                              NUMBER 13-09-00660-CV

                              COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                      CORPUS CHRISTI - EDINBURG


CITY OF CORPUS CHRISTI,                                                         Appellant,

                                              v.

LORA L. PORTELLA,                                                               Appellee.


                       On appeal from 94th District Court
                           of Nueces County, Texas.


                           MEMORANDUM OPINION

                Before Justices Yañez, Rodriguez, and Garza
                Memorandum Opinion by Justice Rodriguez

       Appellant City of Corpus Christi (the City) appeals from the trial court's denial of its

plea to the jurisdiction in a gender discrimination and retaliation case filed by appellee Lora

L. Portella. See TEX . LAB. CODE ANN . §§ 21.051, 21.055 (Vernon 2006). By one issue, the
City contends that the trial court erred in denying its plea because Portella failed to exhaust

her administrative remedies; thus, its governmental immunity was not waived. We affirm.

                                       I. BACKGROUND

       According to her petition, in June and July 2008, Portella complained to the City

about being subjected to harassment and gender discrimination by her male supervisor.

In October 2008, a citizen filed a complaint with the City alleging that she had seen Portella

publicly kissing and behaving inappropriately with a non-City employee during work-time

and by a City vehicle. The City investigated the citizen's complaint and on October 6,

2008, discharged Portella.

       After her discharge, Portella filed a charge of discrimination and retaliation with the

Equal Employment Opportunity Commission (EEOC) and the Texas Workforce

Commission (TWC).1 The EEOC sent a letter to Portella dated March 3, 2009, requesting

specific information regarding her allegations. The EEOC's letter provided the following:

       Pursuant to the Commission's procedural regulations under 29 CFR
       1601.18(b) and the EEOC Compliance Manual, Section 4.4, which require
       your cooperation in the conduct of its investigation, the Commission will
       dismiss your charge of employment discrimination for failure to cooperate
       and issue you a Notice of Right to Sue letter if you fail to provide the
       requested information by April 2, 2009.

According to the EEOC's March 3 letter, the City's response to the allegations raised by

Portella stated that her discharge was based on the City's investigation of a citizen's

October 2008 complaint. On March 24, 2009, the EEOC sent a second letter to Portella.

In that letter, the EEOC summarized the City's response and asked Portella to submit any



       1
         Pursuant to the worksharing agreem ent between the EEOC and the TW C, the charge was
investigated by the EEOC.

                                              2
new documentation in support of her position, including names and other information

regarding any rebuttal witnesses, "no later than April 3, 2009."

       In a letter dated April 8, 2009, and received by the EEOC on April 17, 2009—after

the deadlines set by the EEOC—Portella provided information requested in the EEOC's

March 3, 2009 letter. Portella filed no additional documentation or information in response

to the EEOC's March 24, 2009 letter.

       On April 15, 2009, the EEOC advised Portella that the Commission had determined

to dismiss her charge of employment discrimination. In relevant part, the EEOC's April 15

letter stated the following:

       Our review of your charge indicates that it is very unlikely that further
       investigation will establish a violation of the laws we enforce. The available
       evidence is insufficient to establish that your sex or retaliation were factors
       in your employment experiences. The available evidence was summarized
       in a March 24, 2009 Commission letter to you. You failed to provide a
       response to that letter. You also failed to provide the information requested
       in the Commission's March 3, 2009 letter to you. While not inherently
       controlling in our decision, we also note the lack of direct evidence of
       discrimination and the lack of witnesses who could provide specific
       information to support your claims of discrimination.

Enclosed with the letter was the EEOC's "Dismissal and Notice of Rights" form dated April

15, 2009. The EEOC explained that it dismissed Portella's claim and closed its file on the

charge because it was unable to resolve her complaint. The EEOC issued the following

determination:

       Based upon its investigation, the EEOC is unable to conclude that the
       information obtained establishes violations of the statutes. This does not
       certify that the respondent [the City] is in compliance with the statutes. No
       finding is made as to any other issues that might be construed as having
       been raised by this charge.

In addition, the EEOC informed Portella of her right to file a lawsuit against the City within

ninety days of her receipt of the notice.


                                              3
        On April 28, 2009, Portella filed suit against the City contending she was

discriminated against in violation of section 21.051 of the labor code. See id. § 21.051

(prohibiting discrimination based on race, color, disability, religion, national origin, age, or

sex). Portella also claimed the City retaliated against her for filing a complaint against her

supervisor by assigning her certain job duties and discharging her from her employment.

