                            NUMBER 13-12-00625-CV

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI – EDINBURG

SHARYLAND INDEPENDENT
SCHOOL DISTRICT,                                                            Appellant,
                                           v.

ROMELIA FARIAS MOLINA,                                                      Appellee.


                  On appeal from the 92nd District Court of
                         Hidalgo County, Texas.


                         MEMORANDUM OPINION
               Before Justices Rodriguez, Garza, and Perkes
                  Memorandum Opinion by Justice Garza
      Appellee, Romelia Farias Molina, sued appellant, Sharyland Independent School

District (SISD), alleging retaliation and discrimination based on her disability. See TEX.

LAB. CODE ANN. §§ 21.051, 21.055 (West 2006). SISD filed a plea to the jurisdiction,

asserting that the trial court lacked jurisdiction because Molina failed to exhaust her
administrative remedies pursuant to the Texas Education Code. See TEX. EDUC. CODE

ANN. § 21.207 (West Supp. 2011), § 21.209 (West 2006). The trial court initially granted

SISD’s plea to the jurisdiction. However, after a hearing, the trial court granted Molina’s

motion for new trial, effectively denying SISD’s plea to the jurisdiction. We hold that

Molina was not required to exhaust her remedies under the education code and

therefore affirm the trial court’s order.

                                       I. BACKGROUND

       Molina was employed as an assistant principal at SISD. In the spring of 2011,

she was notified that her contract would not be renewed because of a reduction in force.

Molina filed a charge of discrimination alleging retaliation and discrimination on the

basis of her disability. After she received a right-to-sue letter from the Texas Workforce

Commission—Civil Rights Division (TWC), she filed suit against SISD, alleging

retaliation and discrimination on the basis of her disability under the labor code. See

TEX. LAB. CODE ANN. §§ 21.051, 21.055. It is undisputed that Molina did not pursue a

hearing with SISD’s Board of Trustees or an appeal with the Commissioner of

Education.

       SISD filed a plea to the jurisdiction, asserting that the trial court lacked

jurisdiction over the suit because Molina failed to exhaust her administrative remedies

under the Term Contract Nonrenewal Act. See TEX. EDUC. CODE ANN. § 21.201–.213

(West 2006 & Supp. 2011). The trial court’s order granting Molina’s motion for new trial

effectively denied SISD’s plea to the jurisdiction. This interlocutory appeal followed.

See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014 (a)(8) (West Supp. 2011).




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                      II. STANDARD OF REVIEW AND APPLICABLE LAW

   A. Plea to the Jurisdiction

       A plea questioning the trial court's subject-matter jurisdiction raises a question of

law that we review de novo. See Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d

217, 226 (Tex. 2004). We focus first on the pleadings to determine whether the facts

pled affirmatively demonstrate that subject-matter jurisdiction exists. Id. We construe

the pleadings liberally in favor of the plaintiff and look to the pleader’s intent. Id. A plea

should not be granted if a fact issue is presented as to the court’s jurisdiction, but if the

pleadings affirmatively demonstrate an incurable jurisdictional defect, then the plea to

the jurisdiction must be granted. Id. at 227–28. If the pleadings are insufficient to

establish jurisdiction but do not affirmatively demonstrate an incurable defect, the

plaintiff should be afforded the opportunity to replead. Id. at 226–27. In performing its

review, an appellate court does not look to the merits of the case but considers only the

pleadings and evidence relevant to the jurisdictional inquiry. Id. at 227.

   B. Texas Labor Code

       Chapter 21 of the labor code, which is also known as the Commission on Human

Rights Act (CHRA), prohibits an employer from discharging or in any other way

discriminating against an employee because of the employee’s race, color, disability,

religion, sex, national origin, or age.    TEX. LAB. CODE ANN. § 21.051.         Specifically,

section 21.051 of the labor code provides the following:

              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



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                  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.

Id. The CHRA also prohibits employers from retaliating or discriminating against an

employee who: “(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.” Id. § 21.055.

       It is well settled that before suing under chapter 21, the complainant must

exhaust her administrative remedies. See City of Waco v. Lopez, 259 S.W.3d 147,

154–55 (Tex. 2008); Hoffmann–La Roche, Inc. v. Zeltwanger, 144 S.W.3d 438, 446

(Tex. 2004). To exhaust administrative remedies under chapter 21 of the labor code, a

plaintiff must:   (1) file a complaint with the TWC within 180 days of the alleged

discriminatory practice; (2) permit the TWC to dismiss the complaint or resolve it within

180 days before filing suit; and (3) file suit no later than two years after the complaint is

filed. TEX. LAB. CODE ANN. § 21.201–.202, .208, .256 (West 2006); Rice v. Russell–

Stanley, L.P., 131 S.W.3d 510, 513 (Tex. App.—Waco 2004, pet. denied).                  The

plaintiff's administrative remedies are exhausted by her entitlement to a right-to-sue

letter, which simultaneously ends the exclusive jurisdiction of the TWC.          Rice, 131

S.W.3d at 513. It is undisputed that Molina exhausted her administrative remedies

under the labor code.




