CHARLES KREGER

On Appeal from the 172nd District Court

Jefferson County, Texas

Trial Cause No. E-181,196

MEMORANDUM OPINION

Port Arthur Independent School District ("PAISD"), appeals the trial court's denial of a plea to the jurisdiction. PAISD argues that Edna Edwards failed to exhaust her administrative remedies under the Texas Education Code. We conclude from the allegations in Edwards's live pleading that she was not required to exhaust her administrative remedies under the Texas Education Code for the trial court to exercise jurisdiction over her lawsuit. We affirm the trial court's order.

BACKGROUND

PAISD hired Edwards in 1974 as a special education teacher. PAISD has continuously employed Edwards since that date and, in 1999, assigned her as Principal of Stephen F. Austin Middle School. In 2006, during the middle of the year and without prior notice, PAISD suddenly transferred Edwards to a position titled, "Interim Secondary Principal on Special Assignment for District Wide Alternative Programs." The transfer took place shortly after a former PAISD teacher testified in an unrelated breach of contract and retaliation lawsuit against PAISD, that Edwards told her that an assistant superintendent instructed Edwards not to rehire the teacher. Edwards believes that she was transferred to the new administrative position in retaliation for relating this information to the teacher. Edwards alleges that PAISD replaced her with someone that was less qualified, but had supported PAISD in the teacher's lawsuit. Edwards further claims she was "repeatedly and publicly harassed and berated by members of the PAISD administration for her alleged failure to support the PAISD."

Edwards filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC") based upon her transfer and the increasing hostility towards her. At the time of filing, she requested that her complaint be dually filed with the "Texas Workforce Commission Civil Rights Division." In a supplement to her original discrimination charge, Edwards claimed further retaliation against her for her opposition to PAISD's alleged discriminatory practices, for her participation in the teacher's lawsuit against PAISD, and for her filing a charge of discrimination against PAISD with the EEOC. Edwards received a right-to-sue letter on December 15, 2007.

Edwards filed suit on February 7, 2008. She alleged causes of action for discrimination and retaliation under the Texas Commission on Human Rights Act ("CHRA") and intentional infliction of emotional distress. See Tex. Lab. Code Ann. §§ 21.001-.556 (West 2006 & Supp. 2011). In May 2011, she amended her petition and dropped her claim for intentional infliction of emotional distress. In September 2011, PAISD filed a plea to the jurisdiction arguing that Edwards failed to exhaust her administrative remedies under PAISD's internal grievance policy and the Texas Education Code. Edwards responded that she was only required to exhaust her administrative remedies under the CHRA. The trial court denied PAISD's plea to the jurisdiction and this interlocutory appeal followed.

STANDARD OF REVIEW

A plea to the jurisdiction asserts that a court lacks jurisdiction to hear the merits of a case. City of Cleburne v. Trussell, 10 S.W.3d 407, 410 (Tex. App.—Waco 2000, no pet.). In reviewing a trial court's ruling on a plea to the jurisdiction, we must determine whether facts are alleged that affirmatively demonstrate the trial court's jurisdiction. City of Waco v. Lopez, 259 S.W.3d 147, 150 (Tex. 2008). We examine the allegations in the petition, take the allegations in the petition as true, and construe them liberally in favor of the plaintiff. City of Cleburne, 10 S.W.3d at 409; see also Lopez, 259 S.W.3d at 150. We may consider evidence when necessary to resolve the jurisdictional issues raised. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 555 (Tex. 2000). Subject matter jurisdiction is a question of law; therefore, we review the trial court's ruling on a plea to the jurisdiction de novo. Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex. 1998).

EXHAUSTION OF REMEMDIES UNDER THE TEXAS EDUCATION CODE

Generally, an aggrieved party is required to exhaust local administrative remedies as a prerequisite to filing suit if the party's claim (1) concerns the administration of school laws, and (2) involves questions of fact. Vela v. Waco Indep. Sch. Dist., 69 S.W.3d 695, 700 (Tex. App.—Waco 2002, pet. withdrawn); see also Austin Indep. Sch. Dist. v. Lowery, 212 S.W.3d 827, 831 (Tex. App.—Austin 2006, pet. denied). Section 7.057 of the Education Code, expressly grants the Commissioner of Education exclusive jurisdiction over claims involving:

(1) the school laws of this state; or
(2) actions or decisions of any school district board of trustees that violate:

(A) the school laws of this state; or
(B) a provision of a written employment contract between the school district and a school district employee, if a violation causes or would cause monetary harm to the employee.

