                                      In The

                               Court of Appeals
                    Ninth District of Texas at Beaumont
                           ____________________
                              NO. 09-14-00021-CV
                           ____________________


         ELIZABETH WOODS AND KAREN PRATER, Appellants

                                        V.

    COMMUNITIES IN SCHOOL SOUTHEAST TEXAS AND KAREN
                     NEWTON, Appellees

_________________________________________________________________________

                    On Appeal from the 136th District Court
                           Jefferson County, Texas
                         Trial Cause No. D-194,118
_________________________________________________________________________

                          MEMORANDUM OPINION

      Elizabeth Woods (Woods) and Karen Prater (Prater) (collectively

“appellants” or “plaintiffs”) appeal the trial court’s order granting a plea to the

jurisdiction filed by Communities in School Southeast Texas (CISSET) and Karen

Newton (Newton) (collectively “appellees” or “defendants”) and dismissing

appellants’ claims with prejudice. On appeal, appellants argue the trial court erred


                                         1
because their common-law claims of breach of contract and fraud are not governed

by the Texas Commission on Human Rights Act (“TCHRA” or “Chapter 21” or

“the Act”) and that the claims against Newton should not have been dismissed

because the TCHRA creates a cause of action only against an employer and not

against supervisors or individual employees. See Tex. Lab. Code Ann. § 21.001-

21.556 (West 2006 & Supp. 2014). Finding no error, we affirm the trial court’s

judgment granting defendants’ plea to the jurisdiction and dismissing plaintiffs’

claims with prejudice.

                                      THE TCHRA

       The TCHRA makes it unlawful for an “employer” to retaliate “against a

person who, under [Chapter 21]: (1) opposes a discriminatory practice; (2) makes

or files a charge; (3) files a complaint; or (4) testifies, assists, or participates in any

manner in an investigation, proceeding, or hearing.” Tex. Lab. Code Ann. § 21.055

(West 2006). The discriminatory practices made unlawful under the Act include

adverse employment decisions based on race, color, disability, religion, sex,

national origin, or age. Id. § 21.051. Once a plaintiff files a proper charge of

discrimination, the plaintiff must file a lawsuit no later than two years after the

charge is filed, or else the suit is barred. Id. § 21.256.

             The [T]CHRA was enacted to address the specific evil of
       discrimination and retaliation in the workplace. Tex. Lab. Code
                                            2
      § 21.001(4). By enacting the [T]CHRA, the Legislature created a
      comprehensive remedial scheme that grants extensive protections to
      employees in Texas, implements a comprehensive administrative
      regime, and affords carefully constructed remedies. These protections
      and related restrictions are expressly extended to public employees.
              ....
      In the [T]CHRA, . . . the Legislature created unique and
      comprehensive provisions for external administrative review,
      alternative dispute resolution, and exhaustion of administrative
      remedies. See Tex. Lab. Code §§ 21.201-.211. Most significantly, the
      Texas Workforce Commission civil rights division, a stand-alone
      commission specifically dedicated to curbing unlawful workplace
      bias, investigates the complaint and determines whether there is
      reasonable cause to believe the employer violated Texas anti-
      discrimination law, and if so, attempts to resolve the matter “by
      informal methods of conference, conciliation, and persuasion.”
      Id.§§ 21.0015, .003, .207(a). These extensive investigation and
      resolution procedures are designed to favor conciliation over
      litigation, and noncompliance deprives courts of subject matter
      jurisdiction. Schroeder v. Tex. Iron Works, Inc., 813 S.W.2d 483, 485-
      88 (Tex. 1991).

City of Waco v. Lopez, 259 S.W.3d 147, 153-54 (Tex. 2008).

                           UNDERLYING FACTS

Woods’ Employment and Complaints.

      According to the record, Woods was employed at CISSET from May 2002,

until the termination of her employment in May 2010. On November 3, 2009,

Woods filed a grievance with CISSET, wherein she alleged the following:

“[c]ircumventing my authority with the campus staff; [n]ot being allowed to




                                        3
perform duties as the Program Coordinator[; and] [b]eing overloaded with other

jobs that limit me from doing my primary job as PC.”

      On February 2, 2010, Woods filled out and filed an Intake Questionnaire

with the Equal Employment Opportunity Commission (EEOC) in which she

alleged that she had an employment discrimination claim that was based on race

and retaliation of her employer, CISSET and “Dr. Karen Newton, Executive

Director.” She explained on the EEOC questionnaire that she had complained to

the supervisor for referring to her as “gal[,]” and that in a grievance filed against

Newton by an employee supervised by Woods, Woods had refused to support and

take Newton’s side against the other employee. Woods further stated that, since the

time she filed her complaints, she had been “retaliated against by [her] supervisor,”

and that she was not being allowed to perform her job duties or attend “meetings

relative to [her] job[,]” and that her supervisor was trying to get her “reassigned.”

