Employment Discrimination claims under state law (Texas Labor Code, formerly TCHRA): Complaint must be timely filed with TWC

   
Deadline for filing administrative charge against employer with the Texas Workforce Commission’s Civil Rights Division is rather unforgiving. Missed deadline generally precludes law suit, i.e. will typically result in dismissal if the complaining employee goes ahead and files a lawsuit anyhow. 

    

EMPLOYMENT DISCRIMINATION CLAIM UNDER STATE LAW - ADMINISTRATIVE PROCEDURE  

  

Under Chapter 21 of the Texas LaborCode, a person must file a complaint with the TWC [Texas Workforce Commission] no later than the 180th day after the allegedly unlawful employment practice took place. See TEX. LAB. CODE ANN. § 21.202 (West 2006). If the complaint is untimely, the commission must dismiss it. Id.

   

When does the 180-day period start to run?

   
Furthermore, ―[t]he limitations period begins when the employee is informed of the allegedly discriminatory employment decision, not when that decision comes to fruition.‖ Specialty Retailers, Inc. v. DeMoranville, 933 S.W.2d 490, 493 (Tex. 1996). During the claims process, the TWC investigates allegations and determines whether there is ―reasonable cause to believe the employer violated the Texas anti-discrimination law,‖ in order to promote resolution. City of Waco v. Lopez, 259 S.W.3d 147, 154 (Tex. 2008).

  
These detailed administrative procedures are mandatory pre-requisites for a plaintiff to bring a chapter 21 action to court. See Waffle House, Inc. v. Williams, 313 S.W.3d 796, 804–05 (Tex. 2010) (noting that administrative remedies and procedures must be exhaustedprior to litigation of statutory employment claims); see also Lueck v. State, 325 S.W.3d 752, 762 (Tex. App.—Austin 2010, pet. filed). If a complainant fails to comply with these administrative procedures, the courts are deprived ofsubject-matter jurisdiction. Lopez, 259 S.W.3d at 154.

   
SOURCE: CORPUS CHRISTI - EDINBURG COURT OF APPEALS - 13-10-00379-CV – 12/8/11

TCHRA: Age discrimination claims under state anti-discrimination statute (Chapter 21 Tex. Labor Code)

AGE DISCRIMINATION CLAIMS UNDER TEXAS LAW (Labor Code Chapter 21 claim)

Texas statute provides remedy against discriminatory employment practices like Tile VII; courts follow federal precedent in interpreting the Texas Commission on Human Rights Act [TCHRA]

Under the THCRA:
An employer commits an unlawful employment practice if because of race, color, disability, religion, sex, national origin, or age the employer:
(1) 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; or
(2) limits, segregates, or classifies an employee or applicant for employment in a manner that would deprive or tend to deprive an individual of any employment opportunity or adversely affect in any other manner the status of an employee.
TEX. LAB. CODE ANN. § 21.051 (West 2006).

The TCHRA also provides:

(a) Except as otherwise provided by this chapter, an unlawful employment practice is established when the complainant demonstrates that race, color, sex, national origin, religion, age, or disability was a motivating factor for an employment practice, even if other factors also motivated the practice, unless race, color, sex, national origin, religion, age, or disability is combined with objective job-related factors to attain diversity in the employer’s work force.

(b) In a complaint in which a complainant proves a violation under Subsection (a) and a respondent demonstrates that the respondent would have taken the same action in the absence of the impermissible motivating factor, the court may grant declaratory relief, injunctive relief except as otherwise provided by this subsection, and attorney’s fees and costs demonstrated to be directly attributable only to the pursuit of a complaint under Subsection (a), but may not award damages or issue an order requiring an admission, reinstatement, hiring, promotion, or back pay.

Id. § 21.125. Because the TCHRA’s stated purpose is to “provide for the execution of the policies of Title VII of the Civil Rights Act of 1964 and its subsequent amendments,” Texas courts apply analogous federal case law when interpreting the Texas statute. Id. § 21.001(1); Quantum Chem. Corp. v. Toennies, 47 S.W.3d 473, 476 (Tex. 2001).

