      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                        ON REHEARING


                                       NO. 03-07-00497-CV



                                    George Lueck, Appellant

                                                 v.

             State of Texas and Texas Department of Transportation, Appellees


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 261ST JUDICIAL DISTRICT
      NO. D-1-GN-05-004022, HONORABLE SCOTT H. JENKINS, JUDGE PRESIDING



                                           OPINION


               Having sua sponte withdrawn our opinion and judgment of November 13, 2009, we

substitute the following opinion in place of the earlier one.

               Appellant George Lueck filed suit against his former employer, the State of Texas and

the Texas Department of Transportation (collectively, the “Department”), for gender-based

employment discrimination. The Department filed a plea to the jurisdiction, asserting that sovereign

immunity and Lueck’s untimeliness and failure to exhaust administrative remedies barred his claims.

See Tex. Lab. Code Ann. § 21.202(a) (West 2006) (providing that claimant must file administrative

complaint within 180 days of allegedly discriminatory employment action). The trial court granted

the Department’s plea to the jurisdiction and dismissed Lueck’s suit. On appeal, Lueck asserts that

the trial court erred in granting the Department’s plea to the jurisdiction because the statutory
requirement to file an administrative complaint within 180 days does not implicate the trial court’s

subject-matter jurisdiction. We will affirm the trial court’s dismissal order.


                                         BACKGROUND

               In November 2003, Lueck was employed as the assistant director of traffic analysis

in the Department’s planning and programming division. According to his first amended petition,

he was discharged on November 12, 2003 for gender-motivated reasons in violation of the Texas

Commission on Human Rights Act, the relevant portions of which are now codified in chapter 21

of the labor code. See Labor Code §§ 21.001-.556.1 Lueck alleged that he was dismissed along with

two other employees, both women, when those employees committed misconduct. Because the

Department feared a gender discrimination suit would be brought by the female employees, Lueck

asserted, the Department “fabricated excuses” to discharge him as well. He further alleged that after

he was discharged, the Department realized that “there had been no reasonable basis to discharge

him in the first place,” but decided that, “since [Lueck] was a male, it was not a good idea to rehire

him.” Lueck pleaded that, “on more than one occasion,” the Department made the decision not to




       1
          In 1983, the Texas legislature created the Texas Commission on Human Rights through
the Texas Commission on Human Rights Act (“TCHRA”) in an effort to correlate state law with
federal law in the area of employment discrimination. See Schroeder v. Texas Iron Works, Inc.,
813 S.W.2d 483, 485 (Tex. 1991). One of the TCHRA’s purposes was to create a Texas deferral
agency so that the investigation and resolution of employment discrimination complaints could be
handled at the state level. See id. (citing 42 U.S.C. § 2000e-5(c) and 29 U.S.C. § 633). The
legislature has since abolished the Commission on Human Rights and transferred its functions to the
Texas Workforce Commission civil rights division. See Labor Code § 21.0015. For convenience
we will continue to refer to chapter 21 of the labor code as the TCHRA.

                                                  2
reinstate or rehire him because of his gender; he did not, however, identify the date or dates on which

these decisions were allegedly made.

               On June 21, 2005, Lueck filed his first complaint of sex discrimination with the civil

rights division of the Texas Workforce Commission (the “Commission”). In the space on his intake

questionnaire asking for “Date (month, day, & year) of the Last Incident of Discrimination,” Lueck

responded, “Ongoing.” His description of the employment harm states: “Mr. Lueck was discharged

and the employer refuses to rehire or compensate him.” In explaining how the adverse employment

action was discriminatory, Lueck wrote that the Department “feared two disciplined females would

sue [it] unless a token male was sacrificed.” On September 20, 2005, the Commission sent Lueck

a “Dismissal Notice” stating that the information he provided “is not sufficient to file a claim of

employment discrimination under the Texas Commission on Human Rights Act.”2

               In November 2005, Lueck filed suit against the Department under sections 106.001

and 106.002 of the civil practice and remedies code, asking the court to find that (1) he was

improperly terminated and refused reinstatement or re-employment because of his gender, (2) the

reasons given for his termination were pretexts for discrimination against him, (3) he was entitled

to reinstatement and re-employment, and (4) he was entitled to entry of a permanent injunction

prohibiting continued discrimination against him in his efforts to obtain reinstatement and

employment. Lueck also sought an injunction reinstating him to employment with the Department,




       2
           The record also contains a charge form that Lueck filed with the Equal Employment
Opportunity Commission (“EEOC”) on December 20, 2005. On this form, Lueck indicated that the
date the discrimination occurred was September 7, 2004, the last date that he applied for positions
at the Department.

                                                  3
backpay, wages from the time of judgment until his reinstatement, compensatory damages, pre- and

post-judgment interest, attorney’s fees, and costs.

               The Department filed a plea to the jurisdiction, arguing that Lueck’s employment-

discrimination claims were barred by sovereign immunity and that he did not timely exhaust his

administrative remedies by filing his complaint within 180 days of the allegedly discriminatory

employment action. See Labor Code § 21.202(a) (“A complaint under this subchapter must be filed

not later than the 180th day after the date the alleged unlawful employment practice occurred.”). In

so arguing, the Department relied on the jurisdictional facts asserted in Lueck’s petition that he was

discharged on November 12, 2003, and that he filed his administrative complaint with the

Commission 587 days later, on June 21, 2005. The Department also attached evidence to its plea

in response to Lueck’s claim that, because of the Department’s continued refusal to rehire him, the

discrimination was “ongoing” after his November 12 discharge. This evidence included: Lueck’s

deposition, in which he stated that he applied for four different jobs with the Department in July and

August 2004; (2) documents describing the Department’s policy of filling positions within 60 days

of the job’s closing date; and (3) evidence that the job postings to which Lueck applied had all

expired by October 2, 2004—i.e., more than 180 days before he filed his administrative complaint

with the Commission. The Department further argued in its plea that Lueck’s allegations under

chapter 106 of the civil practice and remedies code were barred by sovereign immunity and that the

180-day filing requirement applied to those claims as well.




