LUECK v. STATE

ex. 551, 285 S.W. 1084 (1926), which was overruled by Dubai Petroleum. The USAA court explicitly overruled a footnote in Schroeder stating that the section 21.256 statute of limitations is jurisdictional. In re USAA, 307 S.W.3d at 310.

As we explained in our original opinion in this case, Dubai signaled the end of the long-standing rule in Texas that a plaintiff needed to strictly comply with all statutory prerequisites to suit in order to confer jurisdiction on the courts for all statutory causes of action. See Dubai Petrol. Co. v. Kazi, 12 S.W.3d 71, 76 (Tex. 2000). In so holding, the Dubai court expressed concern that, because a judgment will never be considered final if the court lacked subject-matter jurisdiction, such a conceptualization "opens the way to making judgments vulnerable to delayed attack for a variety of irregularities that perhaps better ought to be sealed in a judgment." Id. Based on this policy concern and without engaging in a detailed examination of the statute at issue, the court overruled Mingus v. Wadley, 115 Tex. 551, 285 S.W. 1084 (1926), to the extent that decision had characterized a plaintiff's failure to establish a statutory prerequisite to suit as a "jurisdictional" defect. Id.; see generally Marnie A. McCormick, Dubai or Not Dubai? That is the Question, 2009 Advanced Texas Administrative Law Seminar, Tab 10, at 1-7.
The statements in Specialty Retailers and Schroeder that the 180-day filing requirement is jurisdictional can be traced back to Mingus and another Texas Supreme Court case, Grounds v. Tolar Independent School District, 707 S.W.2d 889 (Tex. 1986). Specialty Retailers, the most recent supreme court case holding that the TCHRA's 180-day filing requirement is mandatory and jurisdictional, see Specialty Retailers, Inc. v. DeMoranville, 933 S.W.2d 490, 492 (Tex. 1996), relied solely on Schroeder, see 813 S.W.2d at 486, which in turn cited a Third Court of Appeals case. That Third Court case, Green v. Aluminum Co., cited Mingus and Grounds for the now-overruled proposition that, in a suit asserting statutory causes of action, the failure to comply with any statutory prerequisite deprives the court of subject-matter jurisdiction. See 760 S.W.2d 378, 380 (Tex.App.-Austin 1988, no writ).

The court further noted that Schroeder was "a case that dealt primarily with `whether exhaustion of administrative remedies is a prerequisite to bringing a civil action for age discrimination in employment,'" and that the legal character of the section 21.256 deadline was not at issue in Schroeder. In re United Servs. Auto. Ass'n, 307 S.W.3d 299. 308 (Tex. 2010).

The court in USAA went on to describe the analysis that courts should conduct in determining whether a statutory provision poses a jurisdictional requirement, beginning by considering the statutory language and presuming that the legislature did not intend to make any provision jurisdictional, absent clear legislative intent to the contrary. Id. at 307. The statute's purpose must also be, considered, along with the consequences that result from each interpretation. Id. at 308-09. This approach mirrors the analysis that the supreme court has employed in other post-Dubai cases, in keeping with the predominant trend to view most statutory prerequisites as mandatory but not jurisdictional. See, e.g., City of DeSoto v. White, 288 S.W.3d 389, 393 (Tex. 2009); Igal v. Brightstar Info. Tech. Group, Inc., 250 S.W.3d 78, 86 (Tex. 2008); Loutzenhiser, 140 S.W.3d at 354.

Federal Employment-Discrimination Law

The USAA court also paid particular attention to the federal cases interpreting analogous federal statutes, noting that "[t]he TCHRA was enacted `to provide for the execution of the policies of Title VII of the Civil Rights Act of 1964.'" 307 S.W.3d at 308 (quoting Labor Code § 21.001(1)). In holding that section 21.256 does not pose a jurisdictional bar to bringing suit under the TCHRA, the USAA court found it persuasive that every federal circuit to have considered the issue had reached the same conclusion with respect to the time period for filing suit under Title VII. See id. at 309. The court also cited a United States Supreme Court decision, Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 102 S.Ct. 1127, 71 L.Ed.2d 234 (1982), holding that the timely filing of a complaint with the Equal Employment Opportunity Commission is not a jurisdictional prerequisite to filing suit in federal court under Title VII and instead operates as a waivable statute of limitations. See id. at 308-09 (citing Zipes, 455 U.S. at 393-95, 102 S.Ct. 1127).

