Opinion
NUMBER 13-16-00408-CV
01-31-2018
PHARR-SAN JUAN-ALAMO INDEPENDENT SCHOOL DISTRICT Appellant, v. MELBA LOZANO, Appellee.
On appeal from the 92nd District Court of Hidalgo County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Benavides and Hinojosa
Memorandum Opinion by Chief Justice Valdez
Appellee Melba Lozano sued her employer, appellant Pharr-San Juan-Alamo Independent School District (School District), alleging employment discrimination on the basis of disability. See TEX. LAB. CODE ANN. § 21.051(1) (West, Westlaw through 2017 1st C.S.). The School District filed a plea to the jurisdiction. The trial court denied the School District's plea to the jurisdiction. By four issues, the School District contends that the trial court should have granted its plea to the jurisdiction. We affirm in part and reverse and render in part.
I. BACKGROUND
A. Lozano Promoted to High School Principal and then Diagnosed with Cancer
In 2012, Lozano was promoted to serve as the principal for a high school in the School District. After her promotion, Lozano was diagnosed with cancer. She missed part of the 2013 spring semester undergoing cancer treatment but returned to work thereafter.
B. Senior Prank Debacle
In the spring of 2014, Lozano allowed a senior student to orchestrate a prank at the high school where she served as principal. The prank went awry, and the School District's superintendent became involved. Lozano initially denied having any knowledge of the prank, but text messages between her and the senior student proved otherwise.
C. Lozano Demoted to Assistant Principal at a Middle School for the 2014-2015 School Year
On July 16, 2014, following the senior-prank debacle, the School District notified Lozano that she would be reassigned to serve as the assistant principal at a middle school for the upcoming 2014-2015 school year. According to Lozano, her demotion came after she told the assistant superintendent that the cells in her body were "abnormal"—implying cancer. Lozano accepted the reassignment and began work as the assistant principal for the middle school.
D. Lozano Files First Charge of Discrimination (Demotion)
On January 26, 2015, more than six months after her demotion to assistant principal, Lozano filed her first charge of discrimination with the Texas Workforce Commission (TWC). Specifically, Lozano alleged the following in the charge:
I have been subject to [d]emotion due to my [h]istory of [d]isability. On [July 16, 2014], I was demoted from a [h]igh [s]chool [p]rincipal to a [m]iddle [s]chool [a]ssistant [p]rincipal by [the superintendent]. I believe I was discriminated against due to my history of disability and the routine monitoring required for it.Lozano continued to work for the School District after filing her first charge.
E. School District Offers Employment Contract for the 2015-2016 School Year
In April 2015, the School District offered Lozano employment for the upcoming 2015-2016 school year. However, Lozano was not offered a principal contract. Lozano rejected the School District's offer and resigned shortly thereafter.
F. Lozano Files Second Charge of Discrimination (Constructive Discharge)
Less than one month after resigning, Lozano filed her second charge of discrimination with the TWC. Lozano alleged that the discriminatory action occurred around the time of the School District's offer of employment for the 2015-2016 school year. Lozano's second charge of discrimination alleged as follows:
I was constructively discharged from [the School District] in that I was not offered a principal contract. My discharge was motivated by unlawful disability discrimination. I am a cancer survivor who missed work for routine monitoring and treatment, including continuous visits to M.D. Anderson. I feel [the School District's] refus[al] to extend a principal contract was also retaliation for missing work as a result of my cancer treatment.
G. TWC Dismisses Lozano's Charges and Lozano Files Suit
The TWC dismissed Lozano's charges of discrimination after being unable to make a finding of discrimination based on the information that was available to the commission at the time of its investigation. Thereafter, Lozano filed the instant suit in the trial court, alleging that the School District discriminated against her on the basis of a disability.
