
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



NO. 03-10-00867-CV


Sonya Thorn Lopez, Appellant

v.

Texas State University, Sherri H. Benn, and Stella Silva, Appellees




FROM THE DISTRICT COURT OF HAYS COUNTY, 207TH JUDICIAL DISTRICT
NO. 10-0901, HONORABLE WILLIAM HENRY, JUDGE PRESIDING


C O N C U R R I N G   A N D   D I S S E N T I N G   O P I N I O N

		Lopez asserts this sequence of events:  she fired Johnson; her supervisors reduced
her pay; she filed a pay grievance with TSU; and soon after, she was fired.  Although I concur with
most of the majority's decision in this case, I write separately because I respectfully dissent from the
majority's conclusion that Lopez's claim that TSU retaliated against her for filing a pay grievance
is not factually related to the retaliation claim for firing Johnson stated in her EEOC charge and thus
Lopez failed to exhaust her administrative remedies for the pay-grievance claim.  I also respectfully
dissent from the majority's conclusion that intake questionnaires should be considered to assist
the court in determining the scope of the charge only if (1) the facts set out in the questionnaire
are a reasonable consequence of a claim set forth in the EEOC charge, and (2) the employer had
actual knowledge of the contents of the questionnaire during the course of the EEOC investigation.
Instead, I would follow the approach of those federal courts that have considered all the information
provided by the employee to the agency when determining whether a particular claim asserted in an
employee's lawsuit would be within the scope of the EEOC investigation that could reasonably be
expected to grow out of the initial charges of discrimination.  As a result, I would also remand to the
trial court Lopez's claim that TSU retaliated against her for filing a pay grievance.
		Lopez's EEOC charge asserted that she was wrongfully discharged from her position
in October 2009 and listed the allegedly pretextual reasons for her discharge.  She explained why she
believes that the reasons she was given for her discharge were pretextual:  "I have not received any
prior warnings or counseling; during July 2009, I received a bonus, while during September 2009,
I received a merit rate increase."  She then stated what she believes to be one of the real reasons she
was discharged:  "During September 2009, it was my misfortune to have fired the brother of my
department director."  The majority holds that this factual statement would reasonably give rise to
an administrative investigation of retaliation for Lopez's decision to terminate Johnson's employment,
but not her retaliation claim for filing a pay grievance, which it concludes is not factually related to
any of the claims stated in the charge.
		I respectfully disagree with the majority's conclusion that Lopez's retaliation claim
for filing a pay grievance is not a "factually related claim[] that could reasonably be expected to grow
out of the Commission's investigation of the charge."  Thomas v. Clayton Williams Energy, Inc.,
2 S.W.3d 734, 738 (Tex. App.--Houston [14th Dist.] 1999, no pet.) (citing Fine v. GAF Chem. Corp.,
995 F.2d 576, 578 (5th Cir. 1993)).  An employment-discrimination claim "may be based . . . upon
any kind of discrimination like or related to the charge's allegations, limited only by the scope of
the EEOC investigation that could reasonably be expected to grow out of the initial charges of
discrimination."  Fellows v. Universal Rests., Inc., 701 F.2d 447, 451 (5th Cir. 1983) (emphasis
added).  In Fellows, the Fifth Circuit, emphasizing the liberal construction given EEOC charges,
held that an employee's wording of her claims in the charge that she was paid less and her
applications for various superior positions at a restaurant were denied because of her gender
supported a subsequent class action for women subjected to the same discrimination or to
discrimination like or related to the discrimination she described.  Id.  In addition, the court held that
an EEOC investigation of class discrimination against women could reasonably be expected to
grow out of the employee's allegations in her initial EEOC charge.  Id.
		In this case, an administrative investigation of retaliation for terminating Johnson's
employment necessarily would encompass the retaliatory actions that Lopez alleges TSU took
against her.  Lopez alleges that after she terminated Johnson, her supervisors retaliated against
her by reducing her pay, leading her to file a pay grievance. (1)  She alleges that she was then fired.
Consequently, I conclude that Lopez exhausted her administrative remedies for her pay-grievance
claim by asserting her retaliation claim for firing Johnson in the charge. (2)
		But even if I had not concluded that Lopez's retaliation claim for filing a pay
grievance is "like or related to" her retaliation claim for firing Johnson, unlike the majority, I would
consider the intake questionnaire to determine whether the pay-grievance claim would be within
