity, for unlawful discrimination by the university under the Texas Commission on Human Rights Act (“TCHRA”). The employee 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 that the employee 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. The Court of Appeals reversed holding that the denial of the university’s plea to the jurisdiction in the employee’s action for unlawful discrimination by the university under the TCHRA was improper under Tex. Lab. Code Ann. § 21.201(a), (b), because the form used by the employee was not made under oath nor timely amended. Because the employee failed to file her complaint under oath within 180 days after the alleged unlawful employment practice occurred, the university properly asserted a plea to the jurisdiction and the plea should have been granted. The Court noted that Reid v. SSB Holdings, Inc., 506 S.W.3d 140 (Tex. App.— Texarkana 2016, pet. denied) faced an almost identical issue to the one before them; namely, the claimant submitted a pre-suit questionnaire not made under oath as required by section 21.201(b) of the Labor Code. On appellate review, the Reid court determined the trial court erred in granting the respondent’s plea to the jurisdiction based on an unverified questionnaire; however the Issac court distinguished Reid because it involved a suit filed against a private employer as opposed to this case against a governmental entity. Further the Isaac court held that based on the text of section 311.034 of the Texas Government Code and court precedents, the requirement of a complaint under oath is a mandatory provision that is a prerequisite of filing a suit under the TCHRA against a governmental entity.
[Note: It remains to be seen what effect the recent U.S. Supreme Court case of Fort Bend Cty. v. Davis, discussed above, will have on this case and others like it, related to government entities. This is why I recommend that a complainant to the TWCCRD swear under oath to the intake questionnaire by adding it to the bottom of the document. Another issue that may arise is that the formal complaint of the TWCCRD has the complainant sign an “unsworn declaration” under penalty of perjury, as permitted by Texas Civil Practice & Remedies Code sec. 132.001. This statute provides that an unsworn declaration may be used in lieu of an oath required by statute and it provides for certain requirements as to the unsworn declaration. Because this provision conflicts with this case and the Labor Code requirement of an oath, it remains to be seen how the courts will deal with this issue. The prudent attorney may want to have his client swear to the complaint (especially if the case involves the state or a state agency), as well as the intake questionnaire until this is settled.]

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