Woods attached a written statement providing the following additional

information:

      In September 2009, Dr. Karen Newton became the Executive Director
      of Communities In Schools SETX.

      Even though she owned a vehicle, she always had me drive her
      around to the campuses like I was her chauffeur. She never once
      suggested that we use her car. It was similar to “Driving Mrs. Daisy.”
      This is also when she began to refer to all of the black women that
      worked under her within the program as “gal[.”] I requested a meeting
                                         4
      with [] the Dr. Newton in October 2009 and informed her that I did
      not like being call [sic] girl. She stated it must be our “cultural
      differences[.”] This is when the retaliation began. In that in [sic]
      November another staff person filed a grievance against Dr. Newton
      for being reassigned. Since I did not side with Dr. Newton, this only
      made matters worse for me. She continued to exclude me from
      meetings, prohibited [sic] from performing my job duties,
      circumvented my authority with staff that I supervise, added other
      jobs to me that other staff was getting paid to perform, made
      implications about me regarding the previous administration, and has
      attempted to get me reassigned. The workplace has become a hostile
      working environment for me.

      Woods filed another grievance dated February 15, 2010, wherein Woods

claimed harassment, retaliation for participation in a grievance, and other

violations or misapplications of policy. In this grievance she stated that “[a]n

EEOC complaint was filed on February 2, 2010[,]” and “[t]his grievance is an

addendum to the grievance that was filed November 3, 2010[.]” Woods

complained that she was being retaliated against because she was “performing

duties as EEOC representative by facilitating grievance” filed by another

employee.

      On April 30, 2010, Woods filed yet another grievance, wherein she again

described the nature of her complaint as harassment, retaliation for participation in

a grievance, other violations or misapplication of policy, and unfair treatment by

management. She claimed she was being retaliated against due to her performing

duties as the supervisor of Prater by facilitating the beginning stages of Prater’s
                                         5
grievance. On May 11, 2010, Woods continued to describe the nature of her

grievance as based on dismissal, retaliation for participation in grievance, other

violations or misapplication of policy, and other unfair treatment by management.

      Woods signed a “Charge of Discrimination” which was filed with the Texas

Workforce Commission civil rights division (TWC) and EEOC on July 22, 2010.

Woods checked the box indicating she was discriminated against based on race and

retaliation from September 2009 to May 2010. She alleged the following:

      I have been an employee of this facility since about May 7, 2002.
      During my employment as a Case Aide, Campus Site Director,
      Cluster Leader, Trainer, and Program Coordinator, I have not had any
      critical performance issues. However, in September 2009, Karen
      Newton, became the Executive Director of Communities and had
      supervisory authority over me. During the following periods I was
      subjected to a hostile work environment, harassment, and different
      terms, condition and privileges of employment by selecting me to
      chauffer her around as if I were her personal driver. During these
      periods she would refer to me and other Black colleagues as gals. I
      made her aware of the offensive nature of several incidents but she
      only regarded it as cultural differences. I was subjected to retaliation
      around November 2009 when another colleague filed a complaint
      about Newton in which I provided information about offensive
      incidents. I was written up, denied my duties and excluded from
      required staff meetings, suspended, and then terminated in May 2010.

      I believe that I have been discriminated against in violation of Title
      VII of the Civil Rights Act of 1964, as amended because of my race,
      Black and subjected to retaliation because I opposed protested [sic]
      against discriminatory acts and conduct.




                                         6
On August 5, 2010, Newton received a Notice of Charge of Discrimination from

the District Director of the EEOC notifying Newton that Woods had filed a charge

of employment discrimination based on race and retaliation against CISSET.

Prater’s Employment and Complaints.

      Prater was employed as a Campus Director at CISSET, and she was a

subordinate to Woods. Prater was employed with CISSET from July 1999, until

the termination of her employment in April 2010. On April 15, 2010, Prater filed a

grievance with CISSET wherein she alleged “other violation or misapplication of

policy” and “educational intimidation” regarding Newton’s handling of staff

meetings and company policies in March and April of 2010. On April 23, 2010,

Prater filed another grievance with CISSET alleging “retaliation for participation

in grievance[,]” “misapplication of policy[,]” “other unfair treatment by

management[,]” and “educational intimidation[.]” She complained of the handling

of her earlier grievance and of her suspension. On May 12, 2010, Prater filed a

grievance alleging “dismissal[,] “retaliation for participation in grievance[,]”

“misapplication of policy[,]” “other unfair treatment by management[,]” and

“educational intimidation[.]” She complained of the events surrounding her

suspension and termination.