the scope of the EEOC investigation that could reasonably be expected to grow out of the initial
charge.  In this case, Lopez provided information in her intake questionnaire that supplements the
factual statement in her charge about her termination of Johnson's employment.  She asserted that
she filed a grievance on September 17 for reduction of pay through TSU-San Marcos's Human
Resources department, and after that, her supervisors harassed her and discriminated against her
in a number of ways.  She stated that she had reached the third step of TSU's grievance process on
the Friday before she was fired on Monday, October 19.  Lopez alleged that many of the negative
behaviors started when she was told to hire Johnson, the brother of one of her supervisors.  She also
explained that she was not aware that Johnson was her supervisor's brother when she told her
supervisors that he was not performing the duties and was not qualified for the position and that
the human-resources department had told her to terminate his employment.
		In my view, courts should examine all the information available to the agency when
analyzing the investigation's reasonably expected scope, and I would consider this information
provided by Lopez to the EEOC when deciding whether her pay-grievance claim reasonably would
come within the scope of the agency's investigation.  Consequently, I disagree with the majority's
decision to adopt the more narrow approach of those courts that consider intake questionnaires only
if (1) the facts set out in the questionnaire are a reasonable consequence of a claim set forth in the
EEOC charge, and (2) the employer had actual knowledge of the contents of the questionnaire during
the course of the EEOC investigation.
		The first prong of the majority's approach merely restates the question of what claims
are properly within the lawsuit's scope, adding nothing to the well-settled principle that the employee's
suit "may be based . . . upon any kind of discrimination like or related to the charge's allegations."
Fellows, 701 F.2d at 451.  This prong of the approach does not provide guidance on specific situations
when intake questionnaires should be considered.  Instead, it reiterates the existing limit on claims
not included in the original charge that may properly be included in the employee's lawsuit.
		The second prong of the majority's approach unfairly limits what information a
court should consider when determining what allegations would reasonably be expected to grow
from the agency's investigation.  Courts should examine all the information presented to the agency
to make this determination.  Silva v. Chertoff, 512 F. Supp. 2d 792, 812, 819-20 (W.D. Tex. 2007)
(examining all documents provided to EEOC by employee but deciding allegations in documents
described only employee's asserted physical disability and employer's failure to provide reasonable
accommodation for it and did not present sufficient factual predicate for alternative argument that
employer discriminated against employee because it erroneously regarded him as disabled); see also
Clark v. Kraft Foods, Inc., 18 F.3d 1278, 1280 (5th Cir. 1994) (examining all statements provided
to EEOC by plaintiff when determining that plaintiff's claim that she suffered disparate treatment
based on her gender would reasonably be expected to be part of EEOC's investigation even though
her charge alleged sexual harassment and retaliation for grievances filed). (3)  Courts should consider
all the information presented to the agency because "the purpose of a charge of discrimination is to
trigger the investigatory and conciliatory procedures of the EEOC"; it is not filed as a preliminary
to a lawsuit.  Sanchez v. Standard Brands, Inc., 431 F.2d 455, 466 (5th Cir. 1970).  Within the relevant
statutory scheme, a suit is not filed until the EEOC has had an opportunity to obtain voluntary
compliance, and thus the suit is "much more intimately related to the EEOC investigation than to the
words of the charge" that triggered the investigation.  Id.  While the purpose of serving employers
with complaints is to provide them with fair notice of the existence and nature of the charges against
them and to facilitate resolution of disputes without court action, that purpose must be balanced
with the competing policy of construing the scope of EEOC complaints liberally because most
complaints are initiated pro se.  See Pacheco v. Mineta, 448 F.3d 783, 788-89 (5th Cir. 2006).  As
the Fifth Circuit has established:

	the conciliation purposes of the act must yield to its more basic purposes to protect
persons against employment discrimination, indicating that protecting a merely
theoretical right to conciliation (that might not be accepted) by dismissing a
subsequent suit, is outweighed by more fundamental purposes of the Act to afford the
possibility of administrative and judicial relief to employees who are subject to
employment discrimination.

