Opinion
NO. 01-20-00067-CV
12-08-2020
KIM COOGAN, Appellant v. OFFICE OF THE ATTORNEY GENERAL, Appellee
On Appeal from the 53rd District Court Travis County, Texas
Trial Court Case No. D-1-GN-19-003751
The Texas Supreme Court transferred this appeal from the Court of Appeals for the Third District of Texas. See TEX. GOV'T CODE § 73.001 (authorizing transfer of cases between courts of appeals). We are unaware of any conflict between the precedent of the Court of Appeals for the Third District and that of this Court on any relevant issue. See TEX. R. APP. P. 41.3.
MEMORANDUM OPINION
Kim Coogan sued her former employer, the Office of the Attorney General ("OAG"), for age discrimination under the Texas Commission on Human Rights Act ("TCHRA") The OAG filed a plea to the jurisdiction based on the statute of limitations, and the trial court granted the plea. Coogan now appeals, arguing that the trial court erred by granting the plea to the jurisdiction. We affirm.
Background
Coogan filed with the Texas Workforce Commission ("TWC") and Equal Employment Opportunity Commission ("EEOC") a "Charge of Discrimination" ("TWC complaint") against the OAG. The TWC acknowledged receipt of the TWC complaint on June 19, 2017. Nine days later, Coogan filed a second, identical TWC complaint, to which she attached statutorily required information she omitted from the original filing. This information was necessary to identify the OAG as the respondent. See TEX. LAB. CODE § 21.201(c)(3). In both TWC complaints, Coogan alleged that she worked for the OAG for about 19 years as an Assistant Attorney General in the Law Enforcement Defense Division. She also alleged that, from January through May 2017, the OAG, through its employees, discriminated against her on the basis of age "for failing to promote, demotion, hostile work environment, constructive discharge and a pattern and practice of age discrimination." She was 51 years old.
We note that the questionnaire containing this additional information is not included in the record. But the OAG acknowledges that Coogan's second letter was "verified" and contained the requisite information.
Coogan described how the OAG failed to promote her. Around December 2016, Coogan learned that the OAG was hiring a new chief in her division. Coogan emailed the Deputy Chief to apply, even though the OAG did not advertise the vacant position. The Deputy Chief confirmed receipt of her email in person. But Coogan was not given an interview. Instead, the next week, the OAG promoted a much younger attorney who had "significantly less experience" than Coogan to fill the vacancy. The new Chief was an attorney who was almost 20 years younger than Coogan and had only "been out of law school 6 years" at that time. Coogan believed that the "Chief's position require[d] at least 10 years of experience practicing law, which [the younger attorney] clearly did not have."
Coogan also alleged that age was the reason for OAG's decision to demote Coogan. In February 2017, Coogan heard "gossip" that she and two other women would be demoted from their "team leader" positions. Coogan and the two other team leaders were all over the age of 40. The Chief confirmed the rumor. The OAG demoted all three team leaders and replaced them with "younger employees" or by "employees who had no experience in [the team leaders'] fields of expertise."
On May 25, 2017, Coogan's superiors and members of human resources approached Coogan, handed her a pre-written resignation letter, and told her that she could "either resign or be terminated." They provided Coogan with a vague reason for the termination and dismissed her requests for more information. Coogan signed the resignation letter under protest stating that the "termination was the result of age discrimination."
On July 14, 2017, about one month after Coogan filed the TWC complaint, the TWC sent Coogan a letter explaining that her complaint was dismissed because it "had already been filed with the EEOC." The TWC directed her to the EEOC for "further processing" and closed her discrimination case. In May 2019, Coogan sued the OAG for age discrimination under the TCHRA but later non-suited this action. On June 27, 2019, more than two years after receiving Coogan's first complaint, the EEOC issued Coogan a right-to-sue letter. The letter stated that the "EEOC was unable to conclude that the information obtained violates the statutes." The letter informed Coogan that she had to file a lawsuit within 90 days of receiving the notice. The next day, Coogan filed a second lawsuit against the OAG for age discrimination under the TCHRA.