See id. § 21.055 (prohibiting employers from retaliating against their employees for

engaging in protected activities such as opposing a discriminatory practice, making a

charge, or filing a complaint). The City answered Portella's suit generally denying her claim

and raising, inter alia, the affirmative defense of governmental immunity.2

        The City then filed its plea to the jurisdiction based on immunity from suit and

exhaustion of administrative remedies. In response, Portella noted that the EEOC had

determined not that she failed to exhaust her administrative remedies, but only that it did

not know what happened and advised her of her right to file suit against the City. After the

City replied, the trial court denied the City's plea to the jurisdiction.3 This interlocutory

appeal followed. See TEX . CIV. PRAC . & REM . CODE ANN . § 51.014(a)(8) (Vernon 2008)




        2
          Governm ental im m unity protects political subdivisions of the State, while sovereign im m unity refers
to the State's im m unity from suit and liability. Tex. Tech Univ. Health Scis. Ctr. v. W ard, 280 S.W .3d 345, 348
(Tex. App.–Am arillo 2008, pet. denied) (citing W ichita Falls State Hosp. v. Taylor, 106 S.W .3d 692, 693 n.3
(Tex. 2003)).

        3
          Evidence subm itted by the parties included copies of the following: (1) page 3 of the City's
investigation report; (2) the EEOC's February 9, 2009 notice to the TW C that the EEOC had received
Portella's charge and would be investigating it; (3) an EEO C charge detail inquiry form with notes dated
Decem ber 17, 2008; (4) the EEOC's April 15, 2009 letter to Portella advising her, am ong other things, that the
EEOC had determ ined to dism iss her charge of em ploym ent discrim ination; (5) Portella's interrogatory
response providing the nam e of the friend she stopped to see on October 3, 2008; (6) the EEOC's March 3,
2009 letter to Portella requesting inform ation regarding her allegations; (7) the EEOC's March 24, 2009 letter
to Portella sum m arizing the City's response and requesting additional inform ation, if any; (8) Portella's April
8, 2009 response to the EEOC's March 3 letter; and (9) the EEOC's April 15, 2009 dism issal and notice of
rights docum ent inform ing Portella that the EEOC was closing its file and providing her notice of her right to
sue.

                                                        4
(allowing for interlocutory appeals from a ruling on a plea to the jurisdiction by a

governmental unit).

                                        II. STANDARD OF REVIEW

        We review a trial court's ruling on a plea to the jurisdiction under a de novo standard

of review. See Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex.

2004). The plaintiff bears the burden of alleging facts affirmatively demonstrating the trial

court's jurisdiction to hear a case. Id. We construe the pleadings liberally in favor of the

pleader, look to the pleader's intent, and accept as true the factual allegations in the

pleadings. Id. at 228; see City of San Antonio v. Butler, 131 S.W.3d 170, 174 (Tex.

App.–San Antonio 2004, pet. denied). If the governmental entity's plea to the jurisdiction

challenges the existence of jurisdictional facts, we consider relevant evidence submitted

by the parties when necessary to resolve the jurisdictional issues raised, as the trial court

is required to do. Miranda, 133 S.W.3d at 227; Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d

547, 554 (Tex. 2000).

                                              III. DISCUSSION

        By its sole issue, the City contends that the trial court erred in denying its plea to the

jurisdiction because Portella failed to fully exhaust her administrative remedies when she

refused to cooperate with the EEOC's investigation.4 The City asserts that because




        4
           S pecifically, the C ity asserts that P orte lla fa iled to cooperate w ith the E E O C by refusing to
provide the n a m e o f a n e y e w itn e ss to the O ctober 2008 incident and to otherw ise cooperate in the
E E O C 's inve stig a tio n .



                                                       5
Portella did not comply with the prerequisites to filing a suit under chapter 21 of the labor

code, the City has not waived governmental immunity.

       "The [Texas Commission on Human Rights Act (CHRA)] . . . establishes a

'comprehensive administrative review system,' under which the 'exhaustion of

administrative remedies is a mandatory prerequisite to filing a civil action alleging violations

of the CHRA.'" Hoffmann-La Roche, Inc. v. Zeltwanger, 144 S.W.3d 438, 446 (Tex. 2004)

(quoting Schroeder v. Tex. Iron Works, Inc., 813 S.W.2d 483, 485, 488 (Tex. 1991)). To

comply with the exhaustion requirement, an employee must (1) file a complaint with the

EEOC within 180 days of the alleged discriminatory act and (2) allow the EEOC to dismiss

the complaint or resolve the complaint within 180 days before filing suit.              Rice v.

Russell-Stanley, L.P., 131 S.W.3d 510, 513 (Tex. App. Waco 2004, pet. denied); see TEX .

LAB. CODE ANN . §§ 21.201-.202, 21.208 (Vernon 2006); see also Gallegos v. Johnson, No.

13-07-00603-CV, 2010 Tex. App. LEXIS 1330, at **37-38 (Tex. App.–Corpus Christi Feb.

25, 2010, no pet. h.) (mem. op.). A plaintiff's entitlement to a right-to-sue letter signals that

she has satisfied the exhaustion requirement. See Rice, 131 S.W.3d at 512 (holding that

"it is the entitlement to the right-to-sue letter that exhausts the complainant's administrative

remedies," not its possession); City of Houston v. Fletcher, 63 S.W.3d 920, 923 (Tex.