The administrative filing requirement in Title VII provides that "[a] charge under this section shall be filed within one hundred and eighty days after the alleged unlawful employment practice occurred," or, in cases such as this where the person aggrieved has initially instituted proceedings with a state or local agency, within 300 days after the alleged unlawful employment practice occurred. See 42 U.S.C. § 2000e-5(e)(1).

Seizing on this recent decision and other cases in which the Texas Supreme Court has approved of citing federal case law as authority in interpreting the TCHRA, see, e.g., Hoffmann-La Roche, Inc. v. Zeltwanger, 144 S.W.3d 438, 445-46 (Tex. 2004), Lueck argues that federal law "controls" our interpretation of the Texas statute and compels us to conclude that section 21.202, like its federal counterpart, is non-jurisdictional. His argument is two-fold. First, Lueck argues that because the legislature intended the TCHRA to "provide for the execution of the policies of Title VII," see Labor Code § 21.001(1), and because, under federal law, the timely filing of the administrative complaint is not jurisdictional, see Zipes, 455 U.S. at 393, 102 S.Ct. 1127, the first purpose of the TCHRA would be contravened were we to construe section 21.202 as a jurisdictional requirement. Second, he argues that the Commission, in order to qualify as a deferral agency, must meet "the criteria under 42 U.S.C. Section 2000e-5(c)," see Labor Code § 21.001(2), meaning that it must follow the procedures in the EEOC Compliance Manual — including treating the 180-day filing directive as a non-jurisdictional matter that can be waived or equitably tolled.

The Commission was created "to serve as Texas's `deferral agency,' i.e., one to which the EEOC would defer so the investigation and resolution of employment discrimination complaints could be handled at the state rather than federal level." Texas Parks Wildlife Dept. v. Dealing, 240 S.W.3d 330, 351-52 (Tex.App.-Austin 2007).

Lueck has cited no authority, however, nor have we found any, suggesting that states enacting their own employment-discrimination laws are constrained to adopt procedural requirements that are identical to those in Title VII. In most cases, the Texas courts of appeals that have addressed arguments similar to Lueck's have summarily dismissed them. See, e.g., El Paso County v. Navarrete, 194 S.W.3d 677, 682 n. 2 (Tex.App.-El Paso 2006, pet. denied) ("While we may look to federal law, we find that Texas courts have construed the state law provisions to be mandatory and jurisdictional and as such, we decline to be guided by federal law on this issue."); Guevara v. H.E. Butt Grocery Co., 82 S.W.3d 550, 552-53 (Tex.App.-San Antonio 2002, pet. denied) ("Guevara urges this Court to adopt the doctrine of equitable tolling . . . [citing Zipes]. We decline to do so."). And federal courts entertaining simultaneous Title VII and TCHRA claims have accepted that the filing requirement is not jurisdictional as to federal employment-discrimination claims but may indeed pose a jurisdictional bar to identical claims brought under the TCHRA. See, e.g., Enguita v. Neoplan USA Corp., 390 F.Supp.2d 616, 623 (S.D.Tex. 2005) (dismissing with prejudice TCHRA claims as time-barred but allowing federal claims to proceed, noting that "Title VII's 300 day limitations period, as opposed to the TCHRA['s filing period], is subject to waiver, estoppel, and equitable tolling.").

But, as Lueck repeatedly asserts, there is an apparent tension in our case law as a result of Texas courts' recognizing that our legislature "intended to correlate state law with federal law in employment discrimination cases," Wal-Mart Stores, Inc. v. Canchola, 121 S.W.3d 735, 739 (Tex. 2003), while at the same time construing as jurisdictional a timeliness provision the federal analogue for which is not construed as jurisdictional. The resolution of this issue, as we reasoned in our original opinion, lies in the characterization of the TCHRA provisions as establishing a mandatory administrative procedure that must first be exhausted before suit can be brought.