H. School District's Plea to the Jurisdiction and Lozano's Response Thereto
The School District responded to Lozano's suit by filing a plea to the jurisdiction. The School District raised two arguments as to why the trial court lacked jurisdiction to hear Lozano's suit: (1) Lozano's first and second charges of discrimination were not timely filed with the TWC within six months of the alleged discriminatory action, thus depriving the trial court of subject-matter jurisdiction over both charges; and alternatively (2) Lozano's pleadings failed to state a prima facie case for employment discrimination. Lozano responded to the School District's plea to the jurisdiction.
In response to the School District's plea, Lozano provided affidavit testimony to support her claim of employment discrimination. Lozano also attached several exhibits, including a copy of the second charge she filed with the TWC.
I. Trial Court Denies School District's Plea to the Jurisdiction
The trial court denied the School District's plea to the jurisdiction. The School District did not request the trial court to enter findings of fact or conclusions of law. Consequently, we must assume that the trial court implicitly found: (1) that Lozano timely filed her first and second charge of discrimination with the TWC, thereby supplying it subject-matter jurisdiction; and (2) that Lozano's pleadings and evidence made out a prima facie case for employment discrimination. In re I.I.G.T., 412 S.W.3d 803, 806-09 (Tex. App.—Dallas 2013, no pet.) (observing that when no findings of fact or conclusions of law are requested or filed, an appellate court implies all necessary findings in support of the trial court's ruling on movant's plea to the jurisdiction). This interlocutory appeal by the School District followed.
II. DISCUSSION
A. Standard of Review
A plea to the jurisdiction is a dilatory plea that challenges the trial court's subject-matter jurisdiction. See Santi v. Univ. of Tex. Health Sci. Ctr. at Houston, 312 S.W.3d 800, 803 (Tex. App.—Houston [1st Dist.] 2009, no pet.) (citing Harris County v. Sykes, 136 S.W.3d 635, 638 (Tex. 2004)). Whether the plaintiff has alleged facts that demonstrate subject-matter jurisdiction is a question of law, which we review de novo. Id. (citing Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004)). Although we are not to reach the merits of the plaintiff's case, when the plea to the jurisdiction challenges the existence of jurisdictional facts, we consider the relevant evidence submitted by the parties that is necessary to resolve the jurisdictional issue. See id. This procedure generally mirrors that of a summary judgment under rule of civil procedure 166a(c). Id. at 804 (citing TEX. R. CIV. P. 166a(c)).
The plaintiff has the initial burden to plead facts affirmatively showing the trial court has subject-matter jurisdiction. Id. (citing Miranda, 133 S.W.3d at 226). The governmental unit then has the burden to assert that the trial court lacks subject-matter jurisdiction and must support that contention with evidence. Id. If the governmental unit does so, the plaintiff must then raise a material fact issue regarding jurisdiction to overcome the government's plea to the jurisdiction. Id. When reviewing a plea to the jurisdiction in which the pleading requirement has been met and evidence has been submitted to support the plea, we must take as true all evidence favorable to the nonmovant and indulge every reasonable inference and resolve any doubt in the nonmovant's favor. Miranda, 133 S.W.3d at 228. If the evidence creates a fact issue concerning jurisdiction, the plea to the jurisdiction must be denied. Id.
B. Applicable Law
The Texas Labor Code prohibits employment discrimination on the basis of a disability. TEX. LAB. CODE ANN. § 21.051(1). An employer commits an unlawful employment action if the employer "fails or refuses to hire an individual, discharges an individual, or discriminates in any other manner against an individual in connection with compensation or the terms, conditions, or privileges of employment" because of the employee's disability. Id.
Section 21.202(a) of the Texas Labor Code provides that a charge of employment discrimination must be filed with the TWC within six months of the alleged unlawful employment action. TEX. LAB. CODE ANN. § 21.202(a) (West, Westlaw through 2017 1st C.S.). This time limit is mandatory and jurisdictional. Santi, 312 S.W.3d at 804. "Failure to timely file an administrative complaint deprives Texas trial courts of subject-matter jurisdiction." Davis v. Autonation USA Corp., 226 S.W.3d 487, 491 (Tex. App.—Houston [1st Dist.] 2006, no pet.).