SOURCE: San Antonio Court of Appeals - 04-10-00730-CV - 6/22/11

OTHER RELEVANT CASE LAW EXCERPTS ON TCHRA EMPLOYMENT DISCRIMINATION CLAIMS

Texas law requires that a complaint of unlawful employment discrimination be filed with the Texas Commission on Human Rights within 180 days after the alleged unlawful employment action occurs. Cooper-Day v. RME Petroleum Co., 121 S.W.3d 78, 83 (Tex.App.-Fort Worth 2003, pet. denied), citing Specialty Retailers, Inc. v. DeMoranville, 933 S.W.2d 490, 492 (Tex. 1996); see Tex.Lab.Code Ann. § 21.202(a)(Vernon 2006). This limitations period is mandatory and jurisdictional. Schroeder v. Texas Iron Works, Inc., 813 S.W.2d 483, 486 (Tex. 1991). That is, failure to timely file an administrative complaint deprives Texas trial courts of subject matter jurisdiction over a subsequent claim against the employer. See Cooper-Day, 121 S.W.3d at 83.

The Texas Commission on Human Rights Act (the "TCHRA," codified in Chapter 21 of the Texas Labor Code) makes it unlawful for an employer to discriminate against an employee with respect to compensation or the terms, conditions, or privileges of employment because of race, color, disability, religion, sex, or national origin. TEX. LAB.CODE ANN. § 21.051 (Vernon 2006). Before filing suit, a plaintiff must file a complaint with the TWC or EEOC and receive a notice of right to sue on the claims alleged. See id. §§ 21.201-202. Once that notice of right to sue is received, the plaintiff must then file suit within 60 days. Id. § 21.254. Texas courts have interpreted section 21.254 to mean that a plaintiff must file the suit and serve notice of the suit upon the proper parties within 60 days of receiving of notice of a right to sue from the TWC. See, e.g., Tarrant County v. Vandigriff, 71 S.W.3d 921, 924 (Tex.App.-Fort Worth 2002, pet. denied) ("The mere filing of a lawsuit is not sufficient to meet the requirements of `bringing suit' within the limitations period [of Chapter 21]; rather, a plaintiff must both file her action and have the defendant served with process.") (emphasis in original); Davis v. Educ. Serv. Ctr., 62 S.W.3d 890, 893 n. 4 (Tex. App.-Texarkana 2001, no pet.); Roberts v. Padre Island Brewing Co., 28 S.W.3d 618, 621 (Tex.App.-Corpus Christi 2000, pet. denied);

The limitations period begins when the employee is informed of the allegedly discriminatory employment decision. Tex.Lab.Code Ann. § 21.202(a); see Delaware State College v. Ricks, 449 U.S. 250, 258, 101 S.Ct. 498, 504, 66 L.Ed.2d 431 (1980); Specialty Retailers, 933 S.W.2d at 493. The date the allegedly discriminatory decision goes into effect, or the date on which the effect of such decision is realized by the employee, does not alter the commencement of the 180-day period. See Villareal v. Williams, 971 S.W.2d 622, 625 (Tex.App.-San Antonio 1998, no pet.), citing Johnson & Johnson Med., Inc. v. Sanchez, 924 S.W.2d 925, 928-29 (Tex. 1996)(Applying the Worker's Compensation Act); Specialty Retailers, 933 S.W.2d at 492-93 (Applying the TCHR); Cooper-Day, 121 S.W.3d at 83, 85. As the United States Supreme Court explained in its interpretation of the equivalent provision in Title VII, "`the proper focus is upon the time of the discriminatory acts, not upon the time at which the consequences of the acts became most painful.'" Ricks, 449 U.S. at 258, 101 S.Ct. at 504.

