Opinion filed December 31, 2013




                                        In The


        Eleventh Court of Appeals
                                     __________

                              No. 11-11-00355-CV
                                  __________

 JIMMY WILSHER, JIMMY D. ASBILL, JERRY “GERARDO”
 GARCIA, CRAIG MAYHALL, JOHN M. WEGNER, BARBARA
   CAROLYN WIGGINS, FIDENCIO GARCIA JR., RONAL
         PILAND, AND TERRY VINES, Appellants
                                          V.
                       CITY OF ABILENE, Appellee


                    On Appeal from the 350th District Court
                                  Taylor County, Texas
                          Trial Court Cause No. 09010D


                     MEMORANDUM OPINION
      Appellants, Jimmy Wilsher, Jimmy D. Asbill, Jerry ―Gerardo‖ Garcia, Craig
Mayhall, John M. Wegner, Barbara Carolyn Wiggins, Fidencio Garcia Jr., Ronal
Piland, and Terry Vines, brought this age discrimination suit against their former
employer, Appellee, the City of Abilene.1 The trial court granted the City‘s plea to
the jurisdiction as to the claims of Appellants Wiggins, Garcia Jr., Piland, and
Vines. The trial court granted summary judgment in favor of the City on the other
Appellants‘ claims. We reverse the trial court‘s judgment and remand this cause to
the trial court for further proceedings consistent with this opinion.
        Appellants Wilsher, Asbill, Garcia, Mayhall, and Wegner each filed a charge
of discrimination with the Texas Workforce Commission Civil Rights Division
(Commission). They stated in their charges that ―THIS IS A CLASS ACTION
FILED ON BEHALF OF PLAINTIFF AND ALL SIMILARLY SITUATED
EMPLOYEES.‖            They alleged in the charges that the City had discriminated
against them and other similarly situated employees on the basis of their age.
Appellants Wiggins, Garcia Jr., Piland, and Vines did not file charges with the
Commission.
        Appellants brought this suit against the City. They did not bring the suit as a
class action. Appellants alleged, among other things, that the City forced them to
retire on the basis of their age under what the City identified as a voluntary
retirement incentive program. The City asserted in a plea to the jurisdiction that
Appellants Wiggins, Garcia Jr., Piland, and Vines failed to exhaust their
administrative remedies because they did not file a complaint with the Commission
as required by the Texas Labor Code. See TEX. LABOR CODE ANN. §§ 21.201,
21.202 (West 2006). Based on its assertion, the City contended that the trial court
lacked jurisdiction over the claims of Appellants Wiggins, Garcia Jr., Piland, and
Vines. Following a hearing, the trial court entered an order in which it granted the
City‘s plea to the jurisdiction.



        1
          Irene M. Grant was also a plaintiff in the suit below. The trial court granted summary judgment
to the City on Grant‘s claims. Grant has not appealed from the trial court‘s judgment.

                                                   2
      The City filed a separate ―Motion for No-Evidence Summary Judgment‖ as
to each of the other Appellants. The City asserted the same grounds for summary
judgment as to each Appellant. Specifically, the City contended that it was entitled
to a no-evidence summary judgment on the claims of Appellants Wilsher, Asbill,
Garcia, Mayhall, and Wegner on the following grounds:
      [Plaintiff] cannot provide any evidence to support the following
      elements:

                   (2) That he was discharged;

                  (4) That he was replaced by someone under forty,
            replaced by someone younger, or was otherwise
            discharged because of age; and/or

                  (5) That Defendant‘s stated reason for discharge
            was a pretext for discrimination.

      The City also filed separate traditional motions for summary judgment as to
Appellants Wilsher, Asbill, Garcia, Mayhall, and Wegner. The City titled each of
its traditional motions in the same manner, such as ―Defendant‘s Motion for Final
Summary Judgment on Plaintiff‘s Cause of Action and on Its Affirmative Defenses
Regarding John M. Wegner.‖        In its traditional motions, the City moved for
summary judgment on the following grounds:
             The material evidence shows that Plaintiff did not suffer an
      adverse employment action. The material evidence shows that
      Plaintiff was not replaced by another person. Plaintiff‘s cause of
      action for age discrimination under the Texas Labor Code must
      wholly fail and be denied.