In some cases, the "continuing violation doctrine" might apply to extend this mandatory six-month limitation period. Santi, 312 S.W.3d at 804. The doctrine applies when a discriminatory employment practice manifests itself over time, rather than as a series of discrete acts. Id. at 804-05. A plaintiff alleging a continuing violation must show an organized scheme leading to and including a present violation, so that it is the cumulative effect of the discriminatory practice, rather than any discrete occurrence, that gives rise to the cause of action. Id. In other words, it is the cumulative effect of a thousand discriminatory cuts rather than a fatal discriminatory blow that produces the unlawful employment action. See id. For example, a claim of hostile work environment would be the type of indiscrete employment practice that constitutes a continuing violation. Id. at 805. When the discriminatory action constitutes a continuous violation, the six-month limitation period runs from the date of the last discriminatory act alleged. See id. at 806.
However, a one-time event such as termination, refusal to hire or promote, or a demotion is a discrete adverse action that cannot be saved by the continuing violation doctrine. See id. at 805 (citing Nat'l Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 114 (2002)); see also Huckabay v. Moore, 142 F.3d 233, 240 (5th Cir. 1998) (observing that a "demotion is the sort of discrete and salient event that should put an employee on notice that a cause of action has accrued. It does not constitute a part of the same pattern of behavior that amounts to a continuous violation . . . ."); Olivarez v. Univ. of Tex. at Austin, No. 03-05-00781-CV, 2009 WL 1423929, at *2 (Tex. App.—Austin May 21, 2009, no pet.) (mem. op.).
C. Analysis
1. Timeliness of First and Second Charges
By its first issue, the School District contends that Lozano's first charge of discrimination was not filed within six months of her demotion, as required by labor code section 21.202(a). By its second issue, the School District contends that Lozano's second charge was not timely filed. We address each issue separately below.
a. First Charge: July 2014 Demotion from Principal to Assistant Principal for the 2014-2015 School Year
The record undisputedly shows that Lozano filed her first charge of discrimination on January 26, 2015, which was six months, ten days after her July 16, 2014 demotion. Accordingly, the trial court lacks subject-matter jurisdiction with regard to Lozano's claim of disparate treatment stemming from her July 2014 demotion. Lozano counters that the continuing violation doctrine applies to save her first charge from a finding of untimeliness. However, as previously mentioned, a demotion is a discrete adverse employment action that cannot be saved by the continuing violation doctrine. See Santi, 312 S.W.3d at 806; Huckabay, 142 F.3d at 240; see also Donna Indep. Sch. Dist. v. Rodriguez, No. 13-09-00185-CV, 2009 WL 2962376, at *3 (Tex. App.—Corpus Christi Sept. 17, 2009, no pet.) (mem. op.) (reversing the trial court's judgment denying the school district's plea to the jurisdiction with respect to a discrete allegation, which was time-barred and which was not otherwise saved by the continuing violation doctrine). We sustain the School District's first issue.
Lozano nevertheless maintains that the continuing violation doctrine should apply because she checked the "continuing action" box on the charge form and alleged that discrimination lasted until November 2014. However, Lozano's first charge is completely devoid of any factual allegation that discriminatory treatment lasted beyond the demotion. Furthermore, neither Lozano's pleadings nor her response to the School District's jurisdictional plea elucidates the factual premise for her reliance on the continuing violation doctrine as it pertains to her first charge. Huckabay v. Moore, 142 F.3d 233, 240 (5th Cir. 1998) (observing that a conclusory statement that discrimination is "ongoing" is insufficient to raise the continuing violation doctrine unless supported by specific factual allegations).