"The [Texas Commission on Human Rights Act (CHRA)] . . . establishes a `comprehensive administrative review system,' under which the `exhaustion of administrative remedies is a mandatory prerequisite to filing a civil action alleging violations of the CHRA.'" Hoffmann-La Roche, Inc. v. Zeltwanger, 144 S.W.3d 438, 446 (Tex. 2004) (quoting Schroeder v. Tex. Iron Works, Inc., 813 S.W.2d 483, 485, 488 (Tex. 1991)). To comply with the exhaustion requirement, an employee must (1) file a complaint with the EEOC within 180 days of the alleged discriminatory act and (2) allow the EEOC to dismiss the complaint or resolve the complaint within 180 days before filing suit. Rice v. Russell-Stanley, L.P., 131 S.W.3d 510, 513 (Tex. App. Waco 2004, pet. denied); see Tex. Lab. Code Ann. §§ 21.201-.202, 21.208 (Vernon 2006); see also Gallegos v. Johnson, No. 13-07-00603-CV, 2010 Tex. App. LEXIS 1330, at **37-38 (Tex. App.-Corpus Christi Feb. 25, 2010, no pet. h.) (mem. op.). A plaintiff's entitlement to a right-to-sue letter signals that she has satisfied the exhaustion requirement. See Rice, 131 S.W.3d at 512 (holding that "it is the entitlement to the right-to-sue letter that exhausts the complainant's administrative remedies," not its possession); City of Houston v. Fletcher, 63 S.W.3d 920, 923 (Tex. App.-Houston [14th Dist.] 2002, no pet.) (explaining that "[t]he statute certainly supports an interpretation that the right-to-sue letter is notice of exhaustion, not actually part of exhaustion"); see also Gallegos, 2010 Tex. App. LEXIS 1330, at *38. Additionally, the suit must be filed no later than two years after the original complaint is filed. See Tex. Lab. Code Ann. § 21.256 (Vernon 2006); Rice, 131 S.W.3d at 513; see also Gallegos, 2010 Tex. App. LEXIS 1330, at **37-38.

TCHRA: Types of Discrimination Claims under Texas anti-discrimination act (employment)

TCHRA CLAIM [discrimination in employment under state law] [TCHRA=TEXAS COMMISSION ON HUMAN RIGHTS ACT] Because the TCHRA’s stated purpose is to “provide for the execution of the policies of Title VII of the Civil Rights Act of 1964 and its subsequent amendments,” Texas courts apply analogous federal case law when interpreting the Texas statute. Id. § 21.001(1); Quantum Chem. Corp. v. Toennies, 47 S.W.3d 473, 476 (Tex. 2001). There are two types of Title VII employment discrimination cases. Quantum Chem., 47 S.W.3d at 476. The first is the “pretext” case, in which the plaintiff claims the employer’s stated reason for the adverse action was a pretext for discrimination. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 252–53 (1981); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–04 (1973). In a pretext case, federal and Texas courts traditionally follow the McDonnell Douglas-Burdine framework for allocation of proof. E.g., Shackelford v. Deloitte & Touche, LLP, 190 F.3d 398, 404 n.2 (5th Cir. 1999); Quantum Chem., 47 S.W.3d at 479–80; Claymex Brick & Tile, Inc. v. Garza, 216 S.W.3d 33, 35 (Tex. App.—San Antonio 2006, no pet.). Under the McDonnell Douglas-Burdine framework, the plaintiff-employee has the burden of producing evidence that raises an inference of discrimination. Russo v. Smith Int’l, Inc., 93 S.W.3d 428, 435 (Tex. App.—Houston [14th Dist.] 2002, pet. denied). The plaintiff’s burden at this stage “is not onerous.” Quantum Chem., 47 S.W.3d at 477 (quoting Burdine, 450 U.S. at 253). A prima facie case of age discrimination requires proof that the plaintiff (1) is at least forty years of age; (2) was discharged; (3) was qualified for the position from which he was discharged; and (4) was replaced by someone under forty, replaced by someone younger, or was otherwise discharged because of age. Russo, 93 S.W.3d at 435. If the plaintiff makes this showing, the burden then shifts to the defendant-employer to articulate a “legitimate, nondiscriminatory reason” for the plaintiff’s discharge. Quantum Chem., 47 S.W.3d at 477 (quoting McDonnell Douglas, 411 U.S. at 802). If the defendant can articulate such a reason, the presumption of discrimination created by the plaintiff’s prima facie showing is eliminated, and the burden shifts back to the plaintiff to show the defendant’s stated reason was a pretext for discrimination. Id. The Texas Supreme Court has held that under the TCHRA, a plaintiff need only prove that age discrimination was “a motivating factor” in the termination decision. Id. at 480. The second type of employment discrimination case is the mixed-motive case, in which the plaintiff has direct evidence of discrimination in the employment decision. Price Waterhouse v. Hopkins, 490 U.S. 228, 244–45 (1989). Whether a case will be classified as a pretext case or a mixed-motive case “depends entirely” on whether the plaintiff has direct evidence that discriminatory motives influenced the employer’s decision to terminate the plaintiff. Quantum Chem., 47 S.W.3d at 476. If the plaintiff has only circumstantial evidence that the employment decision was motivated by discrimination, the case will be classified as a pretext case “regardless of how many motives the employer had.” Id. at 477. SOURCE: San Antonio Court of Appeals - 04-10-00730-CV - 6/22/11

