Opinion
NUMBER 13-17-00156-CV
08-27-2018
THE UNIVERSITY OF TEXAS-PAN AMERICAN, THE UNIVERSITY OF TEXAS SYSTEM, AND THE UNIVERSITY OF TEXAS RIO GRANDE VALLEY, Appellants, v. ALEXANDER EDIONWE, Appellee.
On appeal from the 139th District Court of Hidalgo County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Contreras and Hinojosa
Memorandum Opinion by Chief Justice Valdez
This is an interlocutory appeal brought by appellants University of Texas-Pan American (UTPA), University of Texas System (UT System), and University of Texas Rio Grande Valley (UTRGV)—collectively, "the University"—concerning government immunity. The University filed a plea to the jurisdiction seeking dismissal of appellee Alexander Edionwe's employment discrimination suit. The trial court denied the University's plea. We affirm.
I. BACKGROUND
A. Employment Decision
The facts are undisputed. UTPA and the University of Texas at Brownsville (UTB) merged into UTRGV. Before the merger, appellee Alexander Edionwe taught as a tenured professor for UTPA. After the merger, the University established two phases of hiring for applicants of the newly-established UTRGV—Phase I and Phase II. Phase I was open only to tenured faculty of UTPA and UTB; Phase II was open to everyone else. Edionwe missed the deadline to apply for Phase I but timely applied for Phase II. However, Edionwe was not hired.
B. Administrative Complaint
Alleging racial discrimination, Edionwe filed a complaint with the Texas Workforce Commission (TWC). Edionwe filed an unverified questionnaire with the TWC and then followed up by filing a sworn complaint. See Brammer v. Martinaire, Inc., 838 S.W.2d 844, 846 (Tex. App.—Amarillo 1992, no writ) (noting that "the practice of the [TWC] is to require an aggrieved party to complete a questionnaire concerning his charge and submit it to them" and that "[t]he [TWC] thereafter prepares a formal charge and sends this to the complainant to be reviewed and signed under oath"); see also City of La Joya v. Ortiz, No. 13-06-401-CV, 2007 WL 293019, at *3 n.5 (Tex. App.—Corpus Christi Feb. 1, 2007, no pet.) (mem. op.) (same). Edionwe filed the unsworn questionnaire within 180 days of the Phase II hiring decision; however, he filed the sworn complaint more than 180 days after the hiring decision. The TWC determined that Edionwe had failed to establish a prima facie case of discrimination, dismissed his complaint, and gave notice of his right to sue the University in court.
C. Lawsuit
Edionwe then filed this lawsuit, in which he alleged he was treated less favorably than two other similarly situated job applicants of a different race and national origin. The University responded by filing a plea to the jurisdiction, arguing that Edionwe failed to timely file a sworn complaint with the TWC within 180 days of the Phase II hiring decision and that the timely-filed unsworn questionnaire was not sufficient. The trial court denied the University's plea to the jurisdiction, and this interlocutory appeal followed. See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(8) (West, Westlaw through 2017 1st C.S.).
II. STANDARD OF REVIEW
A plea to the jurisdiction is a dilatory plea that challenges the trial court's subject matter jurisdiction. See Santi v. Univ. of Tex. Health Sci. Ctr. at Houston, 312 S.W.3d 800, 803 (Tex. App.—Houston [1st Dist.] 2009, no pet.) (citing Harris Cty. v. Sykes, 136 S.W.3d 635, 638 (Tex. 2004)). Whether the plaintiff has alleged facts that demonstrate subject-matter jurisdiction is a question of law, which we review de novo. Id. (citing Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004)).
III. APPLICABLE LAW
A complaint of unlawful employment action must be filed with the TWC within 180 days of the alleged unlawful employment action. See TEX. LAB. CODE ANN. § 21.202 (West, Westlaw through 2017 1st C.S). This time limit is jurisdictional, and the failure to do so deprives Texas courts of subject-matter jurisdiction. See Santi, 312 S.W.3d at 804. In Hennigan v. I.P. Petroleum Company, the Texas Supreme Court held that "a verified complaint filed outside of the 180-day time limit relates back to, and satisfies any deficiencies in an unverified questionnaire filed within the 180-day limit, therefore satisfying the 180-day jurisdictional requirement." 858 S.W.2d 371, 373 (Tex. 1993).