                                                  4
                After a hearing, at which Lueck’s attorney conceded that Lueck had not complied

with the 180-day requirement in the statute, the trial court granted the Department’s plea to the

jurisdiction. Lueck appeals.


                                     STANDARD OF REVIEW

                In Texas, sovereign immunity deprives a trial court of subject-matter jurisdiction for

lawsuits in which the state or certain governmental units have been sued unless the state consents

to suit. Texas Parks & Wildlife Dep’t v. Miranda, 133 S.W.3d 217, 224 (Tex. 2004). The TCHRA

provides a limited waiver of sovereign immunity when a governmental unit has committed

employment discrimination on the basis of race, color, disability, religion, sex, national origin, or

age, or when a governmental entity has retaliated or discriminated against a person who engaged in

certain protected activities. See Labor Code §§ 21.002(8)(D), .051, .254 (West 2006); Mission

Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653, 660 (Tex. 2008); Texas Dep’t of Criminal

Justice v. Cooke, 149 S.W.3d 700, 704 (Tex. App.—Austin 2004, no pet.). Sovereign immunity

from suit defeats a trial court’s subject-matter jurisdiction and is therefore properly asserted in a plea

to the jurisdiction. Miranda, 133 S.W.3d at 225-26.

                Whether a court has subject-matter jurisdiction and whether a plaintiff has pleaded

facts that affirmatively demonstrate subject-matter jurisdiction are questions of law that we review

de novo. Id. at 226. In deciding a plea to the jurisdiction, we are not to weigh the merits of the

plaintiff’s claims but are to consider the plaintiff’s pleadings, construed in the plaintiff’s favor, and

evidence pertinent to the jurisdictional inquiry. Id. at 227-28; County of Cameron v. Brown,

80 S.W.3d 549, 555 (Tex. 2002).

                                                    5
               In this case, the jurisdictional inquiry turns on whether, for the Department’s

sovereign immunity from suit to have been waived, Lueck was required to have filed his

administrative complaint with the Commission not later than 180 days after the allegedly unlawful

employment practice occurred. The Department asserts that Lueck’s pleadings and its own

undisputed jurisdictional evidence establish that he failed to do so and that this failure

jurisdictionally bars his claims. On appeal, Lueck does not challenge the Department’s jurisdictional

evidence regarding the relevant dates but argues instead that the 180-day rule does not implicate the

trial court’s jurisdiction and, by extension, the Department’s immunity from suit. In a case such

as this, in which the jurisdictional facts are undisputed, the court makes the jurisdictional

determination as a matter of law based on those undisputed facts. Miranda, 133 S.W.3d at 227-28;

University of Tex. v. Amezquita, No. 03-06-00606-CV, 2009 WL 1563533, at *1 (Tex. App.—Austin

June 4, 2009, no pet.) (mem. op.). We review that determination de novo. Id.

               To determine whether a statutory requirement is jurisdictional, we apply statutory

interpretation principles. City of DeSoto v. White, 288 S.W.3d 389, 394 (Tex. 2009). In so doing,

our goal is to ascertain legislative intent by examining the statute’s plain language. Id. We review

this statutory-interpretation question de novo. Id.


                                          DISCUSSION

               In a single issue on appeal, Lueck asserts that the trial court erred in granting the

Department’s plea to the jurisdiction and dismissing his employment-discrimination claims for lack

of subject-matter jurisdiction.




                                                 6
               As a preliminary matter, we note that Lueck’s pleadings in this case state that he was

bringing his claims “[p]ursuant to” sections 106.001 and 106.002 of the civil practice and remedies

code. This Court has held—and recently reaffirmed—that chapter 106 of the civil practice and

remedies code does not comprehend employment-discrimination claims. See Wright v. Texas

Comm’n on Human Rights, No. 03-03-00710-CV, 2005 WL 1787428, at *2 (Tex. App.—Austin

July 27, 2005, pet. dism’d) (mem. op.); see also University of Tex. v. Poindexter, 306 S.W.3d 798,

813 (Tex. App.—Austin 2009, no pet.). We again endorse this “longstanding and proper reading”

of the statute and hold that the trial court lacked jurisdiction to hear any employment-discrimination

claims brought pursuant to chapter 106 of the civil practice and remedies code. See Poindexter,

306 S.W.3d at 813 (quoting Wright, 2005 WL 1787428, at *2).

               Nonetheless, because Lueck also asserted in his first amended petition that

the Department’s decision to discharge him was made “in violation of the TCHRA,” we will

liberally construe his pleadings as asserting claims under chapter 21 of the labor code as well. Under

chapter 21, an employer commits an unlawful employment practice if it discharges or discriminates

in any other manner against an individual in connection with the terms, conditions, or privileges of

employment because of the employee’s sex. See Labor Code § 21.051. Because the definition of

“employer” in chapter 21 includes state agencies such as the Department, see id. § 21.002(8)(D), the

statute has been interpreted as providing a limited waiver of sovereign immunity when a

governmental unit has committed employment discrimination, see Garcia, 253 S.W.3d at 660;

Cooke, 149 S.W.3d at 704. The Department argues, however, that Lueck’s failure to comply with

the procedural requirements contained in section 21.202 of the labor code meant that its immunity



                                                  7
from suit had not been waived, and therefore the trial court correctly determined that it had no

jurisdiction over the suit. See Garcia, 253 S.W.3d at 660 (“[T]he Legislature . . . has consented to

suits brought under the TCHRA, provided the procedures outlined in the statute have been met.”