The School District's third issue complains about the sufficiency of Lozano's pleading and evidence to support her claim of disparate treatment stemming from her July 2014 demotion. The School District's third issue is moot because it complains about the evidentiary sufficiency to support a claim that we have already concluded is time-barred. Accordingly, we dismiss the School District's third issue as being moot.
b. Second Charge: Constructive Discharge Concerning School District's Refusal to Offer Principal Contract for the 2015-2016 School Year
Lozano's second charge concerning constructive discharge relates to the School's District's refusal to offer her a principal contract for the 2015-2016 school year, which prompted her to resign in June 2015. The six-month limitations clock on Lozano's constructive discharge claim began to run on the day she gave notice of her resignation. See Green v. Brennan, 136 S. Ct. 1769, 1782 (2016) (holding that limitations clock for claim alleging constructive discharge accrues on the day employee tenders notice of resignation to employer). The record undisputedly shows that Lozano filed her second charge alleging constructive discharge within one month of tendering notice of her resignation to the School District. Therefore, Lozano's second charge was timely filed. See id.
In a related sub-issue to its second issue, the School District argues that Lozano's second charge was not made under oath as required by section 21.201(b) of the Texas Labor Code, and therefore, the trial court lacks jurisdiction over the constructive discharge claim. Section 21.201(b) does state that charges filed with the TWC "must be . . . made under oath." See TEX. LAB. CODE ANN. § 21.201(b) (West, Westlaw through 2017 1st C.S.). However, we agree with the Texarkana court's statutory interpretation analysis in Reid that noncompliance with section 21.201(b)'s verification requirement is non-jurisdictional. See Reid v. SSB Holdings, Inc., 506 S.W.3d 140, 143-150 (Tex. App.—Texarkana 2016, pet. filed) (holding that employee's failure to verify her discrimination complaint filed with the TWC did not deprive the trial court of subject-matter jurisdiction); see also Wal-Mart Stores, Inc. v. Canchola, 64 S.W.3d 524, 535 (Tex. App.—Corpus Christi 2001), rev'd on other grounds, 121 S.W.3d 735 (Tex. 2003). Accordingly, we adopt the Reid court's holding that there is no jurisdictional bar on judicial review of an unverified charge filed with the TWC. We overrule the School District's second issue.
The School District points out that Reid involved a charge against a private employer. The School District argues that Reid's holding regarding the verification requirement being non-jurisdictional is limited charges made against private employers, not public employers such as the School District. However, the Reid court did not expressly limit its holding to private employers, and we fail to see why an employer's status as a public or private entity should dictate whether a verification requirement applicable to an employee is jurisdictional.
2. Sufficiency of Pleading and Evidence to Support Constructive Discharge Claim
By its fourth issue, the School District contends that Lozano's pleadings failed to state a prima facie case for constructive discharge. The School District further argues that Lozano failed to offer sufficient evidence to support her claim of constructive discharge in response to its jurisdictional plea. We disagree.
A constructive discharge occurs when an employer makes conditions so intolerable that an employee reasonably feels compelled to resign. Hammond v. Katy Indep. Sch. Dist., 821 S.W.2d 174, 177 (Tex. App.—Houston [14th Dist.] 1991, no writ). When a plea to the jurisdiction challenges the pleadings, we must determine if the pleader has alleged facts that affirmatively demonstrate the trial court's subject-matter jurisdiction to hear the cause, construing the pleadings liberally in favor of the pleader and looking to the pleader's intent. See Miranda, 133 S.W.3d at 226.
Here, Lozano alleged the following in her pleading to support her constructive discharge claim:
[She] had an exemplary record until being diagnosed with cancer. After [she] was diagnosed, [the School District] reassigned [her] and harassed her as a pretext for intentional discrimination. Among other things, the stated reason is false because [her] performance was excellent and exceeded expectations. [She] was qualified for her position as evidenced by her evaluations. [Her] discharge was under circumstances from which one can infer, if such actions remain unexplained, that it is more likely than not that such actions were based on discriminatory criterion . . . .Furthermore, Lozano attached the following evidence in opposition to the School District's plea to the jurisdiction: (1) a copy of a written reprimand issued to her by the School District the same month that the School District refused to offer her a principle contract for the 2015-2016 school year; (2) her letter of resignation noting discrimination as the reason for resigning; (3) her second charge of discrimination alleging constructive discharge; and (4) her sworn affidavit testimony, wherein she averred that:
[a]fter my [cancer] diagnosis, it appeared that all of a sudden, I was being singled out for discipline for what had previously been minor issues. I was reassigned for no reason, I was demoted and was shuffled from campus to campus. Shortly before I resigned I was reprimanded by my principal after he was specifically instructed to do so by Central Office. I was also reprimanded a few days before I resigned. All of these actions, the constant movement, the degrading demotions, [and] the unwarranted reprimands made my life so intolerable, I had to resign. I was never given a chance to address my reprimands or try to improve my performance.Liberally construing Lozano's pleadings, taking as true all record evidence that is favorable to her, and resolving any doubts in her favor, we conclude that Lozano established her right to move forward with her constructive discharge claim. See id.