Courts have held that employment discrimination suits brought under the CHRA do not involve "school laws of this state." In Vela, the trial court granted a plea to the jurisdiction alleging that the plaintiff failed to exhaust her administrative remedies under the Education Code. Vela, 69 S.W.3d at 697. The Waco Court of Appeals reversed the trial court's judgment and found that Vela's exhaustion of the administrative remedies under the CHRA was sufficient to establish jurisdiction. Id. at 701-02.

The plaintiff, Les Vela, filed suit against the Waco Independent School District ("WISD") alleging that WISD improperly discriminated against her because of her ethnicity and sex when she was reassigned from her position as principal of an elementary school to a position in the district's central office. Id. at 697. Vela filed a grievance with the WISD board of trustees, however, she dismissed her appeal before any ruling by the Commissioner of Education. Id. at 697 & n.1. Vela filed a complaint with both the EEOC and the Texas Commission on Human Rights ("TCHR") and received notice of her right to bring suit against the school district from the TCHR. Id. at 697

In its plea to the jurisdiction, WISD argued that a dual exhaustion requirement existed, and Vela was required to exhaust her remedies before both the TCHR and the Commissioner of Education before filing suit. Id. at 698. The court found significant that Vela's suit asserted "specific allegations of racial and sex discrimination under the CHRA." Id. at 700. The court concluded Vela had a claim under the CHRA because her allegations met the definition of "unlawful employment practice," WISD was an "employer" under the CHRA, and Vela exhausted her administrative remedies under the CHRA. Id.

Vela's case was governed by section 11.13 of the Education Code, the precursor to section 7.057. Id. at 701 n.2. The court reviewed a line of cases holding that a teacher's claim of breach of an employment contract involved the "administration of school laws," and therefore, fell within the jurisdiction of the Commissioner of Education. Vela, 69 S.W.3d at 701 (citing Godley Indep. Sch. Dist. v. Woods, 21 S.W.3d 656, 657, 660 (Tex. App. —Waco 2000, pet. denied) (exhaustion required where employee claimed that GISD breached teaching employment contract by failing to reimburse certain work related expenses and by withholding wages and retirement contributions for days employee was absent from work); Jones v. Dallas Indep. Sch. Dist., 872 S.W.2d 294, 295, 296-97 (Tex. App. —Dallas 1994, writ denied) (exhaustion required where employee claimed DISD declined to recommend her for certification and notified her she was ineligible for a new contract, in retaliation for her workers compensation claim); Caramanian v. Houston Indep. Sch. Dist., 829 S.W.2d 814, 817-18 (Tex. App.—Houston [14th Dist.] 1992, no writ) (exhaustion required where employee claimed breach of employment contract following reassignment at reduced salary for HISD's alleged failure to follow reduction in force policies). However, the court found no case holding that a school district employee's discrimination claim under the CHRA involves the administration of school laws, such that the employee must exhaust the administrative remedies in the Education Code before filing suit. Vela, 69 S.W.3d at 701; see also Lowery, 212 S.W.3d at 832.

In concluding that Vela was not required to exhaust the administrative remedies available under the Education Code, the court explained that "[t]he CHRA is a specific statute that creates a cause of action for an employee like Vela who believes she has been improperly discriminated against[,]" whereas the Education Code sets forth a "general provision." Vela, 69 S.W.3d at 701-02. The court recognized that the Education Code conceivably applied to Vela's situation. Id. at 702. However, because her specific claim of racial and gender discrimination was brought under a special statute held to be "'mandatory' and 'exclusive,'" the court concluded the intent of the CHRA was for Vela's claim to be subject only to the administrative remedies under the CHRA. Id.; see also City of Waco v. Lopez, 259 S.W.3d 147, 151-53 (Tex. 2008).