Fellows, 701 F.2d at 450 n.3 (addressing concern that alleged lack of notice of class basis for
discrimination charges deprived EEOC of opportunity to conciliate class grievances). (4)
		The second prong of the majority's approach too heavily favors the employer's
interest over the employee's, especially in cases in which the employee is pro se at the time the
intake questionnaire is filled out, the charge is filed, and the request for a right-to-sue notice is made.
Furthermore, in a case like Lopez's, in which the EEOC performed no investigation, the second
prong--requiring the employer to have had actual knowledge of the contents of the questionnaire
during the course of the EEOC investigation--makes no sense.  In Lopez's case, the EEOC performed
no investigation and issued the right-to-sue notice only a few weeks after the charge was filed and
served upon the employer. (5)  The charge's ostensible purpose of giving the EEOC and the employer
an opportunity to resolve the dispute is irrelevant when no agency investigation or conciliatory
process occurs before the employee files suit.  Without evidence of any agency investigation or any
conciliatory process, the employer's need for pre-suit notice of the claim is difficult to justify.  At
this early stage of the litigation, it seems inequitable to deny a day in court to a plaintiff who was
pro se when the intake questionnaire and charge were filed, especially when the agency and the
employer engaged in no process to attempt to resolve the plaintiff's claims without resort to the
courts.  As Justice Goldberg explained it:  "[S]urely Goliath should not be allowed to fell David with
the help of a club fashioned from forms and legal technicalities.  The most elementary principles of
justice require us to remove this club and compel a battle on the merits of the controversy."  Sanchez,
431 F.2d at 467.
		Furthermore, although the record before us is limited because the trial court dismissed
the case on a pre-discovery motion, Lopez alleges facts in her petition and her affidavit that indicate
that TSU had actual knowledge of the incidents underlying her claim that TSU took retaliatory action
against her because of her protected activity.  See Cooper v. Wal-Mart Transp., LLC, 662 F. Supp.
2d 757, 774 (S.D. Tex. 2009) (relying on handwritten notes attached to EEOC charge to support
hostile work environment claim because summary-judgment evidence demonstrated that employee
had complained to employer about several incidents described in notes); see also Martin v. Tyson
Foods, Inc., No. H-10-2047, 2011 WL 1103657, at *3-4 (S.D. Tex. Mar. 23, 2011) (relying on facts
stated in employee's demand letter and EEOC intake questionnaire to charge employer with
knowledge of facts supporting employee's hostile work environment claim).  Whether TSU had
actual knowledge that Lopez filed a pay grievance asserting that her supervisors reduced her pay
after she terminated Johnson is a relevant jurisdictional fact under the approach adopted by the
majority.  TSU argues on appeal, and the majority agrees, that the jurisdictional facts in this case are
undisputed.  TSU has argued only that the charge did not provide it with notice of Lopez's retaliation
claims, not that it had no actual knowledge of the events leading to Lopez's pay grievance.  For this
reason, even under the majority's approach, we should consider Lopez's intake questionnaire to
determine whether her pay-grievance claim is related to claims stated in her charge and she thus
adequately exhausted her administrative remedies for that retaliation claim.
		Because I disagree with the majority's conclusion that Lopez failed to exhaust her
administrative remedies for her claim that TSU retaliated against her because she filed a pay grievance,
and because I would reverse the trial court's judgment and remand this claim to the trial court, I
respectfully dissent.  Because I agree with the majority's disposition of the other issues involved, I
respectfully concur in the remainder of the majority's decision to affirm in part and to reverse and
remand in part.