The TCHRA Requires Pre-Suit Exhaustion

Despite Lueck's arguments to the contrary, it is beyond serious dispute that the TCHRA requires a complainant to first exhaust his administrative remedies before filing a civil action. This was the primary holding in Schroeder, and it has not been overruled. The Texas Supreme Court reaffirmed as recently as June 11, 2010, that "a TCHRA action requires an exhaustion of administrative remedies that begins by filing a complaint with the Texas Workforce Commission civil rights division." Waffle House, Inc. v. Williams, 313 S.W.3d 796, 804 (Tex. 2010). The Waffle House opinion cites Schroeder for the proposition that the TCHRA's complaint-filing, investigation, and alternative-dispute-resolution procedures "are an essential feature of the statutory framework." Id.

The court in USAA was careful to distinguish Schroeder as "a case that dealt primarily with `whether exhaustion of administrative remedies is a prerequisite to bringing a civil action for age discrimination in employment,' [wherein] the legal character of the section 21.256 deadline was not at issue." In re USAA, 307 S.W.3d at 308. The only part of Schroeder that was actually overruled is a footnote suggesting that the 21.256 deadline for filing suit is "mandatory and jurisdictional." Id. at 310. We find it necessary to point this out as Lueck repeatedly but mistakenly asserts in his post-submission briefing that " Schroeder has been overruled."

It is also clear that the Texas Supreme Court treats the failure to exhaust the TCHRA's administrative remedies as a jurisdictional defect. See, e.g., City of Waco v. Lopez, 259 S.W.3d 147, 154 (Tex. 2008) (describing "unique and comprehensive provisions" established in chapter 21 and concluding that noncompliance with Commission procedures "deprives courts of subject-matter jurisdiction" over employment-discrimination disputes); Hoffmann-La Roche, Inc., 144 S.W.3d at 446 ("exhaustion of administrative remedies is a mandatory prerequisite to filing a civil action alleging violations of the CHRA"); Austin v. HealthTrust, Inc., 967 S.W.2d 400, 403 (Tex. 1998) (listing section 21.202's 180-day deadline for filing administrative complaint among statutory schemes that "require exhaustion of administrative remedies before filing suit").

So have the Texas courts of appeals that have addressed the issue. See, e.g., Donna Indep. Sch. Dist. v. Rodriguez, No. 13-09-00185-CV, 2009 WL 2962376, at *6-7 (Tex. App.-Corpus Christi Sept. 17, 2009, no pet.) (mem.op.); Texas Dep't of Criminal Justice v. Young, No. 09-07-00635-CV, 2008 WL 4425542, at *5 (Tex.App.-Beaumont Oct. 2, 2008, no pet.) (mem.op.); Davis v. Autonation USA Corp., 226 S.W.3d 487, 491 (Tex.App. Houston [1st Dist.] 2006, no pet.); Austin Indep. Sch. Dist. v. Lowery, 212 S.W.3d 827, 833 (Tex.App.-Austin 2006, pet. denied); Texas Dep't of Protective Regulatory Servs. v. Lynn, No. 03-04-00635-CV, 2005 WL 1991809, at *4 (Tex.App.-Austin Aug. 19, 2005, pet. denied) (mem.op.); City of Houston v. Fletcher, 63 S.W.3d 920, 922 (Tex.App.-Houston [14th Dist.] 2002, pet. denied).