(Emphasis added.)). Relatedly, the Department urges that Lueck’s failure to timely exhaust

his administrative remedies under chapter 21 deprived the court of subject-matter jurisdiction over

his suit.

               Without regard to whether the claim-filing requirement in section 21.202 is

jurisdictional, it is undisputed here that the requirement is mandatory and that the Department

timely raised the issue of Lueck’s failure to comply with it. Cf. In re United Servs. Auto. Ass’n,

307 S.W.3d 299, 307 (Tex. 2010) (“[A] statutory requirement commanding action, even if

it is not jurisdictional, remains mandatory.”); University of Tex. Sw. Med. Ctr. v. Loutzenhiser,

140 S.W.3d 351, 359 (Tex. 2004) (“The failure of a non-jurisdictional requirement mandated by

statute may result in the loss of a claim, but that failure must be timely asserted and compliance can

be waived.”). The parties join issue, however, on the question of whether the requirement is a

jurisdictional prerequisite to suit or merely a requirement that is subject to estoppel and equitable

tolling. In that regard, Lueck argues that he should be given the opportunity to present evidence that

the Department concealed “the true, discriminatory reason it discharged [him],” which he could not

have discovered “until more than 180 days had run” from the date of any allegedly discriminatory

employment actions taken against him.

               Chapter 21 provides that a person claiming to be aggrieved by an unlawful

employment practice must file a complaint with the Commission. Labor Code § 21.201(a); see



                                                  8
Schroeder v. Texas Iron Works, Inc., 813 S.W.2d 483, 487-88 (Tex. 1991) (act establishes “a

comprehensive administrative review system”). The statute further provides:


       (a)     A complaint under this subchapter must be filed not later than the 180th day
               after the date the alleged unlawful employment practice occurred.

       (b)     The commission shall dismiss an untimely complaint.


Labor Code § 21.202(a), (b).

               The Texas Supreme Court has frequently characterized the 21.202 deadline as

“mandatory and jurisdictional.” See Specialty Retailers, Inc. v. Demoranville, 933 S.W.2d 490, 492

(Tex. 1996); Schroeder, 813 S.W.2d at 486; see also Johnson & Johnson Med., Inc. v. Sanchez,

924 S.W.3d 925, 929 n.3 (Tex. 1996). Following these decisions, this Court and the other Texas

courts of appeals that have addressed the issue have consistently held that a plaintiff’s failure to

comply with the 180-day filing requirement deprives the trial court of subject-matter jurisdiction

over employment-discrimination claims.3 Lueck argues, however, that the jurisdictional holdings


       3
         See, e.g., Texas Dep’t of Pub. Safety v. Alexander, 300 S.W.3d 62, 70 (Tex. App.—Austin
2009, pet. filed); Tijerina v. Texas Alcoholic Beverage Comm’n, No. 03-06-00427-CV,
2009 WL 2059312, at *3 (Tex. App.—Austin July 14, 2009, no pet.) (mem. op.); University of Tex.
v. Poindexter, 306 S.W.3d 798, 813 (Tex. App.—Austin 2009, no pet.); Olivarez v. University of
Tex., No. 03-05-00781-CV, 2009 WL 1423929, at *3 (Tex. App.—Austin May 21, 2009, no pet.)
(mem. op.); Klebe v. University of Tex. Sys., No. 03-05-00527-CV, 2007 WL 2214344, at *2
(Tex. App.—Austin July 31, 2007, no pet.) (mem. op.); Austin Indep. Sch. Dist. v. Lowery,
212 S.W.3d 827, 831 (Tex. App.—Austin 2006, pet. denied); Texas Dep’t of Protective
& Regulatory Servs. v. Lynn, No. 03-04-00635-CV, 2005 WL 1991809, at *4 (Tex. App.—Austin
Aug. 19, 2005, pet. denied) (mem. op.); Texas Parks & Wildlife Dep’t v. Dearing, 150 S.W.3d 452,
458 (Tex. App.—Austin 2004, pet. denied).

     See also Bartosh v. Sam Houston State Univ., 259 S.W.3d 317, 321 & n.5 (Tex.
App.—Texarkana 2008, pet. denied); Ashcroft v. HEPC-Anatole, Inc., 244 S.W.3d 649, 651 (Tex.

                                                 9
in Specialty Retailers and Schroeder are no longer viable in light of subsequent Texas Supreme

Court decisions that have altered the analysis used to determine whether a statutory prerequisite to

suit is jurisdictional. See, e.g., Dubai Petrol. Co. v. Kazi, 12 S.W.3d 71 (Tex. 2000). He further

argues that the proper construction of the provisions of chapter 21 of the labor code is governed by

federal decisions that have interpreted analogous claim-filing provisions in Title VII of the Civil

Rights Act to be non-jurisdictional. Finally, he asserts that the legislature did not intend chapter 21

of the labor code to require an exhaustion of the administrative remedies and procedures set forth

therein. We will address each argument in turn.


