                                   NO. 07-04-0068-CV

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL A

                                      MAY 24, 2005

                          ______________________________


                           JOHN W. BROOKS, APPELLANT

                                            V.

LUBBOCK COUNTY HOSPITAL D/B/A UNIVERSITY MEDICAL CENTER, APPELLEE

                        _________________________________


            FROM THE 237TH DISTRICT COURT OF LUBBOCK COUNTY;

               NO. 2002-518,848; HONORABLE SAM MEDINA, JUDGE

                         _______________________________

Before REAVIS and CAMPBELL, JJ.1


                               MEMORANDUM OPINION


       By this appeal, appellant John W. Brooks contends the trial court erred in

dismissing his action alleging racial discrimination against Lubbock County Hospital, d/b/a

University Medical Center, for lack of jurisdiction. We affirm.


      1
        Former Chief Justice Phil Johnson was on the panel that heard oral argument. He
did not participate in the decision. Tex. R. App. P. 41.1(b).
       Brooks, an African-American citizen of the United States, has been employed by

the hospital since February 1987. In 1996, Brooks became the manager of the Emergency

Center Business Office and held this position until September 2000 when he was demoted

to supervisor of commercial follow-up Patient Account Department. Brooks alleged that

before his demotion, he had applied for promotion to Director of Admitting and also

inquired about a promotion as Assistant Director of Admitting. By his pleadings, Brooks

alleged that the fact he did not have a college degree was given as the ostensible reason

he was not considered for the promotions. Brooks also alleged


       •      he was the victim of write-ups by Ms. Bullett beginning in July 2000;
       •      he was not given a bonus in January 2001 because of the
              discriminatory write-ups;
       •      although he applied for a promotion to resource Assistance
              Department in June 28, 2001, he was not selected for an interview;
       •      the ratio of African-Americans to whites working in the Patient
              Accounting Department is disproportionate from the number of
              African-American individuals qualified to perform some of the jobs in
              the department; and
       •      the hospital engages in discriminatory practices by failing to select
              qualified African-Americans for jobs in such department and has
              engaged in a pattern or practice of discrimination in failing to fill
              positions in the Patient Accounting Department with qualified African-
              American individuals.


He concludes the hospital unlawfully discriminated against him contrary to section 21.051

of the Texas Labor Code. By its plea to the jurisdiction, the hospital alleged Brooks failed

to exhaust administrative remedies; thus, the trial court did not have subject matter

jurisdiction to hear the case. See §21.201. Brooks did not file an answer or response to



                                             2
the hospital’s plea to jurisdiction. Following a hearing on the motion to dismiss, the trial

court signed an order on November 21, 2003, dismissing the action for want of jurisdiction.

Brooks’s motion for new trial by which he alleged compliance with the requirements of

section 21.201 was sufficient under the relation back doctrine was overruled by operation

of law.


          By his only issue, Brooks contends the trial court erred in dismissing his case for

lack of subject matter jurisdiction based upon a failure to exhaust administrative remedies

or to timely file a charge of discrimination where he timely (within the 180 day limitations

period) sent a letter voicing his concerns of racial discrimination to the Equal Employment

Opportunity Commission such that, under the relation back doctrine, the untimely (outside

the 180 day limitations period) filing of his formal complaint with the Equal Employment

Opportunity Commission/Texas Commission on Human Rights (EEOC/TCHR) will date

back to the date of the letter. We disagree.


          Subject matter jurisdiction of a suit alleging discrimination by an employee under

sections 21.201(a) and 21.202(a) of the Texas Labor Code requires the timely submission

of a grievance to the Commission on Human Rights within 180 days of the alleged

misconduct. Vincent v. West Texas State University, 895 S.W.2d 469, 473 (Tex.App.--

Amarillo 1995, no writ), (citing Schroeder v. Texas Iron Works, Inc., 813 S.W.2d 483, 486

(Tex. 1991)). Under section 21.201(b), an administrative review is commenced by a

person filing a written complaint, made under oath, with the commission. The complaint

must state:


                                               3
       (1) that an unlawful employment practice has been committed;

       (2) the facts on which the complaint is based, including the date, place, and
       circumstances of the alleged unlawful employment practice; and

       (3) facts sufficient to enable the commission to identify the respondent.


§ 21.201(c). “Respondent” means the person charged in a complaint filed under this

chapter and may include an employer, employment agency, labor organization, or joint

labor-management committee that controls an apprenticeship or other training or retraining

program, including an on-the-job training program. See § 21.002(13). Subsections (e) and

(f) authorize the amendment of a complaint to cure technical defects or omissions and the

allegation of additional facts.


       On October 10, 2000, Brooks wrote the EEOC as follows:


       I know you are a very busy person, but I have some concerns that my rights
       have been violated at University Medical Center. I am inclosing some
       material for you to review if you would and maybe I could visit with you about
       my concerns. Attached you will find Memos and documents, that I feel is
       [sic] unjust. I would like your professional opinion on what my options are
       before I make any decision on this matter. I still have to support my family.


       Brooks acknowledges that a discrimination complainant must be filed with the

EEOC/TCHR within 180 days; however, by his argument, he contends his October 10

letter should be deemed sufficient to confer jurisdiction on the trial court.


       Even if the letter is sufficient to constitute a charge of unlawful employment practice,

a question we need not decide, it does not provide the underlying facts of the complaint



                                              4
nor the date thereof and does not name the respondent nor provide sufficient facts to

identify the respondent.2 While the five alleged acts of unlawful employment practice set

out in the pleadings may be sufficient to survive a special exception or similar challenge

to the pleadings, we conclude the October 10 letter was not sufficient to confer subject

matter jurisdiction on the trial court. Brooks’s sole issue is overruled.


       We need not address the relation back doctrine presented by Brooks in his motion

for new trial because of his reliance on the October 10 letter. Additionally, he does not

present an issue asserting trial court error in denying the motion for new trial. Moreover,

because the relation back doctrine was not raised by Brooks at the first hearing, it could

not be considered as grounds for a new trial. See Mushinski v. Mushinski, 621 S.W.2d

669, 670-71 (Tex.Civ.App.--Waco 1981, no writ); Puryear v. Red River Authority of Texas,

383 S.W.2d 818, 821 (Tex.Civ.App.--Amarillo 1964, writ ref’d n.r.e.).


       Accordingly, the judgment of the trial court is affirmed.


                                                  Per Curiam




       2
       The memos and documents referred to in the letter do not appear in the record
before us.

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