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    C. Term Contract Nonrenewal Act (TCNA)

        The TCNA, found in chapter 21 of the Texas Education Code, provides an

administrative procedure that allows a person employed by a school district under a

term contract to seek judicial review of a district's decision not to renew the contract.

See TEX. EDUC. CODE ANN. §§ 21.207–.209; Ysleta Indep. Sch. Dist. v. Griego, 170

S.W.3d 792, 794–95 (Tex. App.—El Paso 2005, pet. denied). The TCNA requires an

employee who is aggrieved by the nonrenewal of a term contract to exhaust

administrative remedies before seeking redress in the courts. See TEX. EDUC. CODE

ANN. § 21.209; Brown v. Amarillo Indep. Sch. Dist., 190 S.W.3d 7, 10 (Tex. App.—

Amarillo 2005, no pet.). It is undisputed that Molina did not exhaust her administrative

remedies under the TCNA.

                                     III. DISCUSSION

        By a single issue, SISD contends the trial court erred in denying its plea to the

jurisdiction because Molina failed to exhaust her administrative remedies under the

TCNA before filing suit. SISD argues that, because part of Molina’s claim is that her

contract was not renewed, she was required to exhaust her administrative remedies

under the TCNA, and her failure to do so deprives the trial court of jurisdiction. Molina

responds that she was not required to exhaust her administrative remedies under the

TCNA because she pursued claims of retaliation and discrimination based on her

disability under the labor code.     Molina argues that because she exhausted her

administrative remedies under the labor code, the trial court had jurisdiction over her

suit.




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      Molina relies on Vela v. Waco Independent School District, 69 S.W.3d 695, 702

(Tex. App.—Waco 2002, pet. withdrawn) and Port Arthur Independent School District v.

Edwards, No. 09-11-628-CV, 2012 WL 489052 (Tex. App.—Beaumont Feb. 16, 2012,

no pet.) (mem. op.), in support of her argument. In Vela, the plaintiff sued the Waco

Independent School District (WISD) alleging that it discriminated against her on the

basis of ethnicity and sex when she was reassigned from her position as an elementary

school principal to a position in WISD’s central office. 69 S.W.3d at 697. As in the

present case, Vela filed a discrimination complaint and exhausted her administrative

remedies under the labor code.     See id.       WISD argued that Vela was required to

exhaust her remedies under both the labor code and the education code. See id. As

noted in Austin Independent School District v. Lowery, the Waco court:

      explicitly rejected the dual-exhaustion requirement, holding that it was
      unnecessary for a school district employee “to pursue two administrative
      schemes, one under the [labor code] and the other under the Education
      Code, before seeking relief in the courts.” The holding in Vela was
      predicated on the court's determinations that (1) unlike the education
      code, the [labor code] contains specific statutes that address
      discrimination by an employer; and (2) a school district employee's
      discrimination claim under the [labor code] does not pertain to the
      administration of school laws. Id. at 701.

212 S.W.3d 827, 832 (Tex. App.—Austin 2006, pet. denied), disapproved on other

grounds by Rusk State Hosp. v. Black, 392 S.W.3d 88 (Tex. 2012) (citations omitted);

see Larsen v. Santa Fe Indep. Sch. Dist., 296 S.W.3d 118, 130 n.12 (Tex. App.—

Houston [14th Dist.] 2009, pet. denied) (noting that the Vela court “held that the

[CHRA’s] provisions requiring exhaustion of administrative remedies described in the

statute itself trumped the Education Code and made it unnecessary for the plaintiff to




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exhaust the school district’s remedies; thus, the [CHRA] requires only exhaustion of the

administrative remedies outlined within the Act itself”).

       In Edwards, the Port Arthur Independent School District (PAISD) transferred the

plaintiff (Edwards) from a position as a principal to an administrative position. 2012 WL

489052, at *1.     After exhausting her administrative remedies under the labor code,

Edwards filed suit alleging discrimination and retaliation. Id. As in the present case,

PAISD filed a plea to the jurisdiction alleging that Edwards’s suit was barred because

she had not exhausted her administrative remedies under the education code. See id.