In re United Services Automobile Association

               After we issued our original opinion and judgment in this case, the Texas Supreme

Court decided In re United Services Automobile Association. That case did not address the 180-day

deadline contained in section 21.202, but instead considered whether the two-year statute of

limitations for filing suit in an employment-discrimination action, codified in section 21.256 of the

labor code, is a jurisdictional prerequisite to suit. See 307 S.W.3d at 305-10. In holding that it is




App.—Dallas 2008, no pet.); Texas Dep’t of Criminal Justice v. Young, No. 09-07-635-CV,
2008 WL 4425542, at *5 (Tex. App.—Beaumont Oct. 2, 2008, no pet.) (mem. op.); Del Mar Coll.
Dist. v. Vela, 218 S.W.3d 856, 860 (Tex. App.—Corpus Christi 2007, no pet.); Davis v. Autonation
USA Corp., 226 S.W.3d 487, 491 (Tex. App.—Houston [1st Dist.] 2006, no pet.); Texas Tech Univ.
v. Finley, 223 S.W.3d 510, 513 (Tex. App.—Amarillo 2006, no pet.); El Paso County v. Navarrete,
194 S.W.3d 677, 681-82 (Tex. App.—El Paso 2006, pet. denied); Russell-Stanley, L.P. v. Rice,
131 S.W.3d 510, 513 (Tex. App.—Waco 2004, pet. denied); Cooper-Day v. RME Petrol. Co.,
121 S.W.3d 78, 83 (Tex. App.—Fort Worth 2003, pet. denied); Czerwinski v. University of Tex.
Health Sci. Ctr., 116 S.W.3d 119, 121 (Tex. App.—Houston [14th Dist.] 2002, pet. denied);
Guevara v. H.E. Butt Grocery Co., 82 S.W.3d 550, 552 (Tex. App.—San Antonio 2002, pet. denied)
(all concluding that failure to comply with section 21.202 of labor code is jurisdictional defect).

                                                  10
not, the USAA court examined the cases on which Schroeder and Specialty Retailers had relied in

determining that all filing periods under the TCHRA are jurisdictional. Id. at 305-06. The court

acknowledged that the support for the “mandatory and jurisdictional” language in Schroeder could

be traced back to Mingus v. Wadley, 285 S.W. 1084 (Tex. 1926), which was overruled by Dubai

Petroleum.4 The USAA court explicitly overruled a footnote in Schroeder stating that the section

21.256 statute of limitations is jurisdictional.5 In re USAA, 307 S.W.3d at 310.




        4
           As we explained in our original opinion in this case, Dubai signaled the end of the
long-standing rule in Texas that a plaintiff needed to strictly comply with all statutory prerequisites
to suit in order to confer jurisdiction on the courts for all statutory causes of action. See Dubai
Petrol. Co. v. Kazi, 12 S.W.3d 71, 76 (Tex. 2000). In so holding, the Dubai court expressed concern
that, because a judgment will never be considered final if the court lacked subject-matter jurisdiction,
such a conceptualization “opens the way to making judgments vulnerable to delayed attack for a
variety of irregularities that perhaps better ought to be sealed in a judgment.” Id. Based on this
policy concern and without engaging in a detailed examination of the statute at issue, the court
overruled Mingus v. Wadley, 285 S.W. 1084 (Tex. 1926), to the extent that decision had
characterized a plaintiff’s failure to establish a statutory prerequisite to suit as a “jurisdictional”
defect. Id.; see generally Marnie A. McCormick, Dubai or Not Dubai? That is the Question, 2009
Advanced Texas Administrative Law Seminar, Tab 10, at 1-7.

        The statements in Specialty Retailers and Schroeder that the 180-day filing requirement is
jurisdictional can be traced back to Mingus and another Texas Supreme Court case, Grounds v. Tolar
Independent School District, 707 S.W.2d 889 (Tex. 1986). Specialty Retailers, the most recent
supreme court case holding that the TCHRA’s 180-day filing requirement is mandatory and
jurisdictional, see Specialty Retailers, Inc. v. Demoranville, 933 S.W.2d 490, 492 (Tex. 1996), relied
solely on Schroeder, see 813 S.W.2d at 486, which in turn cited a Third Court of Appeals case. That
Third Court case, Green v. Aluminum Co., cited Mingus and Grounds for the now-overruled
proposition that, in a suit asserting statutory causes of action, the failure to comply with any statutory
prerequisite deprives the court of subject-matter jurisdiction. See 760 S.W.2d 378, 380 (Tex.
App.—Austin 1988, no writ).
        5
           The court further noted that Schroeder was “a case that dealt primarily with ‘whether
exhaustion of administrative remedies is a prerequisite to bringing a civil action for age
discrimination in employment,’” and that the legal character of the section 21.256 deadline was not
at issue in Schroeder. In re United Servs. Auto. Ass’n, 307 S.W.3d 299, 308 (Tex. 2010).

                                                   11
               The court in USAA went on to describe the analysis that courts should conduct in

determining whether a statutory provision poses a jurisdictional requirement, beginning by

considering the statutory language and presuming that the legislature did not intend to make any

provision jurisdictional, absent clear legislative intent to the contrary. Id. at 307. The statute’s

purpose must also be considered, along with the consequences that result from each interpretation.