The exhaustion doctrine likewise has deep roots in federal law. "The doctrine of exhaustion of administrative remedies is well established in the jurisprudence of administrative law." Woodford v. Ngo, 548 U.S. 81, 88, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006). "The doctrine provides `that no one is entitled to judicial relief for a supposed or threatened injury until the prescribed administrative remedy has been exhausted.'" Id. at 88-89, 126 S.Ct. 2378 (quoting Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 50-51, 58 S.Ct. 459, 82 L.Ed. 638 (1938)). Exhaustion of administrative remedies serves two main purposes: "First, exhaustion protects `administrative agency authority'" by giving an agency oversight over the programs it administers and discouraging "`disregard of the agency's procedures.'" Id. at 89, 126 S.Ct. 2378 (quoting McCarthy v. Madigan, 503 U.S. 140, 145, 112 S.Ct. 1081, 117 L.Ed.2d 291 (1992)). "Second, exhaustion promotes efficiency. Claims generally can be resolved much more quickly and economically in proceedings before an agency than in litigation," and, in some cases, "claims are settled at the administrative level" or the agency proceedings will succeed in convincing the losing party not to pursue the matter in court. Id.

In Texas, the "[f]ailure to exhaust administrative remedies is truly jurisdictional in nature: it deprives courts of subject-matter jurisdiction over a claim." Texas Dep't of Protective Regulatory Servs. v. Lynn, No. 03-04-00635-CV, 2005 WL 1991809, at *4 (Tex.App.-Austin Aug. 19, 2005, pet. denied) (mem.op.); see Thomas v. Long, 207 S.W.3d 334, 340-42 (Tex. 2006) (holding failure to exhaust administrative remedies deprives trial court of subject-matter jurisdiction). Thus, as we concluded in Lynn, "unless and until the supreme court departs from its view in Schroeder that the Commission on Human Rights Act requires exhaustion of remedies, we will continue to treat the 180-day filing requirement as `mandatory and jurisdictional.'" Id. (quoting Specialty Retailers, 933 S.W.2d at 492). Although it has had many opportunities to do so, the supreme court has not abandoned this view. As this Court is bound by the decisions of the higher court, Lueck's argument that Schroeder's exhaustion holding is "aberrant" and caused by a "misreading" of federal law is unavailing.

Nonetheless, in an effort to better explain the rationale for our holding, we will attempt to address his arguments. Lueck first points out that the cases on which Schroeder relies for the proposition that "[c]onstruing the CHRA to require exhaustion is consistent with . . . Title VII" have since been criticized by the U.S. Supreme Court for characterizing the timely filing of a charge of discrimination with the EEOC as a "jurisdictional prerequisite." See 813 S.W.2d at 487 (citing Alexander v. Gardner-Denver Co., 415 U.S. 36, 47, 94 S.Ct. 1011, 39 L.Ed.2d 147 (1974); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 798, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973)); but see Zipes, 455 U.S. at 393-95 n. 6, 102 S.Ct. 1127 (criticizing this language in Alexander and McDonnell Douglas).

It is true that Schroeder, relying on cases that no longer accurately reflect the U.S. Supreme Court's view of the legal character of Title VII filing deadlines, understood administrative exhaustion to be a "policy" embodied in Title VII that the TCHRA should reflect. We think it is an open question whether the overall statutory scheme established by Title VII is one that requires the exhaustion of administrative remedies, but the Supreme Court has recently indicated that it is not. See Woodford, 548 U.S. at 98, 126 S.Ct. 2378 (noting in dicta that section 2000e-5(e) of Title VII makes no reference to the concept of exhaustion and is not "in any sense an exhaustion provision"). The Fifth Circuit, on the other hand, has recognized that exhaustion under Title VII is required, but its panels are in disagreement over whether exhaustion "is merely a prerequisite to suit, and thus subject to waiver and estoppel, or whether it is a requirement that implicates subject matter jurisdiction." Pacheco v. Mineta, 448 F.3d 783, 788 n. 7 (5th Cir. 2006), cert. denied 549 U.S. 888, 127 S.Ct. 299, 166 L.Ed.2d 154.

Another federal circuit court has held that "administrative exhaustion requirements under Title VII are not jurisdictional" but that "substantial compliance with the presentment of discrimination complaints to an appropriate administrative agency is a jurisdictional prerequisite," Sommatino v. United States, 255 F.3d 704, 708 (9th Cir. 2001), and yet another has affirmatively declared that pre-suit exhaustion is jurisdictional, see Shikles v. Sprint/United Mgmt. Co., 426 F.3d 1304, 1317 (10th Cir. 2005) ("Unlike many other circuits, we have held that a plaintiff's exhaustion of his or her administrative remedies is a jurisdictional prerequisite to suit under Title VII — not merely a condition precedent to suit.").