                                        7
      On July 29, 2010, Prater completed an Equal Employment Opportunity

Intake Questionnaire in which she alleged employment discrimination based on

race and retaliation. She alleged that Newton suspended her due to the grievances

she had filed and then terminated her employment in the middle of the grievance

process. Prater also alleged that Newton called her a derogatory term and that

Newton overlooked Prater due to Prater’s “lack of degree.”

      On September 3, 2010, Prater signed and filed a Charge of Discrimination

with the TWC and the EEOC. Prater alleged discrimination based on race and

retaliation. She stated the following:

      I began my employment on July 6, 1999 as an Administrative
      Assistant. On March 2003, I was promoted to Campus Site Director.
      Over the course of time, I was harassed by the Executive Director,
      Karen Newton (white), for not holding a 4 year degree. Ms. Newton
      referred to . . . African Americans as ‘gal’. On October 16, 2009, I
      was overlooked to conduct interviews because I did not hold a 4 year
      degree.

      On April 16, 2010, I filed a grievance for writing a statement on a
      document that I was asked to complete. The completion of the
      document in the timeframe allotted was unethical. I was suspended for
      twelve days for filing a grievance and on April 27, 2010, I was
      terminated by Ms. Newton for filing a grievance.

      I believe I was discriminated against because of my race (African
      American) and retaliated against for filing a grievance, in violation of
      Title VII of the Civil Rights Act of 1964, as amended.




                                         8
First Lawsuit and Dismissal of Suit in the 172nd District Court.

      On November 29, 2010, Woods and Prater filed an Original Petition

asserting claims against CISSET, Newton, and Judy Nichols. The suit was

assigned to the 172nd Judicial District Court of Jefferson County, Texas. In their

petition, Woods and Prater sought declaratory and injunctive relief, as well as

damages. In their amended petition filed on June 19, 2012, Woods and Prater

asserted causes of action for declaratory relief, tortious interference with a business

relationship, and discrimination and retaliation under Chapter 21 of the Texas

Labor Code. On November 14, 2012, their suit was dismissed for want of

prosecution.

Second Lawsuit and Granting of Plea to the Jurisdiction.

      On March 4, 2013, and after the expiration of the mandatory filing deadline

for a Chapter 21 lawsuit, 1 Woods and Prater filed a second lawsuit against CISSET

and Newton, which was assigned to the 136th Judicial District Court of Jefferson

County, Texas. In their Original Petition, Woods and Prater asserted that their

claims were for fraud and breach of contract arising out of the termination of their
      1
        Because Woods filed her charge of discrimination on or about July 22,
2010, the last day Woods could file a Chapter 21 lawsuit within the limitations
period was July 22, 2012. See Tex. Lab. Code Ann. § 21.256 (West 2006). Because
Prater filed her charge of discrimination on or about September 3, 2010 , the last
day Prater could file a Chapter 21 lawsuit within the limitations period was
September 3, 2012. See id.
                                          9
employment with CISSET. The plaintiffs included allegations that, among other

things, Newton had referred to only the African American female employees “by

the historically racist-tinged word ‘gal’” and commented on the “difference in

cultural backgrounds[,]” that Newton retaliated against them after they filed

grievances, and that Newton conspired with another employee to misrepresent the

facts in order to justify Woods’ termination, defendants made numerous

misrepresentations, the plaintiffs relied on the misrepresentations to their

detriment, and the misrepresentations caused plaintiffs to suffer substantial

damages. Plaintiffs also alleged that defendants entered into a contract with

plaintiffs and breached that contract, resulting in plaintiffs’ deprivation of the

benefit of their employment contract.

      CISSET and Newton filed an answer entering a general denial and asserting

certain defenses. CISSET and Newton also filed a plea to the jurisdiction alleging

that Plaintiffs’ claims for breach of contract and fraud are preempted by Chapter 21

of the Texas Labor Code and must be dismissed. Woods and Prater filed a response

to the plea to the jurisdiction, asserting that the TCHRA is not the exclusive

remedy for employment discrimination, the TCHRA does not preempt employees

from asserting common-law causes of action, and the plaintiffs have not brought

their actions under Chapter 21. Defendants filed a reply to plaintiffs’ response to

                                        10
the plea to the jurisdiction. Woods and Prater subsequently filed a First Amended

Original Petition.