Id. at 308-09. This approach mirrors the analysis that the supreme court has employed in other

post-Dubai cases, in keeping with the predominant trend to view most statutory prerequisites as

mandatory but not jurisdictional. See, e.g., City of DeSoto v. White, 288 S.W.3d 389, 393 (Tex.

2009); Igal v. Brightstar Info. Tech. Group, Inc., 250 S.W.3d 78, 86 (Tex. 2008); Loutzenhiser,

140 S.W.3d at 354.


Federal Employment-Discrimination Law

               The USAA court also paid particular attention to the federal cases interpreting

analogous federal statutes, noting that “[t]he TCHRA was enacted ‘to provide for the execution of

the policies of Title VII of the Civil Rights Act of 1964.’” 307 S.W.3d at 308 (quoting Labor Code

§ 21.001(1)). In holding that section 21.256 does not pose a jurisdictional bar to bringing suit under

the TCHRA, the USAA court found it persuasive that every federal circuit to have considered the

issue had reached the same conclusion with respect to the time period for filing suit under Title VII.

See id. at 309. The court also cited a United States Supreme Court decision, Zipes v. Trans World

Airlines, Inc., 455 U.S. 385 (1982), holding that the timely filing of a complaint with the Equal

Employment Opportunity Commission is not a jurisdictional prerequisite to filing suit in federal




                                                 12
court under Title VII and instead operates as a waivable statute of limitations. See id. at 308-09

(citing Zipes, 455 U.S. at 393-95).6

               Seizing on this recent decision and other cases in which the Texas Supreme Court

has approved of citing federal case law as authority in interpreting the TCHRA, see, e.g.,

Hoffmann-La Roche, Inc. v. Zeltwanger, 144 S.W.3d 438, 445-46 (Tex. 2004), Lueck argues that

federal law “controls” our interpretation of the Texas statute and compels us to conclude that section

21.202, like its federal counterpart, is non-jurisdictional. His argument is two-fold. First, Lueck

argues that because the legislature intended the TCHRA to “provide for the execution of the policies

of Title VII,” see Labor Code § 21.001(1), and because, under federal law, the timely filing of the

administrative complaint is not jurisdictional, see Zipes, 455 U.S. at 393, the first purpose of the

TCHRA would be contravened were we to construe section 21.202 as a jurisdictional requirement.

Second, he argues that the Commission, in order to qualify as a deferral agency,7 must meet “the

criteria under 42 U.S.C. Section 2000e-5(c),” see Labor Code § 21.001(2), meaning that it must

follow the procedures in the EEOC Compliance Manual—including treating the 180-day filing

directive as a non-jurisdictional matter that can be waived or equitably tolled.




       6
          The administrative filing requirement in Title VII provides that “[a] charge under this
section shall be filed within one hundred and eighty days after the alleged unlawful employment
practice occurred,” or, in cases such as this where the person aggrieved has initially instituted
proceedings with a state or local agency, within 300 days after the alleged unlawful employment
practice occurred. See 42 U.S.C. § 2000e-5(e)(1).
       7
         The Commission was created “to serve as Texas’s ‘deferral agency,’ i.e., one to which the
EEOC would defer so the investigation and resolution of employment discrimination complaints
could be handled at the state rather than federal level.” Dearing, 240 S.W.3d at 351-52.

                                                 13
               Lueck has cited no authority, however, nor have we found any, suggesting that states

enacting their own employment-discrimination laws are constrained to adopt procedural

requirements that are identical to those in Title VII. In most cases, the Texas courts of appeals that

have addressed arguments similar to Lueck’s have summarily dismissed them. See, e.g., El Paso

County v. Navarette, 194 S.W.3d 677, 682 & n.2 (Tex. App.—El Paso 2006, pet. denied) (“While

we may look to federal law, we find that Texas courts have construed the state law provisions to be

mandatory and jurisdictional and as such, we decline to be guided by federal law on this issue.”);

Guevara v. H.E. Butt Grocery Co., 82 S.W.3d 550, 552-53 (Tex. App.—San Antonio 2002, pet.

denied) (“Guevara urges this Court to adopt the doctrine of equitable tolling . . . [citing Zipes]. We

decline to do so.”). And federal courts entertaining simultaneous Title VII and TCHRA claims have

accepted that the filing requirement is not jurisdictional as to federal employment-discrimination

claims but may indeed pose a jurisdictional bar to identical claims brought under the TCHRA. See,

e.g., Enguita v. Neoplan USA Corp., 390 F. Supp. 2d 616, 623 (S.D. Tex. 2005) (dismissing with

prejudice TCHRA claims as time-barred but allowing federal claims to proceed, noting that

“Title VII’s 300 day limitations period, as opposed to the TCHRA[’s filing period], is subject to

waiver, estoppel, and equitable tolling.”).

               But, as Lueck repeatedly asserts, there is an apparent tension in our case law as a

result of Texas courts’ recognizing that our legislature “intended to correlate state law with federal

law in employment discrimination cases,” Wal-Mart Stores, Inc. v. Canchola, 121 S.W.3d 735, 739

(Tex. 2003), while at the same time construing as jurisdictional a timeliness provision the federal

analogue for which is not construed as jurisdictional. The resolution of this issue, as we reasoned



                                                 14
in our original opinion, lies in the characterization of the TCHRA provisions as establishing a

mandatory administrative procedure that must first be exhausted before suit can be brought.


