Corpus Christi Court of Appeals Dismisses Claims Due to Deficient Charge of Discrimination
The process of filing a charge of discrimination with the EEOC or TWC is supposed to be simple. However, deficiencies in the charge can be jurisdictionally fatal to a plaintiff's claim. The biggest sources of problems are (1) plaintiffs who file charges on their own, relying on the EEOC or TWC personnel for assistance; and (2) attorneys who fail to carefully review the charges filed by their clients to be absolutely sure that the charge conforms to their client's claim.
The decision of the Corpus Christi Court of Appeals in Brownsville Independent School District v. Alex, No. 13-12-00489-CV (Tex. App. -- Corpus Christi 2013, no pet.) (now reported at 408 S.W.3d 670), is a prime example of how a deficient charge can derail a case. Alex involved a race discrimination claim. The full text of the charge of discrimination was as follows:
My name is Michael Alex and I hold a Master of Science Degree in Health and Physical Education from Northeast Louisiana University in Monroe, Louisiana, a Bachelor of Science Degree in Physical Education from the University of Texas-Pan America[n], and an Associate['s] Degree in Physical Education from San Jacinto College in Pasadena, Texas. I have also obtained 15 graduate hours in Educational Administration from the University of Texas at Brownsville. Furthermore, I am a certified teacher in Texas.
I was previously employed as a teacher/coach with Porter High School from 1987 to 1995. I was dismissed from my position due to a false accusation. I was subsequently, tried in a court of law based on the false accusations and was acquitted and found not guilty on October 20, 1995.
I have reapplied for employment with the BISD on numerous occasions even interviewed for a Health/PE position in early October 2009. The response from BISD is no response. BISD continues to hire other applicants for positions that I have applied for of other races other than African American that I am a class member of. I believe that I am being discriminated against under Chapter 21, et.seq. since BISD refused to hire me, although, I was the best qualified candidate that applied for the position at the Early College High School with BISD and was not selected in early October 2009. Incredibly, BISD has on file an updated application in its Human Resources Department dated January 27, 2010 and [I] have received no contact as to any positions for interview, although BISD is the largest employer South of San Antonio, Texas. Again, I believe BISD is discriminating based upon my race.
I am asking that the Texas Workforce Commission; Division of Civil Rights investigate this injustice based upon BISD refusing to hire based on the color of my skin.
After receiving his right to sue letter, the plaintiff filed suit against BISD, claiming: "(1) he was not hired as a health teacher in October 2009 on account of his race; (2) he was not hired for 'other subsequent positions' for which he is qualified, including a position that was filled on or about October 18, 2011; and (3) BISD employs a disproportionately low number of African American persons." BISD filed a plea to the jurisdiction with respect to (2) and (3), claiming that they had not been raised in the charge of discrimination. The trial court denied the plea, and BISD took an interlocutory appeal.
The Corpus Christi Court of Appeals reversed, holding that the charge of discrimination was deficient. The court noted that charges must be interpreted expansively to cover claims that could reasonably be expected to grow out of the factual allegations:
A primary purpose of filing the complaint with the Commission is to trigger an agency investigation so that voluntary compliance with the law is achieved through a conciliatory process. The crucial element of a complaint filed with the Commission is the factual statement which must adequately put an employer on notice of the existence and nature of the discrimination charges being made. The scope of a subsequent lawsuit is limited to the scope of the investigation that can reasonably be expected to grow out of the discrimination charge in the complaint. We construe the complaint liberally to reach its substance, but we will not construe it to include facts that were initially omitted. (Citations omitted).
Applying that principle, the court found that the charge did not raise a claim based on "other subsequent positions":
It is undisputed that BISD is a large employer with at least 8,000 employees. It is also undisputed that when there is a job opening for a teaching position, applications are prescreened to confirm the applicant's basic qualifications and then it is up to individual principals at numerous schools within the district to offer a particular applicant an interview for a given position. As in Geldon, someone reading Alex's complaint could not reasonably be expected to discern and investigate specific positions for which Alex applied and was not hired after October 2009. The language of Alex's complaint leaves open the possibility he did not apply for any specific positions after October 2009. The complaint cannot reasonably be expected to have triggered investigation of non-hire for a position in October 2011, more than eighteen months after Alex filed his complaint.
Likewise, the court found that the charge did not raise a disparate impact claim:
To the extent Alex seeks to raise a disparate-impact claim in his live pleading, as in Pacheco, such a claim is barred because in his pre-suit complaint filed with the Commission Alex failed to allege any disparate-impact claim, failed to mention any neutral employment policy, and complained only of his personal discriminatory treatment. As a result, the trial court lacks subject-matter jurisdiction over the disparate-impact claim alleged in Alex's live pleading.
As a result, the plaintiff lost two of his three claims.
The sad thing about cases like this is that the problem was curable. The plaintiff could have amended his charge of discrimination at any time prior to the issuance of a right to sue letter. Even after that time, he could have filed a second charge of discrimination raising any claim that was not covered by the first charge. While the plaintiff would be required to comply with the 180-day filing rule under Texas law or the 300-day filing rule under federal law, in this case all of his problems could have been fixed if he or his counsel had acted diligently.
The lesson from this case is that plaintiffs and their counsel need to take the charge of discrimination process seriously. While the courts will not hold the plaintiff to the standards of a legal pleading, it is essential to make sure that all factual allegations are fairly presented to the EEOC or TWC.
David C. Holmes is a Houston employment lawyer with The Law Offices of David C. Holmes