      At the hearing on the plea to the jurisdiction, plaintiffs’ counsel requested

leave to file a Second Amended Original Petition. The trial court granted the

request, but also allowed the defendants to supplement their pleadings with copies

of the grievances. In comparison to the earlier petitions, Plaintiffs’ Second

Amended Original Petition omitted some of the wording specifically describing

racial allegations, and added “[t]his lawsuit is NOT about the type of ‘retaliation’

or ‘discrimination’ statutorily proscribed by [Chapter 21].” Plaintiffs attached a

copy of their grievances and alleged that “[d]uring the periods of their respective

employments by CISSET, Plaintiffs respectively filed various workplace

Grievances, none of       which    complained      of statutorily proscribed    race

discrimination, and harassment[.]” Plaintiffs also attached affidavits in which

Woods and Prater each attested to the following:

      . . . I am the Plaintiff in Cause No. D194188, 136th District Court,
      Jefferson County. The Exhibits attached to the Plaintiffs Second
      Amended Original Petition which purport to be grievances, both
      internal and external which I filed against CISSET are true and correct
      copies of grievances, both internal and external which I filed against
      CISSET. Further, the Exhibits attached to the Plaintiffs Second
      Amended Original Petition which purport to be related to my
      application for Unemployment Compensation [sic] CISSET are true
      and correct copies of documents which are related to my application
      for Unemployment Compensation against CISSET.
                                        11
      I never believed or claimed in any internal grievance at CISSET that I
      was being subjected to race, or gender, or national origin, or age—any
      illegal Title VII discrimination by CISSET.

Both Woods and Prater also stated in their respective affidavits that they thought or

hoped that an EEOC investigation would reveal the reason for the termination of

their employment. Plaintiffs filed a supplemental response to defendants’ plea to

the jurisdiction, and plaintiffs asserted that their amended petition and evidence

demonstrated that their claims are not preempted by Chapter 21.

      The trial court granted the Defendants’ Plea to the jurisdiction. The trial

court issued a letter ruling explaining the basis of its decision. 2 According to the

letter, the trial court relied on Waffle House, Lopez, and Pruitt, and concluded the

plaintiffs’ causes of action are preempted by Chapter 21 of the Texas Labor Code,

and plaintiffs cannot replead to avoid the exclusivity of Chapter 21. See Waffle

House, Inc. v. Williams, 313 S.W.3d 796 (Tex. 2010); City of Waco v. Lopez, 259

S.W.3d 147 (Tex. 2008); Pruitt v. Int’l Ass’n. of Fire Fighters, 366 S.W.3d 740

(Tex. App.—Texarkana 2012, no pet.). The trial court signed an order granting

defendants’ plea to the jurisdiction, and dismissing plaintiffs’ claims for breach of

contract and fraud with prejudice.

      2
       Letter rulings do not constitute formal findings of fact. Cherokee Water Co.
v. Gregg Cnty. Appraisal Dist., 801 S.W.2d 872, 878 (Tex. 1990).
                                         12
      Plaintiffs filed a motion for new trial asserting that plaintiffs should not be

subjected to “gotcha” tactics for “flirt[ing] with liability under more than one legal

theory” and that “[t]he Court erred in granting the Plea to the Jurisdiction because

there is a dispute[d] fact issue about whether Plaintiffs’ common[-]law causes of

actions are intertwined with those that would support the statutory remedies of

Chapter 21 of the Texas Labor Code, and the fact should be submitted to the jury.”

Defendants filed a response to the motion and argued the motion fails to establish

good cause to set aside the judgment, the facts alleged and the evidence presented

in the motion had already been considered by the trial court when it signed the

judgment, and plaintiffs’ bases for a new trial are legally improper. After plaintiffs

filed a reply to defendants’ response, the motion for new trial was overruled by

operation of law, and plaintiffs appealed.

                               STANDARD OF REVIEW

      A party may challenge the absence of subject-matter jurisdiction through a

plea to the jurisdiction—a dilatory plea used to defeat the alleged claims without

regard to whether they have merit. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547,

554 (Tex. 2000). “The purpose of a dilatory plea is not to force [a] plaintiff[] to

preview [its] case on the merits but to establish a reason why the merits of the

plaintiff[’s] claims should never be reached.” Id.

                                         13
      Because jurisdiction is a question of law, we review the trial court’s ruling

on a plea to the jurisdiction de novo. See Mayhew v. Town of Sunnyvale, 964

S.W.2d 922, 928 (Tex. 1998). We review the trial court’s ruling to determine

whether facts have been alleged that affirmatively demonstrate jurisdiction in the

trial court. Lopez, 259 S.W.3d at 150; Tex. Dep’t of Parks & Wildlife v. Miranda,

133 S.W.3d 217, 226 (Tex. 2004). The burden of alleging such facts falls to the

pleader. Miranda, 133 S.W.3d at 226. Absent an allegation that the plaintiff’s

jurisdictional pleadings are fraudulent, the court must take the allegations in the

petition as true and must construe them liberally in favor of the plaintiff when

ruling on the plea. Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446

(Tex. 1993). However, when deciding a plea to the jurisdiction, a court “is not

required to look solely to the pleadings but may consider evidence and must do so

when necessary to resolve the jurisdictional issues raised.” Blue, 34 S.W.3d at 555.