						__________________________________________
						Diane M. Henson, Justice
Before Chief Justice Jones, Justices Henson and Goodwin
Filed:   April 20, 2012
1.   When considering a trial court's order on a plea to the jurisdiction, in addition to the
evidence relevant to the jurisdictional question, we consider the plaintiff's pleadings and construe
those pleadings liberally in the plaintiff's favor and look to the pleader's intent.  Texas Dep't of
Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226-28 (Tex. 2004).
2.   In addition, Lopez asserts in her petition that TSU retaliated against her because of her
opposition to Johnson's hiring, as well as her opposition to the pressure she felt to hire other
African-American applicants even after explaining to her supervisors that the population that their
program serves is predominantly Hispanic.  While she did not include her allegation that she was
pressured to hire African-American applicants over Hispanic applicants in her intake questionnaire,
it provides relevant context to the environment in which her hiring and firing of Johnson occurred.
3.    The majority expresses concern that considering the intake questionnaire effectively treats
the intake questionnaire as an independent charge instead of using it as a mere supplement to
claims stated in the charge or reasonably related claims.  Those courts that have examined all the
information available to the agency have used that information to assist them in determining whether
the reasonable scope of the agency's investigation would have included a challenged claim, not to
allow the assertion of an unrelated claim.  See Silva v. Chertoff, 512 F. Supp. 2d 792, 812, 819-20
(W.D. Tex. 2007) (examining all documents but deciding allegations in documents did not present
sufficient factual predicate for alternative argument); see also Clark v. Kraft Foods, Inc., 18 F.3d
1278, 1280 (5th Cir. 1994) (examining all statements provided to EEOC by plaintiff and deciding
that those statements "presented a sufficient predicate upon which one reasonably would expect the
agency to investigate a disparate treatment claim" and raised inferences supporting plaintiff's
claim in her charge that she "was harassed because of [her] sex, female").  Thus, the majority's
concern that the intake questionnaire will effectively be treated as a charge by courts that examine
supplemental information is unwarranted.
4.   The majority relies upon an unpublished Fifth Circuit opinion to distinguish Clark and for
the proposition that a core function of the charge requirement is notice to the employer.  See Harris
v. Honda, 213 F. App'x 258, 262 (5th Cir. 2006) (unpublished and not precedent under 5th Cir. R.
47.5.4) (per curiam).  Although I do not disagree that notice to the employer is one purpose of the
charge, I disagree with the court's characterization in Harris that notice to employers of claims of
discrimination is "the major underlying purpose of the exhaustion requirements."  Id.  I note that the
case upon which the court relied for this proposition in fact stated that "a fundamental purpose of
the charge is to trigger an investigation by the EEOC" and that the need for courts to construe EEOC
charges "with the utmost liberality. . . . stems from the framework of Title VII and its goal of
encouraging voluntary compliance through EEOC conciliation."  Terrell v. U.S. Pipe & Foundry
Co., 644 F.2d 1112, 1123 (5th Cir. 1981) (holding that charges failed to allege specific conduct
implicating international labor unions and thus did not trigger liability for those unions), vacated on
other grounds, 456 U.S. 955 (1982).
5.   No evidence has been presented that indicates the TWC's civil rights division conducted
an investigation of the claims made by Lopez in her EEOC charge before issuing a right-to-sue
notice.  See Tex. Labor Code Ann. § 21.0015 (West 2006) (authorizing TWC's civil rights division
to exercise Commission on Human Rights' powers and duties under chapter 21 of labor code);
id. § 301.152 (West 2006) (establishing civil rights division as independent division in TWC
responsible for administering chapter 21 of labor code).  In the affidavit that Lopez submitted in
support of her response to the plea to the jurisdiction, she avers that she had two unemployment
hearings before the TWC and submitted additional documentation to the TWC describing her
race-discrimination and retaliation claims.  TSU points out that an investigation for unemployment
benefits is not the same as an investigation of allegations of discrimination and retaliation.  A
different division of the TWC handles unemployment claims.  There is no evidence that the TWC's
civil rights division conducted any investigation into Lopez's allegations that TSU engaged in
unlawful employment practices after the EEOC issued its right-to-sue notice and before the TWC
issued a right-to-sue notice at her counsel's request.  The TWC's right-to-sue notice is not in the
appellate record.  Lopez also averred in her affidavit that she asked the EEOC about amending her
charge after she had hired counsel, and the EEOC told her that she could not do so because the
agency had already issued her right-to-sue notice.