The School District nevertheless argues that Lozano failed to show that her alleged constructive discharge was based on a disability, as opposed to the senior prank or poor work performance, and failed to present evidence that similarly situated employees were treated more favorably than her. However, these arguments go to the merits of the claim and are more properly addressed on summary judgment than on a plea to the jurisdiction. See Bartosh v. Sam Houston State Univ., 259 S.W.3d 317, 323 (Tex. App.—Texarkana 2008, pet. denied).
3. Scope of Actionable Conduct to Support Constructive Discharge
Finally, in what we construe as a sub-issue to its fourth issue, the School District argues that only discriminatory acts occurring within six months of the date Lozano filed her second charge with the TWC are actionable to support her claim for constructive discharge. The School District points out that Lozano filed her second charge in June 2015 and that Lozano's July 2014 demotion falls outside that six-month window. Consequently, the School District argues that Lozano cannot rely on the otherwise time-barred discrete act of her 2014 demotion to support her constructive discharge claim. We disagree.
In Morgan, the United States Supreme Court held that an employee alleging a hostile work environment theory for discrimination could pull in a discrete act that would otherwise be time-barred if asserted as a stand-alone theory, as long as the act was part of the same hostile work environment and at least one other subsequent act was not time-barred. Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 119 (2002). The reasoning behind the Court's holding was that hostile environment claims are different in kind from discrete acts; by its very nature, a hostile work environment claim is based upon the cumulative effect of individual acts that themselves may not be actionable. Id. at 116. The Court further observed that a timely charge filing requirement in the law was not meant to serve as a specific limitation either on damages or on conduct that may be considered for purposes of one actionable hostile work environment claim. Id. at 119-20. Courts have recognized that a constructive discharge is similar to a hostile work environment in that both can be described as a singular employment practice involving a series of repeated acts that are so severe and pervasive that they permeate the workplace. See Jackson v. Univ. of Tex. M.D. Anderson Cancer Ctr., 54 Fed. Appx. 404 n.4 (5th Cir. 2002); see also Wiltz v. Christus Hosp. St. Mary, 1:09-CV-925, 2011 WL 1576932, at *10 (E.D. Tex. Mar. 10, 2011) (observing that "judicial perspective of constructive discharge is similar to the hostile work environment construct"); Calloway v. Univ. of Louisville, CIV.A. 3:04CV389-S, 2006 WL 1523229, at *4 (W.D. Ky. May 25, 2006). Drawing on Morgan's holding, and recognizing the similarity between a hostile environment and a constructive discharge, we reject the School District's argument that Lozano's July 2014 demotion cannot serve as a basis for her constructive discharge claim simply because she filed her second charge more than six months after being demoted.
We overrule the School District's fourth issue.
III. CONCLUSION
We reverse the trial court's denial of the School District's plea to the jurisdiction as it relates to allegations made by Lozano in her first charge of discrimination, and we render judgment dismissing the suit with regard to those allegations. However, the trial court's denial of the plea to the jurisdiction is affirmed with respect to Lozano's allegation concerning her second charge of discrimination.
Appellant's January 24, 2017 motion for leave to file its reply brief is granted.
/s/ Rogelio Valdez
ROGELIO VALDEZ
Chief Justice Do not publish.
TEX. R. APP. P. 47.2(b). Delivered and filed the 31st day of January, 2018.