The OAG filed an original answer and a plea to the jurisdiction. In its plea to the jurisdiction, the OAG argued that Coogan's suit was barred by the statute of limitations because Coogan did not file her lawsuit within two years of submitting her charge of discrimination with the TWC. The OAG asserted that the two-year limitations period began when Coogan first filed the TWC complaint, not when she later fully perfected it by filing an amendment. It asserted that the jurisdictional evidence established that Coogan sent a complaint to the TWC on June 19, 2017, and the TWC acknowledged receipt the same day. It therefore asserted that Coogan needed to file a discrimination lawsuit no later than June 19, 2019. Because Coogan did not file the lawsuit until June 28, 2019, Coogan's age discrimination claims were barred.
See TEX. LAB. CODE § 21.256 ("A civil action may not be brought under this subchapter later than the second anniversary of the date the complaint relating to the action is filed.").
See id. § 21.201(b) (requiring a complaint to be submitted in writing and under oath).
In her response to the plea, Coogan argued that she timely filed the discrimination lawsuit in May 2019. She then filed this discrimination lawsuit on June 28, 2019, and nonsuited the first suit on August 6, 2019. She requested the trial court to abate the OAG's plea and "withhold any ruling" until the court presiding over the first suit ruled on her pending motions to reinstate or for new trial.
Coogan argued that because her May 2019 lawsuit was not dismissed with prejudice, it authorized her to bring this lawsuit and use the timely May filing date. We do not reach the issue of whether this lawsuit relates back to the May lawsuit because Coogan does not include a record citation where evidence of the lawsuit appears or where she preserved the issue for appeal. Under Texas Rule of Appellate Procedure 38.1(i), an appellant must, through her brief, provide "a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record." TEX. R. APP. P. 38.1(i). Coogan neither provided arguments in support of this issue nor cited to the record for appellate review. Because Coogan did not brief that issue before this Court, we decline to scour the record in support of her argument. See id.; Gen. Servs. Comm'n v. Little-Tex Insulation Co., Inc., 39 S.W.3d 591, 598 n.1 (Tex. 2001) (waiving unbriefed issue for lack of adequate briefing); Anderson Petro-Equip., Inc. v. State, 317 S.W.3d 812, 819 (Tex. App.—Austin 2010, pet. denied) (same).
After a hearing, the trial court granted the OAG's plea to the jurisdiction and dismissed Coogan's case. Coogan appealed.
Plea to the Jurisdiction
Coogan argues that the trial court erred by granting the OAG's plea to the jurisdiction because her June 28, 2017 TWC complaint was filed within the limitations period. Coogan asserts that she filed the TWC Complaint with the TWC and the EEOC on June 19, 2017, and later amended it on June 28, 2017. The June 19, 2017 charge did not include information necessary to enable the TWC to identify the OAG, such as its telephone number and address, and it was therefore not a proper, verified charge Texas law requires. See TEX. LAB. CODE § 21.201(c)(3). The June 28, 2017 charge, however, included all the statutory information, and therefore, her lawsuit was timely filed on June 28, 2019.
In her reply brief, Coogan also argues that the relation-back doctrine does not apply because the TWC complaint she filed on June 19, 2017 "did not ask for any investigation." She relies on Yeh v. Chesloff, 483 S.W.3d 108 (Tex. App.—Houston [1st Dist.] 2015, pet. denied), to argue that an intake questionnaire with an unchecked box requesting an investigation was not a complaint for purposes of the relation-back doctrine. The intake questionnaires in this case are not included in the record. We cannot evaluate an argument that lacks a record. Gen. Servs. Comm'n, 39 S.W.3d at 598 n.1. Because Coogan's intake questionnaire is not in the record, Yeh does not apply. Moreover, Coogan's argument does not comport with the way the Labor Code treats the relation-back doctrine. See TEX. LAB. CODE § 21.201(e); see also our discussion of this issue in Section C.
In response, the OAG contends that Coogan's lawsuit is jurisdictionally barred because she filed it more than two years after the statute of limitations. The OAG asserts that the limitations period began running on June 19, 2017, even though she amended and perfected the charge on June 28, 2017. Because any amendments to a charge relate back to the date the TWC received the complaint, the OAG argues that Coogan's lawsuit was barred by the statute of limitations since it was filed on June 28, 2019, over a week after the deadline.
We have jurisdiction to review the trial court's grant of the OAG's plea to the jurisdiction. See TEX. CIV. PRAC. & REM. CODE § 51.014(a)(12).
