Esters v. Texas Department of Transportation, et al, No. 14-11-00977-CV (Tex. App. Houston [14th Dist.] July 30, 2013.)
This is an employment discrimination case where the central issue turns on the 300 day statutory deadline for filing a claim.
Plaintiff Esters, an African-American male, allegedly endured harassing treatment while employed by the Texas Department of Transportation. Several discrete instances of alleged racial comments and discriminatory actions were listed in the opinion and spanned several years. On March 3, 2006, twenty-eight days before his retirement on March 31, Esters filed a charge of discrimination with the EEOC and TWC. After no action was taken, the EEOC and TWC gave Esters a right to sue letter. Ester’s claims were tried to a jury who returned a verdict in favor of the TxDOT. The jury charge limited the time frame for the jury to consider discriminatory and harassing treatment to 300 days prior to the complaint. Esters appealed asserting the jury charge should have included a two year term, not 300 days.
Texas Labor Code §21.256 states that a civil action cannot be brought later than the second anniversary of the complaint date. However, the court noted this section is a two year limitation from the date the complaint with the EEOC/TWC is filed, not two years’ worth of actions. Further, the continuing violation doctrine is an exception to statutes that require an administrative complaint to be filed within a certain period of time after an unlawful employment practice occurs. The doctrine applies when an unlawful employment practice manifests itself over time, rather than as a series of discrete acts. But the doctrine does not alter the relevant statutory timeframes; it only changes the extent to which actionable behavior must occur within these timeframes. Moreover, to the extent Esters contends the trial court erred by failing to instruct the jury on the continuing violation doctrine, Esters neither requested such a supplemental instruction nor tendered a substantially correct instruction to the trial court. As a result, the trial court did not err in limiting the instruction to 300 days prior to the complaint.
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