            Defendant has provided evidence of its legitimate,
      nondiscriminatory reason for its creation and implementation of its
      voluntary retirement incentive program to reduce its operating
      expenses during the summer of 2009, and Plaintiff has provided no


                                         3
      legitimate evidence that Defendant‘s stated reason was a pretext to
      discrimination.

            Plaintiff, for consideration received, release[d] his claims
      against the Defendant arising out of Plaintiff‘s participation in the
      voluntary retirement incentive program.

Appellants filed a response to the City‘s traditional motions for summary judgment
and its no-evidence motions for summary judgment.
      The trial court held a hearing on the City‘s motions for summary judgment.
Following the hearing, the trial court entered orders in which it granted the City‘s
traditional motions for final summary judgment as to Appellants Wilsher, Asbill,
Garcia, Mayhall, and Wegner. The trial court entered a separate order as to each of
these Appellants. By way of example, one of the orders is titled ―Order on
Defendant‘s Motion for Final Summary Judgment Regarding Plaintiff John M.
Wegner‘s Cause of Action.‖ The trial court stated in the order that there had been
a hearing on ―Defendant‘s Motion for Final Summary Judgment on Plaintiff‘s
Cause of Action‖ and that, ―[a]fter consideration of the pleadings, authorities
presented, and arguments of counsel, the Defendant‘s Motion for Final Summary
Judgment on Plaintiff John M. Wegner‘s Cause of Action is Granted.‖ The trial
court did not refer to the City‘s no-evidence motions for summary judgment in its
orders. The trial court entered findings of fact and conclusions of law related to its
summary judgment orders.
      Appellants present four appellate issues for review. In their first two issues,
Appellants contend that the trial court erred when it granted summary judgment to
the City on their age discrimination claims because they raised fact issues as to
whether they suffered adverse employment actions and as to whether they were
replaced by younger workers, were replaced by someone outside the protected
class, or were otherwise discriminated against because of age. In their third issue,

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Appellants contend that the trial court erred when it ruled that certain statements
made by City employees were hearsay and that, therefore, the statements were
inadmissible as summary judgment evidence. In their fourth issue, Appellants
contend that the trial court erred when it granted the City‘s plea to the jurisdiction
as to the claims of Appellants Wiggins, Garcia Jr., Piland, and Vines.
      The trial court granted the City‘s traditional motions for summary judgment
in its summary judgment orders. The trial court did not rule on the City‘s no-
evidence motions for summary judgment. To prevail on a traditional motion for
summary judgment, the movant must show that there is no genuine issue of
material fact and that it is entitled to judgment as a matter of law. TEX. R. CIV. P.
166a(c); Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844,
848 (Tex. 2009). A defendant who moves for traditional summary judgment must
conclusively negate at least one essential element of each of the plaintiff‘s causes
of action or conclusively establish each element of an affirmative defense. Frost
Nat’l Bank v. Fernandez, 315 S.W.3d 494, 508 (Tex. 2010); Centeq Realty, Inc. v.
Siegler, 899 S.W.2d 195, 197 (Tex. 1995).          Evidence is conclusive only if
reasonable minds could not differ in their conclusions. City of Keller v. Wilson,
168 S.W.3d 802, 816 (Tex. 2005).          If the defendant establishes its right to
summary judgment as a matter of law, the burden shifts to the plaintiff to present
evidence raising a genuine issue of material fact. Siegler, 899 S.W.2d at 197.
      As stated above, the City raised multiple grounds for summary judgment in
its traditional motions for summary judgment. The trial court entered general
summary judgment orders in which it did not specify the ground or grounds upon
which it rendered summary judgment. Generally, when a party asserts multiple
grounds for summary judgment in its motion and the trial court does not specify a
ground for its summary judgment, we will affirm the summary judgment if any