The TCHRA Requires Pre-Suit Exhaustion

               Despite Lueck’s arguments to the contrary, it is beyond serious dispute that the

TCHRA requires a complainant to first exhaust his administrative remedies before filing a civil

action. This was the primary holding in Schroeder, and it has not been overruled.8 The Texas

Supreme Court reaffirmed as recently as June 11, 2010, that “a TCHRA action requires an

exhaustion of administrative remedies that begins by filing a complaint with the Texas Workforce

Commission civil rights division.” Waffle House, Inc. v. Williams, No. 07-0205, 2010 WL 2331464,

at *5 (Tex. June 11, 2010). The Waffle House opinion cites Schroeder for the proposition that the

TCHRA’s complaint-filing, investigation, and alternative-dispute-resolution procedures “are an

essential feature of the statutory framework.” Id.

               It is also clear that the Texas Supreme Court treats the failure to exhaust the

TCHRA’s administrative remedies as a jurisdictional defect. See, e.g., City of Waco v. Lopez,

259 S.W.3d 147, 154 (Tex. 2008) (describing “unique and comprehensive provisions” established

in chapter 21 and concluding that noncompliance with Commission procedures “deprives courts of




       8
          The court in USAA was careful to distinguish Schroeder as “a case that dealt primarily with
‘whether exhaustion of administrative remedies is a prerequisite to bringing a civil action for age
discrimination in employment,’ [wherein] the legal character of the section 21.256 deadline was not
at issue.” In re USAA, 307 S.W.3d at 308. The only part of Schroeder that was actually overruled
is a footnote suggesting that the 21.256 deadline for filing suit is “mandatory and jurisdictional.”
Id. at 310. We find it necessary to point this out as Lueck repeatedly but mistakenly asserts in his
post-submission briefing that “Schroeder has been overruled.”

                                                 15
subject-matter jurisdiction” over employment-discrimination disputes); Hoffmann-La Roche, Inc.,

144 S.W.3d at 446 (“exhaustion of administrative remedies is a mandatory prerequisite to filing a

civil action alleging violations of the CHRA”); Austin v. Healthtrust, Inc., 967 S.W.2d 400, 403

(Tex. 1998) (listing section 21.202’s 180-day deadline for filing administrative complaint among

statutory schemes that “require exhaustion of administrative remedies before filing suit”).9

               The exhaustion doctrine likewise has deep roots in federal law. “The doctrine of

exhaustion of administrative remedies is well established in the jurisprudence of administrative law.”

Woodford v. Ngo, 548 U.S. 81, 88 (2006). “The doctrine provides ‘that no one is entitled to judicial

relief for a supposed or threatened injury until the prescribed administrative remedy has been

exhausted.’” Id. at 88-89 (quoting Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 50-51

(1938)). Exhaustion of administrative remedies serves two main purposes: “First, exhaustion

protects ‘administrative agency authority’” by giving an agency oversight over the programs it

administers and discouraging “‘disregard of the agency’s procedures.’” Id. at 89 (quoting McCarthy

v. Madigan, 503 U.S. 140, 145 (1992)). “Second, exhaustion promotes efficiency. Claims generally

can be resolved much more quickly and economically in proceedings before an agency than in




       9
         So have the Texas courts of appeals that have addressed the issue. See, e.g., Donna Indep.
Sch. Dist. v. Rodriguez, No. 13-09-00185-CV, 2009 WL 2962376, at *6-7 (Tex. App.—Corpus
Christi Sept. 17, 2009, no pet.) (mem. op.); Texas Dep’t of Criminal Justice v. Young,
No. 09-07-00635-CV, 2008 WL 4425542, at *5 (Tex. App.—Beaumont Oct. 2, 2008, no pet.)
(mem. op.); Davis v. Autonation USA Corp., 226 S.W.3d 487, 491 (Tex. App.—Houston [1st Dist.]
2006, no pet.); Austin Indep. Sch. Dist. v. Lowery, 212 S.W.3d 827, 833 (Tex. App.—Austin 2006,
pet. denied); Texas Dep’t of Protective & Regulatory Servs. v. Lynn, No. 03-04-00635-CV,
2005 WL 1991809, at *4 (Tex. App.—Austin Aug. 19, 2005, pet. denied) (mem. op.); City of
Houston v. Fletcher, 63 S.W.3d 920, 922 (Tex. App.—Houston [14th Dist.] 2002, pet. denied).

                                                 16
litigation,” and, in some cases, “claims are settled at the administrative level” or the agency

proceedings will succeed in convincing the losing party not to pursue the matter in court. Id.

               In Texas, the “[f]ailure to exhaust administrative remedies is truly jurisdictional in

nature: it deprives courts of subject-matter jurisdiction over a claim.” Texas Dep’t of Protective

& Regulatory Servs. v. Lynn, No. 03-04-00635-CV, 2005 WL 1991809, at *4 (Tex. App.—Austin

Aug. 19, 2005, pet. denied) (mem. op.); see Thomas v. Long, 207 S.W.3d 334, 340-42 (Tex. 2006)

(holding failure to exhaust administrative remedies deprives trial court of subject-matter

jurisdiction). Thus, as we concluded in Lynn, “unless and until the supreme court departs from its

view in Schroeder that the Commission on Human Rights Act requires exhaustion of remedies, we

will continue to treat the 180-day filing requirement as ‘mandatory and jurisdictional.’” Id. (quoting

Specialty Retailers, 933 S.W.2d at 492). Although it has had many opportunities to do so, the

supreme court has not abandoned this view. As this Court is bound by the decisions of the higher

court, Lueck’s argument that Schroeder’s exhaustion holding is “aberrant” and caused by a

“misreading” of federal law is unavailing.