But the Texas Supreme Court's reasons for continuing to characterize the TCHRA as a statutory scheme that requires exhaustion of administrative remedies are as valid today as they were when Schroeder was decided. Its exhaustion holding can be derived, first and foremost, from the language of the TCHRA. See Lopez, 259 S.W.3d at 153 (holding that courts, in construing provisions of TCHRA, must be guided by intent of legislature as indicated by plain language of statute). Section 21.202(b) states that "[t]he Commission shall dismiss an untimely complaint," see Labor Code § 21.202(b) (emphasis added). Thus, the Commission has no discretion to waive compliance with the requirement that the administrative complaint be timely filed. Instead, the legislature has mandated that the Commission dismiss an untimely complaint without considering reasons why it might have been filed late, thereby bringing to an end the administrative process and all the statutory procedures for investigation, arbitration, and conciliation. In other words, under the statutory scheme of the TCHRA, a late filing of the administrative complaint has exactly the same effect as no filing at all, because an untimely complaint is not routed through the administrative process as the legislature intended it to be.

Cf. Igal v. Brightstar Info. Tech. Group, Inc., 250 S.W.3d 78, 85 (Tex. 2008) (comparing requirements that are jurisdictional and those that are subject to estoppel, waiver, and equitable tolling). In Igal, a case on which Lueck heavily relies, the statute at issue was a filing-limitations provision in chapter 61 of the labor code, which governs wage claims. See id. at 84-85. The Igal court ultimately determined that the chapter 61 provision was not intended to be jurisdictional. See id. at 86. At the time that case was decided, however, the chapter 61 provision did not contain language similar to that in section 21.202(b) requiring the Commission to dismiss untimely claims. We note also that the legislature has since amended chapter 61 to make the 180-day filing deadline for wage claims jurisdictional, see Labor Code § 61.051(c) (West Supp. 2009), and to require the dismissal of untimely wage claims for lack of jurisdiction, see id. § 61.052(b-1), effectively overruling Igal. We further note that the Igal court expressly distinguished Specialty Retailers and Schroeder, noting that those cases dealt with a "different statutory scheme." See Igal, 250 S.W.3d at 83 n. 5.

Thus, subsection (b) evinces the legislature's intent to make the timeliness of the administrative complaint part of the mandatory, pre-suit exhaustion scheme. By providing that failure to comply with section 21.202 results in the dismissal of the complaint, the legislature has effectively declared that those who fail to file their complaints timely are precluded from exhausting their administrative remedies. See Labor Code § 21.202(b); Brooks William Conover, III, Jurisdictional and Procedural Issues Under the Texas Commission on Human Rights Act, 47 Baylor L. Rev. 683, 692-93 (1995) ("The TCHRA creates a unique scheme imposing administrative prerequisites before a private suit may be brought by a person within a protected class. Only after completing all of the administrative prerequisites in a timely fashion does a complainant exhaust the administrative process. . . .").

We also think it significant that Title VII contains no similar provision requiring the EEOC to dismiss untimely complaints, suggesting that the same consequence does not necessarily follow from a Title VII claimant's failure to timely file his administrative complaint.