We will affirm the trial court’s dismissal order on any legal theory supported by

the record. Pruitt, 366 S.W.3d at 746 (citing Seaman v. Seaman, 425 S.W.2d 339,

341 (Tex. 1968)).

                                     ANALYSIS

      Appellants contend in their first issue on appeal that their breach of contract

and fraud claims were not governed by the TCHRA and the trial court improperly

                                         14
granted appellees’ plea to the jurisdiction. Appellees argue that appellants’ claims

against appellees “are and always have been race discrimination and retaliation

claims[,]” and that “[u]pon realizing that their claims for race discrimination and

retaliation were time-barred and determining that such claims were not

meritorious, Appellants attempted to keep their claims alive by recasting them as

common law-claims for breach of contract and fraud.” 3

      In City of Waco v. Lopez, the Texas Supreme Court held that a public

employee pursuing a state statutory remedy for retaliation arising from the

employee’s complaints pertaining to alleged age and race discrimination may only

recover under the TCHRA and he could not bring a claim under the Whistleblower

Act. 259 S.W.3d at 149. Although Lopez did not invoke Chapter 21 in his

pleadings, the Court held that Chapter 21 was the employee’s exclusive remedy

because it provided a more “specific and tailored” remedy. Id. at 156. The Court

explained that “the touchstone is not availment, but availability of [Chapter 21]

remedies.” Id. at 151. Because Lopez’s claims could have been raised under

Chapter 21, the court found that a plea to the jurisdiction should have been granted.

Id. at 156. The Court noted that to hold otherwise would allow a plaintiff to skirt

      3
       The statute of limitations for an action for breach of contract or fraud is four
years from the day the action accrues. See Tex. Civ. Prac. & Rem. Code Ann.
§ 16.004 (West 2002).
                                          15
the TCHRA’s detailed substantive and procedural provisions and would render the

limitations in the TCHRA utterly meaningless. Id. at 154.

      In Waffle House, Inc. v. Williams, Williams sued her employer, Waffle

House, Inc., for sexual harassment under the TCHRA and for common-law

negligent supervision and retention. 313 S.W.3d at 798. The jury found in favor of

Williams on each of her claims and Williams elected a recovery under common-

law which afforded her a greater monetary remedy. Id. The Second Court of

Appeals affirmed the judgment. Id. at 801. Waffle House sought review from the

Texas Supreme Court, arguing, among other things, that Williams’ negligent

supervision and retention claim should fail as a matter of law because the TCHRA

is the exclusive remedy for workplace sexual harassment. Id. at 801-02. The Texas

Supreme Court agreed and held that “[t]he gravamen of Williams’ complaint is

sexual discrimination in the form of a hostile or abusive work environment, a

wrong the TCHRA was specifically designed to remedy.” Id. at 809. The Court

pointed out that this holding was consistent with its earlier holding in Lopez:

      As in Lopez, Williams’ common-law claim “falls squarely within the
      [T]CHRA’s ambit,” that Act “implements a comprehensive
      administrative regime, and affords carefully constructed remedies,”
      and allowing the alternative remedy “would render the limitations in
      the [T]CHRA utterly meaningless” and “defeat the [T]CHRA’s
      comprehensive statutory scheme.” As with permitting a
      Whistleblower Act claim, permitting a common-law claim for
      negligent supervision and retention would allow plaintiffs to pick and
                                         16
      choose among “irreconcilable and inconsistent regimes,” one specific
      and one more general, the result being that “employees would have
      little incentive to submit to the administrative process the Legislature
      considered necessary to help remedy discrimination in the workplace.
      Such a result would frustrate clear legislative intent.” While Lopez
      considered whether another statutory remedy would thwart the
      TCHRA, similar concerns exist if a plaintiff is permitted to pursue a
      common-law remedy in lieu of the Legislature’s tailored and balanced
      statutory scheme.

Id. at 807-08 (footnotes omitted).

      In Pruitt v. International Association of Fire Fighters, Michael Pruitt filed

suit against the International Association of Fire Fighters labor union, a local

affiliate association, and the certain officers and directors of the local association,

after his employment was terminated. 366 S.W.3d at 742. Pruitt was the first

African-American Fire Chief in Longview, Texas. Id. Pruitt alleged causes of

action for “[i]ntentional[l]y [a]iding or [a]betting [d]iscrimination,” intentional

infliction of emotional distress, . . . breach of fiduciary duty, and tortious

interference with employment relations.” Id. Pruitt’s claims were dismissed for

lack of subject matter jurisdiction. Id. The trial court ruled, in part, that Pruitt’s

common-law claims were pre-empted by Chapter 21. Id. Pruitt appealed and

argued that the trial court erred in dismissing his claims of intentional infliction of

emotional distress, breach of fiduciary duty, and tortious interference with

employment relationship and that, as an alternative to dismissal, the trial court

                                          17
should have allowed him to amend the complaint by removing references to the

alleged discrimination. Id. at 742, 747.