TCHRA Retaliation claim against Employer

RETALIATION CLAIM In an action for retaliation brought under the TCHRA [ Texas Commission on Human Rights Act, no Section 21 of the Labor Code ] , the plaintiff-employee must make a prima facie showing that: (1) he engaged in a protected activity, (2) an adverse employment action occurred, and (3) a causal link existed between the protected activity and the adverse action. Dias v. Goodman Mfg. Co., L.P., 214 S.W.3d 672, 676 (Tex. App.—Houston [14th Dist.] 2007, pet. denied). Protected activities include: (1) opposing a discriminatory practice; (2) making or filing a charge; (3) filing a complaint; or (4) testifying, assisting, or participating in any manner in an investigation, proceeding, or hearing. Id. (citing TEX. LAB. CODE ANN. § 21.055). If the plaintiff makes this showing, the burden shifts to the defendant-employer to articulate a legitimate, nondiscriminatory reason for the adverse employment action. Id. SOURCE: San Antonio Court of Appeals - 04-10-00730-CV - 6/22/11 AGE DISCRIMINATION CLAIM Under the THCRA: An employer commits an unlawful employment practice if because of race, color, disability, religion, sex, national origin, or age the employer: (1) 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; or (2) limits, segregates, or classifies an employee or applicant for employment in a manner that would deprive or tend to deprive an individual of any employment opportunity or adversely affect in any other manner the status of an employee. TEX. LAB. CODE ANN. § 21.051 (West 2006). The TCHRA also provides: (a) Except as otherwise provided by this chapter, an unlawful employment practice is established when the complainant demonstrates that race, color, sex, national origin, religion, age, or disability was a motivating factor for an employment practice, even if other factors also motivated the practice, unless race, color, sex, national origin, religion, age, or disability is combined with objective job-related factors to attain diversity in the employer’s work force. (b) In a complaint in which a complainant proves a violation under Subsection (a) and a respondent demonstrates that the respondent would have taken the same action in the absence of the impermissible motivating factor, the court may grant declaratory relief, injunctive relief except as otherwise provided by this subsection, and attorney’s fees and costs demonstrated to be directly attributable only to the pursuit of a complaint under Subsection (a), but may not award damages or issue an order requiring an admission, reinstatement, hiring, promotion, or back pay. Id. § 21.125. Because the TCHRA’s stated purpose is to “provide for the execution of the policies of Title VII of the Civil Rights Act of 1964 and its subsequent amendments,” Texas courts apply analogous federal case law when interpreting the Texas statute. Id. § 21.001(1); Quantum Chem. Corp. v. Toennies, 47 S.W.3d 473, 476 (Tex. 2001). SOURCE: San Antonio Court of Appeals - 04-10-00730-CV - 6/22/11