Corpus Christi Court of Appeals held plaintiff can circumvent TWC for retaliation claim so long as underlying claim is based on TWC complaint
Special contributing author Laura Mueller, City Attorney for Dripping Springs
Donna Indep Sch. Dist.. v. Cynthia Castilla, 13-19-00395-CV (Tex. App.—Corpus Christi, August 13, 2020) (mem.op.).
In this employment discrimination and retaliation case, the plaintiff brought some claims that occurred outside of the required 180-day lookback under the Texas Labor Code but was able to bring a retaliation claim that was within the 180-day window even though the claim was not heard by the Texas Workforce Commission.
The plaintiff was a police officer with the Donna Independent School District who made multiple complaints against the School District and was later transferred and then terminated by the District. While she was still employed by the District, but after the transfer, the plaintiff filed charges of discrimination for sexual harassment, age discrimination, and retaliation at the Texas Workforce Commission (TWC). During TWC’s review, the District terminated the plaintiff. The TWC issued a right to sue letter stating that TWC did not have jurisdiction because the plaintiff was outside the 180-day requirement when she filed at the TWC. The plaintiff brought suit in the trial court including the TWC claims and an additional claim of retaliation related to her termination. She did not amend her TWC complaint to include retaliation. the District filed a plea to the jurisdiction, which the trial court denied. the District appealed. The District’s sole argument on appeal was that the trial court does not have jurisdiction because the plaintiff had not exhausted her administrative remedies. The Court dismissed all of the claims except the retaliation claims.
To present a claim under the Texas Labor Code for discrimination the claim has to be brought before the Texas Workforce Commission within 180 days of the last related discriminatory activity. Tex. Lab. Code §§ 21.201(a), (g); 21.202. All statutory requirements, including the 180 day period, are jurisdictional. Tex. Gov’t Code § 311.034. The Court of Appeals held that the discrimination claims were not valid because the incidents that were the subject of the claim were alleged to have occurred more than 180 days before the claim. However, the retaliatory transfer claim occurred within the 180-day window. The Court also held that the retaliation claim was based on retaliatory conduct because of her other claims which were already being reviewed by the TWC. The Court quoted “under both state and federal law, courts have held that a claim of retaliation for filing a charge of discrimination is sufficiently related to the charge of discrimination to exhaust remedies for the retaliation claim, even though the charge contains no reference to the alleged retaliation.” Tex. Dep’t of Transp. v. Esters, 343 S.W.3d 226, 230–31 (Tex. App.—Houston [14th Dist.] 2011, no pet.). As a result, the plea was properly denied.
If you would like to read this opinion click here. Panel consists of Chief Justice Contreras and Justices Longoria and Hinojosa. Opinion by Chief Justice Contreras.