      The Texarkana Court of Appeals concluded that the facts giving rise to

Pruitt’s common-law causes of action were “inextricably intertwined” with the

facts giving rise to complaints that could have been resolved through Chapter 21’s

administrative procedures. Id. at 749-50. The Court stated that “a racial

discrimination complaint was the gravamen of Pruitt’s action and that allowing his

complaint to proceed without meeting the requirement of exhaustion of remedies

would ‘collide with the elaborately crafted statutory scheme.’” Id. at 750.

      According to appellants, their claims are “nothing like the claims” in Pruitt

or Waffle House that were found to be pre-empted by the TCHRA. Appellants

assert on appeal that their claims were for breach of contract and fraudulent

inducement and that the only reference to race was in the background facts of their

Original Petition. They maintain that at the hearing on the plea to the jurisdiction

as well as in “numerous briefs to the court,” they explained to the trial court that

there was “no race discrimination claim or discrimination retaliation claim.”

Appellants argue that appellees “mischaracterized Appellants’ claims as

discrimination claims in disguise[,]” and that appellants’ affidavits confirmed

“they never thought there was racial discrimination and never alleged that there

                                           18
was.” According to appellants, appellees relied on appellants’ charges of

discrimination filed with the EEOC and the prior lawsuit as a basis for their plea to

the jurisdiction, and appellants claim they “abandoned that cause of action, and

abandoned any claim or factual allegation of discrimination.”

      The trial court concluded that plaintiffs’ common-law causes of action were

“inextricably intertwined” with the facts giving rise to complaints that could have

been resolved through Chapter 21. When the gravamen of a complaint is

discrimination or retaliation and when common-law causes of action are based on

the same course of conduct giving rise to a discrimination and retaliation claim,

Chapter 21 will bar the claims. See Waffle House, 313 S.W.3d at 802-09. The

gravamen of a claim is “‘[t]he substantial point or essence of a claim, grievance, or

complaint.’” Pruitt, 366 S.W.3d at 748 (quoting Black’s Law Dictionary 770 (9th

ed. 2009)). We examine the trial court’s grant of a plea to the jurisdiction de novo.

If the complained-of acts constitute a statutory violation of Chapter 21, those acts

cannot also serve as the basis of an independent common-law claim. See id. (citing

Waffle House, 313 S.W.3d at 813). “This is because Chapter 21 is pre-emptive

when the actions forming the complained-of torts are entwined with the

complained-of discrimination.” Id. (citing Waffle House, 313 S.W.3d at 799).




                                         19
        Appellants’ Original Petition included the following paragraphs referencing

race:

               9.    Woods is an African American female who worked at
        CISSET from May 7, 2002 to April 30, 2010. At the time of her
        termination she was employed as the Program Coordinator at
        CISSET.
               10. Prater is an African American female who worked for
        CISSET from around July 1999 to April 26, 2010. At the time of her
        termination she was employed as a Campus Director.
               ....
               12. Of the 29 employees at CISSET[,] all where [sic] African
        American except for Newton, Jennifer Stubbs (“Stubbs”), Janay
        Watson, and Etta Helveston (“Helveston”).
               ....
               24. Newton would regularly refer to the African American
        female employees by the historically racist-tinged word “gal” and she
        would notably not use this word with non-African employees.
               25. Newton also in a thinly veiled racial reference
        commented to Woods that, “she was not used to this culture.” When
        Woods asked what culture she was referring to, Newton indicated the
        employees in the room which were all African American.
               ....
               27. . . . [O]n October 19, 2009, Woods requested a meeting
        with Newton, planning to raise issues about the importance of the
        chain of command, Woods’ position as Program Coordinator, staff
        matters, paying for certain social work licenses, obtaining assistance
        with data entry, moving employees from campus to campus, and
        Newton’s offensive practice of calling African-American females
        “gal.” Newton apologized to Woods for calling her “Gal,” stating that
        “it must be a difference in cultural backgrounds.”

        Appellees filed their plea to the jurisdiction asserting that plaintiffs’ claims

are “preempted by Chapter 21 of the Texas Labor Code and must be dismissed.”

Defendants attached, as exhibits to their plea to the jurisdiction, Plaintiffs’ Original
                                           20
Petition in the current case, plaintiffs’ petitions from the former suit that had been

dismissed for want of prosecution, the charges of discrimination filed by Woods

and Prater and presented to the EEOC, and the dismissal order from the earlier suit.