In City of Waco v. Lopez, the Texas Supreme Court noted that the CHRA was specifically enacted to address discrimination and retaliation in the workplace. Lopez, 259 S.W.3d at 153-54. The Court explained, "[b]y enacting the CHRA, the Legislature created a comprehensive remedial scheme that grants extensive protections to employees in Texas, implements a comprehensive administrative regime, and affords carefully constructed remedies." Id. The Supreme Court held that the CHRA provides the "exclusive state statutory remedy for public employees alleging retaliation arising from activities protected under the CHRA." Id. at 155

The plaintiff in Austin Independent School District v. Lowery was a bus driver hired by the district who disclosed on her job application that she suffered from an anxiety disorder. 212 S.W.3d at 829. After being forced to resign, she sued the district for disability discrimination under the CHRA. Id. The school district argued she failed to exhaust her administrative remedies under the Education Code, and she responded she was not required to do so when asserting a claim under the CHRA. Id. at 830. The Court concluded that Lowery "did not suggest that she had been aggrieved by a school law of this state[,]" and failed to identify any provision of the Education Code addressing discrimination or permitting school districts to adopt their own workplace discrimination rules. Id. at 831. The court concluded Lowery's employment discrimination claim did not concern "the administration of school laws" and was not subject to an exhaustion requirement under the Education Code. Id. at 832. The Austin Court of Appeals elaborated on why an exclusive, comprehensive legislative scheme is more appropriate to address discrimination and retaliation claims. Id. at 832-33. The court explained:

Workplace discrimination is not an issue that can be addressed effectively at the local level. The Act and the corresponding federal laws reflect our legislators' recognition of the fact that what constitutes discrimination and the remedies available to protect a party from discrimination should not be left to the varying attitudes of a local community in Texas or in any other state. Because preventing workplace discrimination is not a uniquely local concern, the general policy favoring local resolution does not apply . . . Just as a local school district law promoting or favoring discrimination would not trump state and federal laws prohibiting such behavior, [a school district's] local grievance procedures cannot trump the administrative remedies chosen in the Act.

PAISD argues that Vela, Lowery, and Larsen are distinguishable from the present case because they are "limited to causes of action solely for discrimination and/or retaliation, and not to breach of contract claims." PAISD contends that Edwards's claims are breach of contract claims disguised as employment discrimination claims, and therefore, fall within the exclusive jurisdiction of the Commissioner of Education under section 7.057(a)(2)(B). See Tex. Educ. Code Ann. § 7.057(a)(2)(B). PAISD relies on the fact that Edwards was a contracted employee in 2006 as principal of Austin Middle School. PAISD points to a provision in Edwards's 2006 contract which states, "Employee shall be subject to assignment and reassignment of positions or duties, additional duties, changes in responsibilities or work, transfers, or reclassification at any time during the contract term." PAISD asserts that "Edwards'[s] main complaint deals with her employment contract with the school district."

The fact that Edwards was a contracted employee at the time of her initial transfer in 2006 and could have contested her transfer through PAISD's grievance procedure is not dispositive of the issue before us. We conclude the reasoning in Vela and Lopez applies in the present case. PAISD's position that Edwards was required to exhaust its grievance policy and appeal to the Commissioner of Education before filing suit is contrary to the Vela Court's conclusion that while such administrative remedies may conceivably apply to an employee's claims, it is the Legislature's intent that work-related discrimination claims that fall within the purview of the CHRA be subject only to the administrative remedies in the Act. See Vela, 69 S.W.3d at 702. The Supreme Court expressly stated in Lopez that the CHRA provides the "exclusive state statutory remedy" for work-related discrimination and retaliation claims. Lopez, 259 S.W.3d at 155. The Legislature's intent that the Education Code not act as a bar to more specific and narrowly tailored state statutory remedies is further evidenced by the Legislature's subsequent amendment of section 7.057. In 2009, the Legislature added subsection (a-1), which states that an employee is "not required to appeal to the commissioner before pursuing a remedy under a law outside of Title 1[.]" Tex. Educ. Code Ann. § 7.057(a-1).

Edwards has not asserted a claim for breach of her employment contract. Edwards does not contend that her transfer violated the terms of her 2006 contract with PAISD. See Tex. Educ. Code Ann. § 7.057(a)(2)(B). Rather, Edwards asserts that she was transferred in retaliation for her opposition to PAISD's discriminatory practices and for helping a teacher in regards to pending litigation against PAISD. The CHRA makes it an "unlawful employment practice" for an employer to retaliate against an employee for opposition to an employer's discriminatory practice or for an employee's assistance in an investigation, proceeding, or hearing. See Tex. Lab. Code Ann. § 21.055(1)(4). Additionally, Edwards alleges other acts of retaliation in addition to her 2006 transfer, including acts of retaliation occurring as late as June 2007.