Lueck suggests that we assign too much significance to subsection (b) and the fact that noncompliance results in the mandatory dismissal of the complaint by the Commission. See Labor Code § 21.202(b). He urges that, rather than "destroy jurisdiction," this provision is what makes jurisdiction in the trial court possible because suit may be filed " only after a required `dismissal' or its equivalent (passage of 180 days without the [Commission's] resolving the complaint) has been obtained." We disagree. Lueck's interpretation would render the chapter 21 exhaustion scheme "wholly ineffective." Cf. Woodford, 548 U.S. at 95, 126 S.Ct. 2378. As the Supreme Court has recognized in the context of a similar administrative exhaustion scheme, "The benefits of exhaustion can be realized only if the [administrative agency] system is given a fair opportunity to consider the grievance. The . . . system will not have such an opportunity unless the grievant complies with the system's critical procedural rules." Id. As a result, noncompliance with fundamental administrative requirements must carry with it a sanction, which serves to deter complainants from bypassing the chapter 21 administrative procedures and proceeding directly to district court. Cf. id. (noting that, were it otherwise, "a prisoner wishing to bypass available administrative remedies [required by the Prison Litigation Reform Act, 42 U.S.C. § 1997e, et seq.,] could simply file a late grievance without providing any reason for failing to file on time. If the prison then rejects the grievance as untimely, the prisoner could proceed directly to federal court."). Under Lueck's proposed construction, however, a complainant could wait a decade or more before filing his administrative complaint and then, after the Commission dismissed the complaint as required by section 21.202(b), could proceed directly to state district court.

Lueck further argues that the TCHRA cannot require exhaustion of administrative remedies because the text of the statute fails to establish that the legislature intended to confer exclusive jurisdiction on the Commission to resolve employment-discrimination disputes. His argument is addressed to the principle that the purpose of an exhaustion-of-remedies requirement is to ensure that the appropriate body adjudicates the dispute, which is a "hallmark of a jurisdictional statute." University of Tex. Sw. Med. Ctr. v. Loutzenhiser, 140 S.W.3d 351, 361 (Tex. 2004) (citing Essenburg v. Dallas County, 988 S.W.2d 188, 189 (Tex. 1998) (per curiam)). The legislature decides that an administrative body is the appropriate place to resolve an issue when it establishes an administrative procedure for that purpose. Strayhorn v. Lexington Ins. Co., 128 S.W.3d 772, 780 (Tex.App.-Austin 2004), aff'd, 209 S.W.3d 83 (Tex. 2006).

Contrary to Lueck's assertions, however, the legislature has established an administrative procedure in chapter 21 of the labor code that allows the Commission to receive, investigate, and attempt to resolve employment-discrimination disputes. See generally Labor Code §§ 21.003-.210 (listing power and duties of Commission, describing complaint procedure, and authorizing Commission to investigate complaints). Specifically, the Commission has the power to file civil actions to effectuate the purposes of the anti-discrimination statute, to compel witnesses to testify, and to order the production of records, documents, and other evidence to investigate alleged violations of the chapter. See id. § 21.003(a)(3)-(4). The administrative-claim requirement of section 21.202 is integral to this comprehensive scheme, in contrast to the kinds of stand-alone presentment or notice-of-suit requirements that have been held to be non-jurisdictional. See Loutzenhiser, 140 S.W.3d at 361-62 ("A requirement of presentment merely gives a governmental unit an opportunity to decide for itself whether to pay a claim."); see also Essenburg, 988 S.W.2d at 188-89 (same).

That the administrative remedy prescribed by the legislature does not provide for the final adjudication of a complainant's claims, which Lueck suggests is essential for us to determine that exhaustion of administrative remedies is jurisdictional, is not dispositive. On the contrary, we believe exhaustion here is designed to promote the twin objectives of (1) protecting the Commission's authority by investing it with the power to review and intervene in claims arising under the Act that it administers, and (2) promoting efficiency by encouraging the nonjudicial resolution of claims. See Woodford, 548 U.S. at 89, 126 S.Ct. 2378 (explaining purposes of administrative exhaustion).

The Texas Supreme Court has clearly and unequivocally stated that the TCHRA requires exhaustion of administrative remedies before suit, and it is well established in Texas that the failure to exhaust before filing suit deprives the trial court of jurisdiction. In light of the foregoing, we conclude that the timely filing requirement contained in section 21.202 of the labor code is part of an administrative process that must be exhausted before filing suit for employment discrimination. Unless a party has exhausted this requirement, the trial court lacks subject-matter jurisdiction over his suit. See Thomas, 207 S.W.3d at 340.

CONCLUSION

Because Lueck's failure to timely file his administrative complaint with the Commission deprived the trial court of subject-matter jurisdiction over his claims, we affirm the trial court's order granting the Department's plea to the jurisdiction.