A. Standard of review
We review de novo a trial court's ruling on a plea to the jurisdiction. See Farmers Tex. Cnty. Mut. Ins. Co. v. Beasley, 598 S.W.3d 237, 240 (Tex. 2020). A plea to the jurisdiction is a dilatory plea that seeks dismissal of a case for lack of subject matter jurisdiction. Harris Cnty. v. Sykes, 136 S.W.3d 635, 638 (Tex. 2004); Hatchett v. W. Travis Cnty. Pub. Util. Agency, 598 S.W.3d 744, 748 (Tex. App.—Austin 2020, pet. denied). A plea to the jurisdiction may be used to challenge whether the plaintiff has met its burden of alleging jurisdictional facts or to challenge the existence of jurisdictional facts. See Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226-27 (Tex. 2004).
"[W]hen a plea to the jurisdiction challenges the existence of jurisdictional facts with supporting evidence, the standard of review mirrors that of a traditional summary judgment: all the evidence is reviewed in the light most favorable to the plaintiff to determine whether a genuine issue of material fact exists." Town of Shady Shores v. Swanson, 590 S.W.3d 544, 550 (Tex. 2019); see Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 555 (Tex. 2000) ("[A] court deciding a plea to the jurisdiction . . . may consider evidence and must do so when necessary to resolve the jurisdictional issues raised."). If the defendant establishes that the trial court lacks jurisdiction, the plaintiff is then required to show that there is a material fact question about jurisdiction. Miranda, 133 S.W.3d at 227-28. If the evidence raises a fact issue on jurisdiction, the plea cannot be granted, and a fact finder must resolve the issue. Id. On the other hand, if the evidence is undisputed or fails to raise a fact issue, the plea must be determined as a matter of law. Id. at 228.
B. The TCHRA
Generally, sovereign immunity deprives a trial court of subject-matter jurisdiction for lawsuits in which the state is a defendant unless the state consents to suit. Miranda, 133 S.W.3d at 224; City of El Paso v. Abbott, 444 S.W.3d 315, 321 (Tex. App.—Austin 2014, pet. denied). Sovereign "immunity from suit defeats a trial court's subject matter jurisdiction and thus is properly asserted in a plea to the jurisdiction." Tex. Dep't of Transp. v. Jones, 8 S.W.3d 636, 639 (Tex. 1999) (per curiam). "If a cause of action is barred by sovereign immunity, the trial court lacks subject matter jurisdiction . . . [and] should dismiss the cause with prejudice." Hampton v. Univ. of Tex.-M.D. Anderson Cancer Ctr., 6 S.W.3d 627, 629 (Tex. App.—Houston [1st Dist.] 1999, no pet.) (citing City of Austin v. L.S. Ranch, Ltd., 970 S.W.2d 750, 752 (Tex. App.—Austin 1998, no pet.)).
The TCHRA establishes an exception to the general rule and provides a limited waiver of sovereign immunity when the state has committed employment discrimination based on race, color, disability, religion, sex, national origin, or age. See TEX. LAB. CODE § 21.002(8)(D) (defining "employer" to include state agency); Id. § 21.051(1) (outlining circumstances under which "employer" commits unlawful employment practice). The TCHRA's limited waiver of sovereign immunity is available if a person claiming employment discrimination exhausts all administrative remedies before suing. Id. §§ 21.201-21.262; Prairie View A & M Univ. v. Chatha, 381 S.W.3d 500, 513-14 (Tex. 2012) (requiring strict compliance of procedural requirements outlined in the TCHRA).
To exhaust administrative remedies under the TCHRA, an employee must satisfy three requirements. First, the employee must file a complaint related to the challenged employment action with the TWC or the EEOC within 180 days of the alleged discriminatory act. TEX. LAB. CODE §§ 21.0015, 21.201-21.202; 40 TEX. ADMIN. CODE § 819.41(a) (providing that complaint may be filed with either the TWC or the EEOC). Once the complaint is filed, the employee must allow the TWC 180 days to dismiss or resolve the complaint before filing a lawsuit. TEX. LAB. CODE §§ 21.008, 21.252. The third statutory prerequisite requires the employee to sue in district court no later than two years after filing the complaint alleging discrimination. Id. § 21.256. Failure to exhaust all three administrative remedies is a jurisdictional defect. Hoffmann-La Roche Inc. v. Zeltwanger, 144 S.W.3d 438, 446 (Tex. 2004) ("[E]xhaustion of administrative remedies is a mandatory prerequisite to filing a civil action alleging violations of the [T]CHRA"); Lueck v. State, 325 S.W.3d 752, 762 (Tex. App.—Austin 2010, pet. denied) (same).
