Ex-employee failed to file supplemental EEOC charge, so failed to exhaust administrative remedies says Eastland Court of Appeals

 

Christopher Wernert v. City of Dublin, 11-16-00104-CV (Tex. App. – Eastland, August 30, 2018).

This is an employment discrimination case were the Eastland Court of Appeals affirmed the granting of the City’s dispositive motion.

Wernert was a police officer for the City who suffered a serious knee injury on the job when he slipped and fell on an icy street while directing traffic. The injuries were listed as permanent preventing him from continuing patrol duties. However, Wernert was also an investigator and continued to perform those duties for two years. Then, the Chief of Police added patrol duties back into his job requirements. Wernert filed an EEOC/TWC charge.  Wernert was then required to exhaust his leave but was later terminated by a new Chief when he could not return to work, including patrol. Wernert filed suit but alleged acts which occurred after his EEOC charge was filed. The City filed a summary judgment motion, asserting a lack of jurisdiction for failing to exhaust administrative remedies. The trial court granted the motion and Wernert appealed.

Each discrete act of discrimination requires administrative remedy compliance. Discrete discriminatory acts are not actionable if time-barred, and each discrete discriminatory act starts a new clock for filing charges alleging that act.  The court analyzed the current state and federal law and whether Wernert was required to file a supplement charge in order to preserve acts which occurred after the first charge.  The only adverse actions taken prior to the first charge was a change in job duties, while the forced leave and termination occurred after his charge.  Adopting the reasoning from the U.S. Fifth Circuit expressed in Simmons-Myers v. Caesars Entertainment Corp., 515 F. App’x 269, 273 (5th Cir. 2013), the Eastland court held Wernert’s claims are precluded because he did not file an administrative charge for these discrete acts that occurred after his previous EEOC charge. Wernert was required to pursue administrative relief for each of these discrete acts even though they were related to the factual basis of his previous charge. And since the only acts for which he sought damages were the post-charge acts, the trial court properly granted the summary judgment.

If you would like to read this opinion click here. Panel consists of Justice Willson, Justice Bailey and Senior Justice Wright, Retired. Memorandum Opinion by Justice Bailey.  The attorney listed for the City is James T. Jeffrey, Jr.  The attorneys listed for Wernert are Robert J. Wiley and Eric P. Dama.