                              NUMBER 13-09-00185-CV

                             COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                      CORPUS CHRISTI - EDINBURG


DONNA INDEPENDENT SCHOOL DISTRICT,                                              Appellant,

                                             v.

MARIA CONCEPCION RODRIGUEZ,                                                      Appellee.


                On appeal from the County Court at Law No. 6
                         of Hidalgo County, Texas.


               DISSENTING MEMORANDUM OPINION

                Before Justices Rodriguez, Garza, and Vela
             Dissenting Memorandum Opinion by Justice Vela

       I dissent from the majority’s opinion only with respect to the holding that the trial

court did not err in denying Donna ISD’s plea to the jurisdiction as it related to Rodriguez’s

April 5, 2004 pay raise. That claim, if there is one, is untimely because the pay raise was

not referenced in her complaint and is, in fact, no different from the claims previously
asserted in the September 16, 2003 grievance. Rodriguez’s response to the plea to the

jurisdiction does not state or even suggest that she is complaining about the April 5, 2004

pay raise. In fact, the pay raise was brought up by counsel for the school district during

deposition.

       The majority correctly holds that the continuing violation doctrine does not apply to

her claims because she was alerted that “she was continually paid less than males in

equivalent positions because of her sex, age, and race,” but she did not file a claim within

180 days of the grievance. Yet, the majority holds that her complaint with regard to the pay

raise was timely even though it is the same claim—that she was paid less than her male

counterparts.

       As authority, the majority cites two cases for the proposition that a suit filed pursuant

to the TCHRA may be based upon claims made in the discrimination complaint, as well as

any factually related claims that could reasonably be expected to grow out of the

investigation of the charge. See Johnson v. Hoechst Celanese Corp., 127 S.W.3d 875,

878 (Tex. App.–Corpus Christi 2004, no pet); Thomas v. Clayton Williams Energy, Inc., 2

S.W.3d 734, 738 (Tex. App.–Houston [14th Dist.] 1999, no pet.). In Thomas, defendant

urged that plaintiff had not exhausted his administrative remedies with respect to a

retaliatory discharge claim. Id. at 738. The court held that the plaintiff’s retaliation claim

arose because the plaintiff filed a presumably timely complaint, and it was unnecessary for

plaintiff to file an additional complaint with regard to the retaliation claim that arose out of

the original complaint. Id. Here, Rodriguez presented no argument with regard to an




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untimely retaliation claim arising from a timely filed complaint.1 Johnson, on the other

hand, seems to employ the continuing violation theory. See Johnson, 127 S.W.3d at 779

(stating that Johnson indicated on the complaint that the discrimination was a continuing

action between October 1997 and April 1998).                       The majority correctly rejected the

application of that theory here, so Johnson does not support the majority’s holding.

        Thus, I respectfully dissent because the “pay raise” complaint is not different from

Rodriguez’s earlier complaint that she was discriminated against because she was paid

less that other male superintendents. Rodriguez filed her grievance on September 16,

2003, complaining of salary disparity.                At the latest, she was aware of the alleged

discriminatory practice of salary disparity on that date. She did not file suit, however, until

254 days later. The fact that on April 5, 2004, she felt there was continued disparity does

not revive her otherwise untimely claim. Pursuant to section 21.202 of the Texas Labor

Code, Rodriguez’s complaint of salary disparity was late. See TEX . LAB. CODE ANN . §

21.202 (Vernon 2006). The trial court should have dismissed the action for lack of

jurisdiction.



                                                                ROSE VELA
                                                                Justice


Dissenting Memorandum Opinion delivered and
filed this 17th day of September, 2009.




       1
           In fact, Rodriguez did not file a brief in this Court, so she actually m akes no argum ents on appeal.

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