Appellants subsequently filed Plaintiffs’ First Amended Original Petition, the live

pleading at the time the trial court heard appellees’ plea to the jurisdiction, which

omitted some language in the Original Petition but still included the following:

             9.     Woods is an African American female who worked at
      CISSET from May 7, 2002 to April 30, 2010. At the time of her
      termination she was employed as the Program Coordinator at
      CISSET.
             10. Prater is an African American female who worked for
      CISSET from around July 1999 to April 26, 2010. At the time of her
      termination she was employed as a Campus Director.
             ....
             12. Of the 29 employees at CISSET, all where [sic] African
      American with the exception of Newton, Jennifer Stubbs (“Stubbs”),
      Janay Watson, and Etta Helveston (“Helveston”).
             ....
             28. On October 19, 2009, Woods requested a meeting with
      Newton, planning to raise issues about the importance of the chain of
      command, Woods’ position as Program Coordinator, staff matters,
      CISSET reimbursing employees for certain social work licenses,
      obtaining assistance with data entry, moving employees from campus
      to campus, and Newton’s offensive practice of calling African-
      American females “gal.” Newton apologized to Woods for calling her
      “Gal,” stating that “it must be a difference in cultural backgrounds.”
      Still, Newton was clearly agitated with Woods[’] challenge of the
      racially tinged term.

      At the hearing on the plea to the jurisdiction, the following exchange

occurred:
                                         21
       THE COURT: . . . [H]asn’t the Supreme Court basically said
that if it -- if the gravamen that would give rise to the common law
cause of action is covered by Chapter 21, then it has to be brought
pursuant to Chapter 21, haven’t they?

       [Plaintiffs’ Counsel]: Well, that’s been said; but that’s not
applicable here because the lawsuit facts that we have here, while they
involve a lot of the same patterns and facts of the events that occurred,
do not involve the same legal principles.
       ....
       The causes of action are not the same. . . . [W]hen the case was
filed as a . . . Chapter 21 or a discrimination case in the court next
door, it was filed there because of the fact that it was -- it was filed
under that theory because it was not perceived at that time exactly
how much influence or what was handled -- what was the weight and
whether or not the motive of Newton and her board member
counterpart, who are white, had influence over the board.
       ...
       . . . The gravamen of the anti-retaliation claim, the contract
claim, is not racial discrimination. It’s not -- it’s not retaliation for
opposing discriminatory employment practices.
       . . . This is not a discrimination claim. Doesn’t arise out of
discrimination. It was -- that was realized, and we filed within the
four-year statute of limitations both of these actions. We’re timely.
The gravamen is not the same, your Honor.
       ...
       [T]here is no statutorily related discriminatory employment
practice which was opposed by my clients. It had to do entirely with
the -- the management relationship between certain members of the
administration of CISSET and my clients and had nothing to do with
statutorily-regulated issues of national origin, age, race, gender or
retaliation under the code.
       ...
       THE COURT: Well, before we go any further, why in the
background facts is it significant that Prater and Woods are African-
American and that of the 29 employees all were African-American
with the exception of one, two, three, four? I mean, that to me --

                                   22
             [Plaintiffs’ Counsel]: That’s a fact. That’s a fact of life, your
      Honor. That was part of the facts of when I -- it’s not mentioned with
      relevance to any cited cause of action, and no cause of action refers to
      that. That just happens to be the way I draft facts, background facts;
      and that was simply brought over. There is no rule that I know of in
      pleading that requires me to be race blind. In fact, I found that -- that
      it gives a better feel for the facts if something is -- to everybody who
      looks at it -- just to know who the players were. . . .

      Defense counsel urged the trial court to compare the allegations in the

pleadings in the case pending in the 136th Judicial District Court to plaintiffs’

EEOC charges wherein they alleged discrimination on the basis of race and

retaliation. According to defense counsel, “it’s just impossible to separate the race

discrimination facts and these now alleged policy or breach of contract type facts.

They’re just merely recasting their discrimination claims because . . . the statute of

limitation has passed.”

      On appeal, appellants assert that Perez v. Living Centers-Devcon, Inc., 963

S.W.2d 870, 871 (Tex. App.—San Antonio 1998, pet. denied), supports their

contention that they are not precluded from asserting their common-law claims. In

Perez, the San Antonio Court of Appeals held that the Perez’s decision to not file a

complaint with the Texas Commission on Human Rights did not preclude Perez

from pursuing common law causes of action that arose from the same facts as her

TCHRA claim. 963 S.W.2d at 875. We note that Perez was decided before Lopez,

Waffle House, and Pruitt, and we find the facts in Perez to be distinguishable from
                                         23
the facts in the present case. Woods and Prater, unlike Perez, previously filed a suit

under the TCHRA, failed to timely pursue their TCHRA claims in court, and then

refiled a suit recasting their claims as common-law claims with a four-year statute

of limitations to avoid the two-year statute of limitations which barred their

TCHRA claims.