               Nonetheless, in an effort to better explain the rationale for our holding, we will

attempt to address his arguments. Lueck first points out that the cases on which Schroeder relies for

the proposition that “[c]onstruing the CHRA to require exhaustion is consistent with . . . Title VII”

have since been criticized by the U.S. Supreme Court for characterizing the timely filing of a charge

of discrimination with the EEOC as a “jurisdictional prerequisite.” See 813 S.W.2d at 487 (citing

Alexander v. Gardner-Denver Co., 415 U.S. 36, 47 (1974); McDonnell Douglas Corp. v. Green,




                                                 17
411 U.S. 792, 798 (1973)); but see Zipes, 455 U.S. at 393-95 & n.6 (criticizing this language in

Alexander and McDonnell Douglas).

               It is true that Schroeder, relying on cases that no longer accurately reflect the U.S.

Supreme Court’s view of the legal character of Title VII filing deadlines, understood administrative

exhaustion to be a “policy” embodied in Title VII that the TCHRA should reflect. We think it is an

open question whether the overall statutory scheme established by Title VII is one that requires the

exhaustion of administrative remedies, but the Supreme Court has recently indicated that it is not.

See Woodford, 548 U.S. at 98 (noting in dicta that section 2000e-5(e) of Title VII makes no reference

to the concept of exhaustion and is not “in any sense an exhaustion provision”). The Fifth Circuit,

on the other hand, has recognized that exhaustion under Title VII is required, but its panels are in

disagreement over whether exhaustion “is merely a prerequisite to suit, and thus subject to waiver

and estoppel, or whether it is a requirement that implicates subject matter jurisdiction.” Pacheco

v. Mineta, 448 F.3d 783, 788 n.7 (5th Cir. 2006), cert. denied 549 U.S. 888.10

               But the Texas Supreme Court’s reasons for continuing to characterize the TCHRA

as a statutory scheme that requires exhaustion of administrative remedies are as valid today as they

were when Schroeder was decided. Its exhaustion holding can be derived, first and foremost, from




       10
            Another federal circuit court has held that “administrative exhaustion requirements
under Title VII are not jurisdictional” but that “substantial compliance with the presentment
of discrimination complaints to an appropriate administrative agency is a jurisdictional
prerequisite,” Sommatino v. United States, 255 F.3d 704, 708 (9th Cir. 2001), and yet another has
affirmatively declared that pre-suit exhaustion is jurisdictional, see Shikles v. Sprint/United Mgmt.
Co., 426 F.3d 1304, 1317 (10th Cir. 2005) (“Unlike many other circuits, we have held that a
plaintiff’s exhaustion of his or her administrative remedies is a jurisdictional prerequisite to suit
under Title VII—not merely a condition precedent to suit.”).

                                                 18
the language of the TCHRA. See Lopez, 259 S.W.3d at 153 (holding that courts, in construing

provisions of TCHRA, must be guided by intent of legislature as indicated by plain language of

statute). Section 21.202(b) states that “[t]he Commission shall dismiss an untimely complaint,” see

Labor Code § 21.202(b) (emphasis added). Thus, the Commission has no discretion to waive

compliance with the requirement that the administrative complaint be timely filed. Instead, the

legislature has mandated that the Commission dismiss an untimely complaint without considering

reasons why it might have been filed late, thereby bringing to an end the administrative process and

all the statutory procedures for investigation, arbitration, and conciliation.11 In other words, under

the statutory scheme of the TCHRA, a late filing of the administrative complaint has exactly the

same effect as no filing at all, because an untimely complaint is not routed through the administrative

process as the legislature intended it to be.

               Thus, subsection (b) evinces the legislature’s intent to make the timeliness of the

administrative complaint part of the mandatory, pre-suit exhaustion scheme. By providing that

failure to comply with section 21.202 results in the dismissal of the complaint, the legislature has


       11
           Cf. Igal v. Brightstar Info. Tech. Group, Inc., 250 S.W.3d 78, 85 (Tex. 2008) (comparing
requirements that are jurisdictional and those that are subject to estoppel, waiver, and equitable
tolling). In Igal, a case on which Lueck heavily relies, the statute at issue was a filing-limitations
provision in chapter 61 of the labor code, which governs wage claims. See id. at 84-85. The Igal
court ultimately determined that the chapter 61 provision was not intended to be jurisdictional. See
id. at 86. At the time that case was decided, however, the chapter 61 provision did not contain
language similar to that in section 21.202(b) requiring the Commission to dismiss untimely claims.
We note also that the legislature has since amended chapter 61 to make the 180-day filing deadline
for wage claims jurisdictional, see Labor Code § 61.051(c) (West Supp. 2009), and to require the
dismissal of untimely wage claims for lack of jurisdiction, see id. § 61.052(b-1), effectively
overruling Igal. We further note that the Igal court expressly distinguished Specialty Retailers and
Schroeder, noting that those cases dealt with a “different statutory scheme.” See Igal, 250 S.W.3d
at 83 n.5.