Relying on section 21.2585(c), PAISD further argues that the nature of Edwards's claims is evidenced by her request for breach of contract damages. See id. § 21.2585(c) (providing that an award of compensatory damages may not include back pay). We disagree. In determining whether the court has subject-matter jurisdiction, we look to the factual allegations in the petition. See City of Cleburne, 10 S.W.3d at 409. Moreover, we note that in Edwards's petition she seeks an injunction and all equitable relief available to her. See id. § 21.258(b) ("Additional equitable relief may include: (1) hiring or reinstating with or without back pay [and]; (2) upgrading an employee with or without pay[]"). The CHRA is the proper vehicle for Edwards to pursue a remedy for her retaliation claim against PAISD. See Lopez, 259 S.W.3d at 155; Vela, 69 S.W.3d at 702; see also Tex. Lab. Code Ann. § 21.055. We hold Edwards was not required to exhaust her remedies under the Texas Education Code prior to filing her civil suit.

EXHAUSTION OF REMEDIES UNDER THE CHRA

The CHRA governs employment discrimination claims in Texas. Tex. Lab. Code Ann. §§ 21.001-.556. As a mandatory prerequisite to filing suit under the Act, an employee must first exhaust administrative remedies under the Act. Schroeder v. Texas Iron Works, Inc., 813 S.W.2d 483, 485 (Tex. 1991). Specifically, a plaintiff must: (1) file a complaint with the TCHR within 180 days of the alleged discriminatory act; (2) allow the TCHR to dismiss or resolve the complaint within 180 days before filing suit; and (3) file suit no later than two years after the complaint is filed. See Tex. Lab. Code Ann. §§ 21.201-.202, .208, .256; Rice v. Russell-Stanley, L.P., 131 S.W.3d 510, 513 (Tex. App.—Waco 2004, pet. denied). Because the CHRA was designed to work alongside the EEOC, an aggrieved employee may satisfy the burden to "file a complaint" with the TCHR by filing a charge with the EEOC and indicating on the form the desire to have it dually-filed with the State agency. See Williams v. Vought, 68 S.W.3d 102, 108 (Tex. App.—Dallas 2001, no pet.) ("A complaint filed with the EEOC, and forwarded by the EEOC to the TCHR, satisfies the requirements of the TCHRA."); see also Rice, 131 S.W.3d at 513 ("When a complainant files an initial charge with the EEOC, the charge will also be considered filed with the TCHR."); Burgmann Seals Am. Inc. v. Cadenhead, 135 S.W.3d 854, 857 (Tex. App.—Houston [1st Dist.] 2004, pet. denied) (holding that providing the name of the TCHR and checking the box for simultaneous filing "with both the EEOC and the State or local Agency, if any" was equivalent to filing with the TCHR).

Once TCHR receives the complaint from the EEOC it will "investigate [the] complaint and determine if there is reasonable cause to believe that the respondent engaged in an unlawful employment practice." Tex. Lab. Code Ann. § 21.204(a). The TCHR must inform the complainant of dismissal or failure to resolve the complaint in writing by certified mail. Id. § 21.208. A complainant who receives notice under section 21.208 that the complaint is not dismissed or resolved may request written notice of the complainant's right to file suit. Id. § 21.252. An employee may file a civil suit within sixty days after the date notice of the right to file a civil suit is received from the TCHR. Id. § 21.254.

Edwards alleged in her petition that she timely filed a complaint with the EEOC and received a right-to-sue letter from the EEOC on December 15, 2007. Edwards complaint was filed on April 23, 2007 and indicates that she requested it be dually filed with the "Texas Workforce Commission Civil Rights Division." Edwards suit was filed on February 7, 2008, at least 181 days after her dual filing and within the two year statutory deadline. Id. §§ 21.202, 21.256. PAISD does not dispute Edwards's exhaustion of her administrative remedies under the TCHRA.

We overrule PAISD's sole issue in this interlocutory appeal and affirm the order of the trial court.

AFFIRMED.

________________

CHARLES KREGER

Justice
Before McKeithen, C.J., Gaultney and Kreger, JJ.