IV. DISCUSSION
The University argues that Hennigan's relation-back rule predates the codification of the administrative code provisions and, as such, has been abrogated by statute. See id. (citing section 327.1(g) of the Texas Administrative Code and explaining that the administrative code provisions provide that amendments made to complaints relate back to the date the original complaint was filed). However, both this court and our sister courts continue to recognize the viability of Hennigan's relation-back rule following the codification of the administrative code provisions. See Tex. A & M Univ. v. Starks, 500 S.W.3d 560, 568 (Tex. App.—Waco 2016, no pet.); Tex. Dep't of Pub. Safety v. Alexander, 300 S.W.3d 62, 75-76 (Tex. App.—Austin 2009, pet. denied); Bartosh v. Sam Houston State Univ., 259 S.W.3d 317, 322 (Tex. App.—Texarkana 2008, pet. denied); Stanley Stores, Inc. v. Chavana, 909 S.W.2d 554, 558-59 (Tex. App.—Corpus Christi 1995, writ denied); see also Tex. Health & Human Servs. Comm'n v. De La Cruz, No. 13-17-00292-CV, 2018 WL 2371702, at *3 (Tex. App.—Corpus Christi May 24, 2018, pet. filed) (mem. op.); Ortiz, 2007 WL 293019, at *4. We decline the University's invitation to revisit settled precedent in Hennigan. Accordingly, we conclude that Edionwe's sworn complaint filed outside of the 180-day time limit relates back to, and cures any deficiencies in, the unverified questionnaire filed within the 180-day limit. See Hennigan, 858 S.W.2d at 373.
The pertinent administrative code provision at the time of Hennigan was later codified under section 21.201 of the labor Code. See Tex. Dep't of Pub. Safety v. Alexander, 300 S.W.3d 62, 75 n.11 (Tex. App.—Austin 2009, pet. denied) (stating that "the Hennigan court cited to a section of the Texas Administrative Code in force at the time, which was substantively the same as the current version of section 21.201 of the Texas Labor Code").
Next, the University argues that an unsworn questionnaire is not a "complaint" and therefore cannot satisfy the 180-day jurisdictional deadline. However, in De La Cruz, we recently rejected this argument, stating:
[This] Court has previously rejected [the] argument that an unverified intake questionnaire does not constitute a formal complaint under the [Texas Labor Code]. See Wal-Mart Stores, Inc. v. Canchola, 64 S.W.3d 524, 535 (Tex. App.—Corpus Christi 2001), rev'd on other grounds, 121 S.W.3d 735 (Tex. 2003). Relying on section 21.201(e)'s provision that a complaint may be amended to cure technical defects, we concluded in Canchola that the filing of the unverified questionnaire "suffice[d] to institute administrative review under the [labor code]." Id. We have since held that "noncompliance with section 21.201(b)'s verification requirement is non-jurisdictional." Pharr-San Juan-Alamo Indep. Sch. Dist. v. Lozano, No. 13-16-00408-CV, 2018 WL 655527, at *4 (Tex. App.—Corpus Christi Jan. 31, 2018, pet. filed) (mem. op.) (citing Reid v. SSB Holdings, Inc., 506 S.W.3d 140, 143-150 (Tex. App.—Texarkana 2016, pet. denied)). Therefore, even if we were to only consider De La Cruz's timely filed but unsworn Complaint Form, the lack of a verification would not operate as a jurisdictional bar to suit. See id.De La Cruz, 2018 WL 2371702, at *3. We reject the University's argument by following our precedent in De La Cruz.
Finally, the University argues Hennigan's relation-back rule cannot save the part of Edionwe's discrimination claim relating to Phase I hiring. The University contends any claim relating to Phase I hiring is barred because Edionwe filed his unverified questionnaire more than 180 days after he missed the deadline to apply for that phase. The University asserts the trial court therefore lacks subject-matter jurisdiction to adjudicate whether Phase I hiring was discriminatory "to the extent [Edionwe] relies on that event." Edionwe responds that the University creates an issue where one does not exist because he never applied for Phase I. Edionwe explains that any reference to Phase I in his petition was not intended to stake a claim on it but instead to merely provide background information leading up to the University's Phase II hiring decision—i.e., the discriminatory event saved by Hennigan's relation-back rule. In Morgan, the United States Supreme Court observed that an employee is not barred from using an employer's "prior acts as background evidence in support of a timely claim." Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002). Because Edionwe concedes his discrimination claim relates only to Phase II, we agree this is a non-issue. We overrule the University's issues.
V. CONCLUSION
We affirm the trial court's order denying the University's plea to the jurisdiction
/s/ Rogelio Valdez
ROGELIO VALDEZ
Chief Justice Delivered and filed the 27th day of August, 2018.