                                                  19
effectively declared that those who fail to file their complaints timely are precluded from exhausting

their administrative remedies. See Labor Code § 21.202(b); Brooks William Conover, III,

Jurisdictional and Procedural Issues Under the Texas Commission on Human Rights Act, 47 Baylor

L. Rev. 683, 692-93 (1995) (“The TCHRA creates a unique scheme imposing administrative

prerequisites before a private suit may be brought by a person within a protected class. Only after

completing all of the administrative prerequisites in a timely fashion does a complainant exhaust the

administrative process . . . .”).12

                Lueck suggests that we assign too much significance to subsection (b) and the fact

that noncompliance results in the mandatory dismissal of the complaint by the Commission. See

Labor Code § 21.202(b). He urges that, rather than “destroy jurisdiction,” this provision is what

makes jurisdiction in the trial court possible because suit may be filed “only after a required

‘dismissal’ or its equivalent (passage of 180 days without the [Commission’s] resolving the

complaint) has been obtained.” We disagree. Lueck’s interpretation would render the chapter 21

exhaustion scheme “wholly ineffective.” Cf. Woodford, 548 U.S. at 95. As the Supreme Court has

recognized in the context of a similar administrative exhaustion scheme, “The benefits of exhaustion

can be realized only if the [administrative agency] system is given a fair opportunity to consider the

grievance. The . . . system will not have such an opportunity unless the grievant complies with the

system’s critical procedural rules.” Id. As a result, noncompliance with fundamental administrative

requirements must carry with it a sanction, which serves to deter complainants from bypassing the


        12
          We also think it significant that Title VII contains no similar provision requiring the
EEOC to dismiss untimely complaints, suggesting that the same consequence does not necessarily
follow from a Title VII claimant’s failure to timely file his administrative complaint.

                                                 20
chapter 21 administrative procedures and proceeding directly to district court. Cf. id. (noting that,

were it otherwise, “a prisoner wishing to bypass available administrative remedies [required by the

Prison Litigation Reform Act, 42 U.S.C. § 1997e, et seq.,] could simply file a late grievance without

providing any reason for failing to file on time. If the prison then rejects the grievance as untimely,

the prisoner could proceed directly to federal court.”). Under Lueck’s proposed construction,

however, a complainant could wait a decade or more before filing his administrative complaint and

then, after the Commission dismissed the complaint as required by section 21.202(b), could proceed

directly to state district court.

                Lueck further argues that the TCHRA cannot require exhaustion of administrative

remedies because the text of the statute fails to establish that the legislature intended to confer

exclusive jurisdiction on the Commission to resolve employment-discrimination disputes. His

argument is addressed to the principle that the purpose of an exhaustion-of-remedies requirement

is to ensure that the appropriate body adjudicates the dispute, which is a “hallmark of a jurisdictional

statute.” University of Tex. Sw. Med. Ctr. v. Loutzenhiser, 140 S.W.3d 351, 361 (Tex. 2004) (citing

Essenburg v. Dallas County, 988 S.W.2d 188, 189 (Tex. 1988) (per curiam)). The legislature

decides that an administrative body is the appropriate place to resolve an issue when it establishes

an administrative procedure for that purpose. Strayhorn v. Lexington Ins. Co., 128 S.W.3d 772, 780

(Tex. App.—Austin 2004), aff’d, 209 S.W.3d 83 (Tex. 2006).

                Contrary to Lueck’s assertions, however, the legislature has established an

administrative procedure in chapter 21 of the labor code that allows the Commission to receive,

investigate, and attempt to resolve employment-discrimination disputes. See generally Labor Code



                                                  21
§§ 21.003-.210 (listing power and duties of Commission, describing complaint procedure, and

authorizing Commission to investigate complaints). Specifically, the Commission has the power

to file civil actions to effectuate the purposes of the anti-discrimination statute, to compel witnesses

to testify, and to order the production of records, documents, and other evidence to investigate

alleged violations of the chapter. See id. § 21.003(a)(3)-(4). The administrative-claim requirement

of section 21.202 is integral to this comprehensive scheme, in contrast to the kinds of stand-alone

presentment or notice-of-suit requirements that have been held to be non-jurisdictional. See

Loutzenhiser, 140 S.W.3d at 361-62 (“A requirement of presentment merely gives a governmental

unit an opportunity to decide for itself whether to pay a claim.”); see also Essenburg, 988 S.W.2d

at 188-89 (same).

               That the administrative remedy prescribed by the legislature does not provide for the

final adjudication of a complainant’s claims, which Lueck suggests is essential for us to determine

that exhaustion of administrative remedies is jurisdictional, is not dispositive. On the contrary, we

believe exhaustion here is designed to promote the twin objectives of (1) protecting the

Commission’s authority by investing it with the power to review and intervene in claims arising

under the Act that it administers, and (2) promoting efficiency by encouraging the nonjudicial

resolution of claims. See Woodford, 548 U.S. at 89 (explaining purposes of administrative

exhaustion).

               The Texas Supreme Court has clearly and unequivocally stated that the TCHRA

requires exhaustion of administrative remedies before suit, and it is well established in Texas that

the failure to exhaust before filing suit deprives the trial court of jurisdiction. In light of the



                                                  22
foregoing, we conclude that the timely filing requirement contained in section 21.202 of the labor

code is part of an administrative process that must be exhausted before filing suit for employment

discrimination. Unless a party has exhausted this requirement, the trial court lacks subject-matter

jurisdiction over his suit. See Thomas, 207 S.W.3d at 340.


                                          CONCLUSION

               Because Lueck’s failure to timely file his administrative complaint with the

Commission deprived the trial court of subject-matter jurisdiction over his claims, we affirm the

trial court’s order granting the Department’s plea to the jurisdiction.




                                               J. Woodfin Jones, Chief Justice

Before Chief Justice Jones, Justices Puryear and Pemberton

Affirmed on Rehearing

Filed: July 16, 2010




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