App.–Houston [14th Dist.] 2002, no pet.) (explaining that "[t]he statute certainly supports

an interpretation that the right-to-sue letter is notice of exhaustion, not actually part of

exhaustion"); see also Gallegos, 2010 Tex. App. LEXIS 1330, at *38. Additionally, the suit

must be filed no later than two years after the original complaint is filed. See TEX . LAB.




                                               6
CODE ANN . § 21.256 (Vernon 2006); Rice, 131 S.W.3d at 513; see also Gallegos, 2010

Tex. App. LEXIS 1330, at **37-38.

       The relevant evidence submitted by the parties in this case, see Miranda, 133

S.W.3d at 227; Blue, 34 S.W.3d at 554, establishes that the EEOC received, investigated,

and resolved Portella's timely-filed complaint. See Rice, 131 S.W.3d at 513. Portella

allowed the EEOC to resolve the complaint within the requisite time period before filing suit.

See id. Although Portella's written response was filed after the deadlines set by the EEOC

and was not considered as part of its investigation, the EEOC nonetheless made its

determination considering the evidence that was properly before it.           Based on that

evidence, the EEOC dismissed Portella's charge of employment discrimination. The right-

to-sue notice indicated that the EEOC had failed to resolve Portella's complaint. This

notice evidenced Portella's entitlement to the right-to-sue letter which, in effect, exhausted

her administrative remedies. See Rice, 131 S.W.3d at 512; Fletcher, 63 S.W.3d 923.

Finally, Portella filed her suit within two years after the complaint was filed. See TEX . LAB.

CODE ANN . § 21.256; Rice, 131 S.W.3d at 513.

       By its argument, the City is asserting that cooperation is required in order to comply

with the exhaustion of remedies requirement. The City relies on City of Waco v. Lopez.

259 S.W.3d 147, 149-50 (Tex. 2008). In Lopez, the plaintiff filed a whistleblower claim in

which he alleged that he was fired in retaliation for reporting race and age discrimination

against him. Id. Lopez did not, however, file a complaint with the CHRA. Id. Instead,

Lopez elected to characterize his claim as a whistleblower claim and bypass the

administrative process. Id. at 152-55. The supreme court concluded that the claim fell



                                              7
"squarely under the CHRA, which provide[d] [Lopez's] exclusive state statutory remedy,"

and that Lopez could "only recover if he satisfie[d] the requirements of the CHRA." Id. at

156. Because Lopez had "not pled a cause of action under the CHRA," had "not invoked

the procedures of the CHRA to remedy the alleged acts of retaliation and discrimination,"

and "the time limits for filing a charge or complaint pursuant to the procedures specified

in the CHRA [had] long since passed," the court concluded that Lopez had "failed to allege

a claim for which the City's governmental immunity [had] been waived." Id. Lopez

addressed the issue of whether a claimant could elect between the Human Rights and

Whistleblower Acts. See id. at 153-55. It did not address cooperation as a factor in

determining whether a claimant fails to exhaust her administrative remedies. Accordingly,

Lopez has no application in this instance.5

         Under the facts of this case, we conclude that Portella exhausted her administrative

remedies under the CHRA. Therefore, the trial court did not err in denying the City's plea

to the jurisdiction based on immunity from suit and exhaustion of remedies. We overrule

the City's sole issue.




         5
           The City also provides quotes from federal cases in support of its argum ent that cooperation should
be a factor to consider in a review of exhaustion of adm inistrative rem edies. See Shikles v. Sprint/United
Mgmt. Co., 426 F.3d 1304, 1314-15 (10th Cir. 2005) (holding that a private sector em ployee was required to
cooperate with the EEOC in order to exhaust his adm inistrative rem edies); but see Doe v. Oberweis Dairy,
456 F.3d 704, 709-12 (7th Cir. 2006), cert. denied, 549 U.S. 1278 (2007) (concluding that a charging party's
failure to cooperate with the EEOC's investigation did not block that investigation or a suit and noting that while
"[t]he Tenth Circuit [in Shikles] acknowledged the Suprem e Court's adm onition that no requirem ents beyond
those in the statute should be im posed . . . it im posed them anyway"). However, as discussed above, Texas
law is clear regarding when adm inistrative rem edies are exhausted under the facts of this case. Thus, we
need not look to federal law to interpret these provisions. See T EX . L AB . C OD E A N N . § 21.001(1) (Vernon 2006)
(setting out purposes of chapter 21); Quantum Chem. Corp. v. Toennies, 47 S.W .3d 473, 476 (Tex. 2001)
(explaining that, because one of the purposes of chapter 21 is to execute the policies of Title VII of the Civil
Rights Act of 1964, federal case law m ay be cited as authority); NME Hosps., Inc. v. Rennels, 994 S.W .2d
142, 144 (Tex. 1999) (adhering to legislative intent, Texas courts have looked to federal law in interpreting
these provisions).

                                                          8
                                     IV. CONCLUSION

      We affirm the trial court's order denying the City's plea to the jurisdiction.



                                                        NELDA V. RODRIGUEZ
                                                        Justice

Delivered and filed the
25th day of March, 2010.




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