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Dallas Court of Appeals: The Texas Workforce Commission's Improper Processing of a Charge of Discrimination Is Not a Jurisdictional Bar to Suit

The processing of a Charge of Discrimination by the EEOC or the Texas Workforce Commission can present a number of vexing issues in employment discrimination cases.  The Dallas Court of Appeals addressed one of these issues in Dallas County Southwestern Institute of Forensic Sciences and Medical Examiner Department v. Ray (published opinion dated May 16, 2013).

The issue in Ray arose from the plaintiff's failure to contact the TWC until the eve of the deadline for filing a Charge of Discrimination.  The court summarized the facts as follows:

On April 27, 2010, Ray was terminated from her position in the Dallas County Medical Examiner’s Office.  Ray was fifty-four years old when she was terminated, and she was replaced by a younger employee.  On October 18, 2010, 174 days after her termination, she filed a charge of discrimination with the Texas Workforce Commission, Civil Rights Division by filling out an intake questionnaire.  Ray asserted in the questionnaire that her termination involved age discrimination.  On November 29, 2010, Ray received a letter from the commission acknowledging acceptance of Ray’s complaint for investigation. The letter included a "Charge of Discrimination" form containing the information of Ray’s complaint, and the letter instructed Ray to sign the form and have it notarized and return it to the commission by December 13, 2010.  Ray signed the form and had it notarized on December 7, 2010, and she mailed it to the commission on December 9, 2010.  On December 16, 2010, the commission for the first time sent the County a copy of Ray’s complaint.  After investigating, the commission notified Ray that the evidence did not reflect that age discrimination was a factor in the County’s decision to terminate her.  The commission formally dismissed her complaint on April 29, 2011 and gave her notice of her right to file a civil action.

After the plaintiff filed suit, the employer filed a plea to the jurisdiction, arguing that the plaintiff had not complied with the statutory prerequisites for filing suit.  When the trial court denied the plea, the employer exercised its right as a governmental employer to take an interlocutory appeal.

As a threshold matter, it should be noted that this entire issue could have been avoided if the plaintiff had simply filed a Charge of Discrimination on October 18, rather than submitting an intake questionnaire.  Likewise, the entire issue could have been avoided if the TWC had recognized the issue and told the plaintiff that she needed to file a Charge of Discrimination promptly.  Instead, the only document filed with the TWC within the 180 day period was the intake questionnaire.  An intake questionnaire is not sworn, and therefore it does not meet the statutory requirements for a Charge of Discrimination.

Fortunately for the plaintiff, the court treated the intake questionnaire as if it was a charge of discrimination, albeit unsworn  If this case had involved the EEOC and thus arisen under federal law, it is not so clear whether the result would be the same.  In Federal Express Corp. v. Holowecki, 552 U.S. 389 (2008), the Supreme Court considered whether an intake questionnaire or other preliminary document could constitute a "charge" for purposes of the 300-day filing period provided by federal law.  Adopting the EEOC’s position, the Supreme Court answered that question in the affirmative, "if the document reasonably can be construed to request agency action and appropriate relief on the employee’s behalf." Id. at 404.  Some courts have refused to find that particular intake questionnaires meet that standard.

In any event, the Dallas Court of Appeals treated the intake questionnaire as a Charge of Discrimination and concluded that any defects (such as the fact that the form was unsworn) could be cured by amendment:

In this case, it is undisputed that Ray initially filed her complaint, the intake questionnaire, on October 18, 2010, 174 days following her termination. The complaint was not perfected, however, because it was not sworn. Ray filed her perfected, amended complaint on December 9, 2010, and the amended complaint related back to the October 18 day of filing pursuant to section 21.201(f).

Instead, the employer focused on a different procedural issue.  Section 21.201(g) of the Texas Labor Code states: "If a perfected complaint is not received by the commission within 180 days of the alleged unlawful employment practice, the commission shall notify the respondent that a complaint has been filed and that the process of perfecting the complaint is in progress."  The TWC did not provide that notice to the employer.  Accordingly, the employer argued that the statutory prerequisites had not been satisfied.

The court rejected that argument, noting that the failure of the TWC to fulfill its duties could not be a bar to the plaintiff's suit:

The County’s argument that the commission’s failure to send the notice required by section 21.201(g) constitutes a jurisdictional bar to a later suit by a governmental employee would give the commission the ability to create a jurisdictional bar in all suits against governmental employers by employees who filed timely but technically deficient complaints under the Act too close to the 180-day deadline to correct the complaints within the 180 days.  This interpretation would work against the clear intent of the statute that employees, including governmental employees, who initially filed technically deficient complaints within the 180 days be entitled to amend the complaints outside the 180 days and still take advantage of all the remedies of the Act, including the right to bring a civil action for enforcement of the Act.  Nothing in the Act supports giving the commission this power to bar subsequent suits against governmental employers.  Nor does the County provide any argument explaining why the dismissal of a suit because of an error by the commission and not the employee should constitute a jurisdictional bar to the employee’s suit.

We conclude that section 21.201(g)’s requirement that the commission "notify the respondent that a complaint has been filed and that the process of perfecting the complaint is in progress" is not one of the "[s]tatutory prerequisites to a suit" whose compliance is a jurisdictional requirement.

Although the plaintiff survived the jurisdictional challenge, this decision provides a warning to employees who wish to pursue discrimination claims: It is important to act promptly, and it can be valuable to seek legal advice even at the early stage of filing a Charge of Discrimination.  As discussed above, if this particular plaintiff had gone to the EEOC instead of the TWC, the result might have been different.  Although the personnel at the TWC and EEOC are well intentioned and are generally quite competent, in the end it is the plaintiff who will pay the price for any procedural errors.

David C. Holmes is a Houston employment lawyer with The Law Offices of David C. Holmes