      Applying a de novo review and considering the evidence necessary to

resolve the jurisdictional issue raised, the gravamen of the plaintiffs’ claims in the

present case is retaliation and discrimination controlled by the exclusive remedies

under Chapter 21. We note that although plaintiffs amended their petition (after the

hearing on the plea to the jurisdiction but with permission from the trial court), and

also attached affidavits wherein plaintiffs attested that they “never believed or

claimed in any internal grievance at CISSET that [they were] being subjected to

race, or gender, or national origin, or age—any illegal Title VII discrimination by

CISSET[,]” the documents they signed under penalties of perjury with the TWC

and EEOC state otherwise. In the documents Woods and Prater filed with the TWC

and EEOC, each of them stated that they believed they had been subject to racial

discrimination and retaliation for assisting with or filing grievances. Where the

gravamen of a plaintiff’s case is TCHRA-covered discrimination or retaliation,

Chapter 21 forecloses common law theories predicated on the same underlying

                                         24
facts. The facts giving rise to plaintiffs’ breach of contract and fraud claims in the

present lawsuit are inextricably intertwined with the facts giving rise to their

complaints of race discrimination and retaliation in their prior EEOC Charges of

Discrimination and their prior lawsuit. See Waffle House, 313 S.W.3d at 804;

Pruitt, 366 S.W.3d at 750-51. The trial court did not err in granting appellees’ plea

to the jurisdiction and dismissing appellants’ claims against CISSET. Issue one is

overruled.

      In their second issue, appellants maintain that, because the TCHRA creates a

cause of action only against an employer and not against supervisors or individual

employees, the claims against Newton should not have been dismissed,

irrespective of the preemption issue. In Plaintiffs’ Second Amended Original

Petition, the live petition at the time of the dismissal, plaintiffs pled that

“Defendant, Karen Newton, is an individual who at all times relevant to this suit

has been the Executive Director of CISSET” and that “Newton was not the

employer of Plaintiffs.” Plaintiffs filed their suit for “Breach of Contract by

CISSET” and “Fraud by CISSET and Newton.”4



      4
       Although plaintiffs’ allege in their Second Amended Original Petition that
“Defendants” breached contracts with the plaintiffs, plaintiffs state in their reply
brief on appeal that they “did not attempt to assert a breach of contract claim
against Newton individually[.]”
                                         25
      “It is well established in Texas that an individual cannot be held personally

liable under the TCHRA.” Winters v. Chubb & Son, Inc., 132 S.W.3d 568, 580

(Tex. App.—Houston [14th Dist.] 2004, no pet.); Jenkins v. Guardian Indus.

Corp., 16 S.W.3d 431, 439 (Tex. App.—Waco 2000, pet. denied) (“[S]upervisors

and managers are not liable in their individual capacities for alleged acts of

discrimination under the TCHRA.”). The TCHRA does not create a cause of action

against supervisors or individual employees for an unlawful employment practice.

City of Austin v. Gifford, 824 S.W.2d 735, 742 (Tex. App.—Austin 1992, no writ).

      A plaintiff may not recast her claim in the language of another cause of

action to avoid limitations or compliance with mandatory statutes or to circumvent

existing case law contrary to the plaintiff’s position. See generally Earle v. Ratliff,

998 S.W.2d 882, 893 (Tex. 1999) (essence of plaintiff’s claim was that defendant

was negligent by not conforming to the applicable standard of care despite labeling

claims as DTPA causes of action); In re Kimball Hill Homes Tex., Inc., 969

S.W.2d 522, 526 (Tex. App.—Houston [14th Dist.] 1998, orig. proceeding) (nature

of claim controls and plaintiff cannot, by artful pleading, recast claim to avoid

adverse effect of statute). The TCHRA affords public employees like Woods and

Prater “a specific and tailored anti-retaliation remedy.” Lopez, 259 S.W.3d at 156.

The purposes and policies embodied in the TCHRA would be “thwarted” if Woods

                                          26
and Prater could simply reframe their disputes as a fraud or breach of contract

claim to “sidestep” the requirements of the TCHRA. Id. at 155. We conclude that

the trial court properly dismissed plaintiffs’ claims against CISSET and Newton.

Issue two is overruled. We affirm the trial court’s judgment granting defendants’

plea to the jurisdiction and dismissing their claims with prejudice.

      AFFIRMED.


                                                     _________________________
                                                        LEANNE JOHNSON
                                                              Justice
Submitted on October 15, 2014
Opinion Delivered May 21, 2015

Before McKeithen, C.J., Horton and Johnson, JJ.




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