                                          5
ground asserted in the motion is meritorious. FM Props. Operating Co. v. City of
Austin, 22 S.W.3d 868, 872 (Tex. 2000).
      The record in this case demonstrates that the trial court did not grant
summary judgment to the City on all the grounds asserted in its traditional
motions. The trial court entered findings of fact and conclusions of law. Findings
of fact and conclusions of law have no place in a summary judgment proceeding.
Linwood v. NCNB Tex., 885 S.W.2d 102, 103 (Tex. 1994); Mattox v. Cnty.
Commissioners’ Court, 389 S.W.3d 464, 469 (Tex. App.—Houston [14th Dist.]
2012, pet. denied). Summary judgment is appropriate only if there is no genuine
issue of material fact. If a trial court makes factual findings, this indicates that a
question of fact was present and that, therefore, summary judgment was improper.
Odessa Tex. Sheriff’s Posse, Inc. v. Ector Cnty., 215 S.W.3d 458, 463–64 (Tex.
App.—Eastland 2006, pet. denied).
      We recognize that, in general, we should not consider a trial court‘s findings
of fact in a review of a summary judgment order. Mattox, 389 S.W.3d at 469.
However, in this case, the trial court‘s findings conflict with the general summary
judgment orders. At a minimum, the trial court found that fact issues existed on
some of the summary judgment grounds asserted by the City in its traditional
motions. The findings of fact demonstrate that the trial court did not intend to
grant summary judgment on all the grounds urged by the City. For example, the
trial court found that ―[t]here is a fact issue as to whether the reasons offered by the
Defendant for the action affecting the Plaintiffs‘ employment was a pretext for age
discrimination‖ and that ―[t]here is a fact issue as to whether the ‗Release‘ signed
by each Plaintiff was done so knowingly and voluntarily.‖ Although Appellants all
presented similar summary judgment evidence on the issue of whether they were
constructively discharged, the trial court found that a fact issue existed as to
whether Asbill and Mayhall were constructively discharged but also found that the
                                           6
other three Appellants were not constructively discharged. In the context of a
traditional motion for summary judgment, the City had the burden to conclusively
negate that Appellants suffered an adverse employment action.
        The trial court erred when it entered findings of fact and conclusions of law.
Based on the trial court‘s findings of fact, we cannot determine the ground or
grounds upon which the trial court relied when it granted summary judgment. Nor
can we hold that any of the City‘s grounds for traditional summary judgment were
meritorious. Therefore, Appellants‘ first and second issues are sustained.
        Appellants contend in their fourth issue that the trial court erred when it
granted the City‘s plea to the jurisdiction that related to the claims of Appellants
Wiggins, Garcia Jr., Piland, and Vines.2 The City asserted that the trial court
lacked jurisdiction over the claims of these Appellants because they failed to
exhaust their administrative remedies.                  Section 21.201(a) of the Labor Code
provides that ―[a] person claiming to be aggrieved by an unlawful employment
practice or the person‘s agent may file a complaint with the commission.‖ LABOR
§ 21.201(a). Section 21.202(a) provides that ―[a] complaint under this subchapter
must be filed not later than the 180th day after the date the alleged unlawful
employment practice occurred.‖                Id. § 21.202(a).          The timely filing of an
administrative complaint is a mandatory and jurisdictional prerequisite to filing
suit. Specialty Retailers, Inc. v. DeMoranville, 933 S.W.2d 490, 492 (Tex. 1996);
Lueck v. State, 325 S.W.3d 752, 763 (Tex. App.—Austin 2010, pet. denied). The
failure to file a complaint within the 180-day period constitutes a failure to exhaust
administrative remedies and deprives the trial court of subject-matter jurisdiction.
Lueck, 325 S.W.3d at 763–66; Tex. Parks & Wildlife Dep’t v. Dearing, 240 S.W.3d
330, 358 (Tex. App.—Austin 2007, pet. denied) (Dearing II).
        The trial court‘s order granting the plea to the jurisdiction was not a final, appealable judgment
        2

when it was entered because it did not dispose of all parties and all claims. Lehmann v. Har-Con Corp.,
39 S.W.3d 191, 195 (Tex. 2001).