Relying, in part, on the reasoning in Vela and the supreme court’s ruling in City of Waco

v. Lopez, 259 S.W.3d 147, 151, 155 (Tex. 2008),1 the Edwards court found that, “it is

the Legislature’s intent that work-related discrimination claims that fall within the purview

of the CHRA be subject only to the administrative remedies in the [CHRA].”                      See

Edwards, 2012 WL 489052 at *5 (citing Vela, 69 S.W.3d at 702). The Edwards court

looked to Edwards’s pleadings, noting that she had alleged that her transfer was in

retaliation for her opposition to PAISD’s discriminatory practices, and that she had not

asserted a claim for breach of contract. See id. The court held that Edwards was not

required to exhaust her administrative remedies under the education code before filing

her suit. See id. at *6.

       We next turn to examine Molina’s pleadings. Molina’s pleadings state that she is

only pursuing claims under the labor code and is not pursuing claims under the

education code. She asserts that she has a disability, “a form of cerebral palsy which



       1
         In Lopez, the Texas Supreme Court held that the CHRA provided the exclusive state statutory
remedy for claims of discrimination and retaliation. City of Waco v. Lopez, 259 S.W.3d 147, 156 (Tex.
2008).

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affects major life activities such as walking, balancing, working and lifting.”                  Molina

alleges that SISD discriminated against her on the basis of her disability by:

        having her office secluded away from the principal when no one else is,
        being harassed for not signing documents requiring [her] to be physically
        doing things made very difficult by her disability, being passed up for
        interviews, using different tools to evaluate her, being relieved of important
        assistant principal duties, being informed that she would not be affected
        by the reduction in force (RIF) plan and in fact was, failure to promote and
        being the only administrator who was terminated.

She also claims that SISD retaliated against her because she raised the issue of

discrimination against her.

        We recognize that the plaintiffs in Vela and Edwards were transferred or

reassigned by their respective employers. See Vela, 69 S.W.3d at 697; Edwards, 2012

WL 489052, at *1. Because their employers did not fail to renew their contracts, the

TCNA was not applicable. See Vela, 69 S.W.3d at 697; Edwards, 2012 WL 489052, at

*1. Rather, in each case, the school district relied on section 7.057 of the education

code or its predecessor and argued that the plaintiff was required to exhaust her

administrative remedies.        See TEX. EDUC. CODE ANN. § 7.057 (West Supp. 2011).2

Claimants under both the TCNA and section 7.057 of the education code are required to

exhaust their administrative remedies before filing suit. See Larsen, 296 S.W.3d at 128

(“Texas courts hold that contractual school district employees must exhaust

administrative remedies found in the Education Code pursuant to either section 7.057

(a)(2)(B) or the Term Contract Nonrenewal Act.”).                 Accordingly, we do not see a




        2
            Section 7.057 of the education code grants the Commissioner of Education exclusive
jurisdiction over claims involving the “school laws of this state,” and over actions or decisions of any
school district board that violate “the school laws of this state” or any provision of a written contract
between the school district and its employee. See TEX. EDUC. CODE ANN. § 7.057 (West Supp. 2011).

                                                   8
significant distinction between the facts in Vela and Edwards and the present case and

conclude that the reasoning in those cases is dispositive of the issue in this appeal.

       SISD cites Nairn v. Killeen Independent School District, 366 S.W.3d 229, 248

(Tex. App.—El Paso 2012, no pet.), Griego, 170 S.W.3d at 797, and Brown, 190

S.W.3d at 10, in support of its position. None of these cases, however, involve plaintiffs

who asserted claims under the labor code and exhausted their administrative remedies

under the labor code. Accordingly, we find them to be distinguishable.

       Construing Molina’s pleadings liberally in her favor and looking to her intent, as

we must, see Miranda, 133 S.W.3d at 226, we conclude that Molina exhausted her

administrative remedies under the labor code and, following the Waco and Beaumont

courts, we conclude that she was not required to exhaust her administrative remedies

under the education code. See Vela, 69 S.W.3d at 702 (“[W]e conclude that the intent

of the CHRA is for Vela’s claim to be subject only to those administrative remedies in

the CHRA itself.”); Edwards, 2012 WL 489052, at *6 (holding that Edwards was not

required to exhaust remedies under the education code before filing suit).

                                     IV. CONCLUSION

       We overrule SISD’s sole issue in this interlocutory appeal and affirm the trial

court’s order.

                                                 DORI CONTRERAS GARZA,
                                                 Justice




Delivered and filed the
19th day of September, 2013.



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