See Free v. Granite Publ'ns, L.L.C., 555 S.W.3d 376, 377 n.2 (Tex. App.—Austin 2018, no pet.) (describing work-sharing agreement between the EEOC and the TWC).
C. Coogan's TCHRA claims are time-barred
The record includes two identical complaints each addressed to both the TWC and the EEOC. The subject line of the letters stated, "Charge of Discrimination," and the body of the letters began, "Please accept this letter as my formal Charge of Discrimination . . . ." Based on these two complaints, the record shows that Coogan satisfied the first administrative remedy under the TCHRA by filing the TWC complaint with the TWC and the EEOC about one month after her termination from the OAG. The record also shows that Coogan satisfied the second administrative remedy under the TCHRA because she allowed the TWC to dismiss or resolve the complaint before she sued the OAG. In fact, the TWC dismissed her complaint and referred her to the EEOC for further processing on July 14, 2017, about one month after she filed the TWC complaints. The narrow issue is whether Coogan's TCHRA claims are time-barred, depriving the trial court of jurisdiction.
Coogan contends the statute of limitations only began to run on June 28, 2017, when she filed her amended TWC complaint containing the "necessary components" with the TWC. By granting the OAG's plea to the jurisdiction, the trial court implicitly found that the limitations period began on June 19, 2017, when Coogan filed the incomplete, unverified charge—more than two years before the suit was filed on June 28, 2019. The Labor Code allows a person to amend a complaint to "cure technical defects or omissions, including a failure to verify the complaint or to clarify and amplify an allegation made in the complaint." TEX. LAB. CODE § 21.201(e). Section 21.201(f) treats the initial date as the filing date for purposes of limitations period:
An amendment to a complaint alleging additional facts that constitute unlawful employment practices relating to or arising from the subject matter of the original complaint relates back to the date the complaint was first received by the commission.Id. §21.201(f). Thus, the amended TWC complaint filed on June 28, 2017 related back and cured the technical defects in the initial TWC complaint filed on June 19, 2017—the same date the TWC received it. See, e.g., Brammer v. Martinaire, Inc., 838 S.W.2d 844, 848 (Tex. App.—Amarillo 1992, no writ) (relating back to the date unverified questionnaire was first filed). Coogan was therefore required to comply with the third administrative remedy under the TCHRA by filing suit in district court no later than June 19, 2017. Coogan did not sue the OAG until June 28, 2019, more than two years later, after the limitations period had expired. Coogan's TCHRA claims are barred by the statute of limitations, even though she sued shortly after receiving the right-to-sue letter from the EEOC. The EEOC's failure to timely send the notice of right to sue neither suspends the mandatory filing requirement nor tolls the running of limitations. See Eckerdt v. Frostex Foods, Inc., 802 S.W.2d 70, 70-71 (Tex. App.—Austin 1990, no writ) (per curiam); Green v. Aluminum Co. of Am., 760 S.W.2d 378, 380 (Tex. App.—Austin 1988, no writ).
Coogan's TCHRA claims are therefore barred by sovereign immunity. The trial court lacked subject matter jurisdiction because Coogan did not file her employment discrimination lawsuit within the two-year limitations period. See Tex. Dep't of Aging & Disability Servs. v. Lagunas, 546 S.W.3d 239, 248 (Tex. App.—El Paso 2017, no pet.) ("The failure to meet that deadline denies jurisdiction to the trial court to hear the case."). Because the administrative remedies of the TCHRA are mandatory and jurisdictional, that the trial court did not err in granting the OAG's plea to the jurisdiction. See Free, 555 S.W.3d at 381. We overrule Coogan's sole issue.
Conclusion
Because Coogan's failure to timely file her age discrimination lawsuit deprived the trial court of subject-matter jurisdiction over her claims, we affirm the trial court's order granting the OAG's plea to the jurisdiction.
Sarah Beth Landau
Justice Panel consists of Justices Keyes, Lloyd, and Landau.