                                                    7
      Appellants Wiggins, Garcia Jr., Piland, and Vines did not file complaints
with the Commission. The other Appellants all filed timely complaints of age
discrimination with the Commission, and they all received notices of their rights to
file civil actions from the Commission. The Labor Code provides that the person
claiming to be aggrieved or the person‘s agent may file a complaint with the
Commission. LABOR § 21.201(a). The City contends that Appellants Wiggins,
Garcia Jr., Piland, and Vines cannot rely on the complaints filed by the other
Appellants for the purpose of exhausting their administrative remedies because the
other Appellants were not their agents.
      Appellants argue that the single-filing rule applies to the claims of
Appellants Wiggins, Garcia Jr., Piland, and Vines and that the rule allows them to
properly join their claims in this suit. The federal courts have fashioned the single-
filing rule, also known as the ―piggybacking‖ rule, in discrimination cases brought
under Title VII of the Civil Rights Act of 1964.3 See Holowecki v. Fed. Express
Corp., 440 F.3d 558, 564 (2nd Cir. 2006); Dearing II, 240 S.W.3d at 359. The
single-filing rule allows a plaintiff who has not filed a charge with the Equal
Employment Opportunity Commission to piggyback on an EEOC complaint that
has been filed by another person who is similarly situated. Tex. Parks & Wildlife
Dep’t v. Dearing, 150 S.W.3d 452, 459–60 (Tex. App.— Austin 2004, pet. denied)
(Dearing I). Two conditions must be met for one or more plaintiffs to join
individual claims if the named plaintiff filed a timely administrative charge: the
persons attempting to piggyback must be similarly situated to the person who
actually filed the EEOC charge, and the charge must provide notice of the
collective or class-wide nature of the charge. Id.
      In Dearing II, which was a class action, the court reaffirmed its holding in
Dearing I that the single-filing rule applies to age discrimination cases that are
      3
       See 42 U.S.C. §§ 2000e–2000e-17.

                                          8
brought under Texas law. Dearing II, 240 S.W.3d 360–61. After a thorough
examination of the relevant provisions of the Labor Code, the Dearing II court
concluded that ―the labor code manifests the legislature‘s intent to incorporate the
single-filing rule from title VII jurisprudence.‖ Id. at 360. The court held that the
plaintiffs who had not filed discrimination complaints with the Commission could
rely on the complaint filed with the Commission by another plaintiff for the
purpose of satisfying the requirement that they exhaust their administrative
remedies before filing a discrimination suit in court. Id. at 360–61. The plaintiff
who files the complaint with the Commission need not be the agent of the plaintiff
who did not file such a complaint for the single-filing rule to apply. Id. at 359–60.
      We agree with the sound reasoning of the Dearing II court. Unlike Dearing
II, this case is not a class action. The single-filing rule also applies to multiple-
plaintiff, non-class action suits. Foster v. Ruhrpumpen, Inc., 365 F.3d 1191, 1197
(10th Cir. 2004); Allen v. U.S. Steel Corp., 665 F.2d 689, 695 (5th Cir. 1982);
Crawford v. U.S. Steel Corp., 660 F.2d 663, 665–66 (5th Cir. 1981). The federal
courts universally recognize that, ―in a multiple-plaintiff, non-class action suit, if
one plaintiff has filed a timely EEOC complaint as to that plaintiff‘s individual
claim, then co-plaintiffs with individual claims arising out of similar
discriminatory treatment in the same time frame need not have satisfied the filing
requirement.‖ Foster, 365 F.3d at 1197 (quoting Allen, 665 F.2d at 695). In this
case, the claims of all Appellants, as alleged, arose out of similar discriminatory
treatment in the same time frame. We conclude that the single-filing rule applies
to the claims of Appellants Wiggins, Garcia Jr., Piland, and Vines. The trial court
erred when it granted the City‘s plea to the jurisdiction as to their claims.
Appellants‘ fourth issue is sustained. Based on our rulings on Appellants‘ first,
second, and fourth issues, we need not address Appellants‘ third issue. TEX. R.
APP. P. 47.1.
                                          9
      We reverse the judgment of the trial court, and we remand this cause to the
trial court for further proceedings consistent with this opinion.




                                                     JIM R. WRIGHT
                                                     CHIEF JUSTICE


December 31, 2013
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.




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