                                     NO. 07-06-0111-CV

                               IN THE COURT OF APPEALS

                        FOR THE SEVENTH DISTRICT OF TEXAS

                                        AT AMARILLO

                                           PANEL A

                                      AUGUST 15, 2006

                           ______________________________


                        TEXAS TECH UNIVERSITY, APPELLANT

                                               V.

                              STEPHEN FINLEY, APPELLEE


                         _________________________________

             FROM THE 72ND DISTRICT COURT OF LUBBOCK COUNTY;

             NO. 2005-530,407; HONORABLE BLAIR CHERRY,JR., JUDGE

                           _______________________________

Before REAVIS and CAMPBELL and HANCOCK, JJ.


                                           OPINION


       By this accelerated appeal, appellant, Texas Tech University, challenges the trial

court’s order denying its plea to the jurisdiction and granting injunctive relief in favor of

appellee, Stephen Finley. Presenting two issues, Texas Tech contends the trial court erred

by (1) denying its plea to the jurisdiction when Finley did not file his discrimination complaint
within 180 days after the date of the alleged discrimination, and (2) enjoining it from having

future contact with the Equal Employment Opportunity Commission (EEOC) and the Texas

Workforce Commission-Civil Rights Division (TWC-CRD)1 regarding Finley’s claim. We

affirm in part and reverse and render in part.


       Finley was terminated from his employment at Texas Tech University on November

7, 2003. Following his termination, he filed suit against Texas Tech alleging claims of age

discrimination and retaliation. Texas Tech subsequently filed a plea to the jurisdiction

contending the trial court lacked subject-matter jurisdiction because Finley failed to timely

file a discrimination complaint with the TWC-CRD within 180 days after the date the

“alleged unlawful employment practice occurred.” See Tex. Lab. Code Ann. § 21.202(a)

(Vernon 2006). Under section 21.202, Finley must have filed his discrimination complaint

no later than May 5, 2004. In response to the plea, Finley asserted his discrimination

complaint was timely mailed to the El Paso Area Office of the EEOC in a letter dated March

10, 2004.2 He further claimed he completed a charge questionnaire in April 2004 which

supplemented his initial complaint.


       On March 10, 2006, the court held a hearing on the plea. At the hearing, Texas

Tech contended that Finley’s discrimination complaint was untimely because the formal


       1
       In 2004, the powers and duties of the Texas Commission on Human Rights (TCHR)
were transferred to the newly formed Civil Rights Division of the Texas Workforce
Commission. Tex. Lab. Code Ann. § 21.0015 (Vernon 2006).
       2
           A file-stamped copy of the letter was attached to the pleadings.

                                               2
charge of discrimination on file with the TWC-CRD was dated July 26, 2004, eighty-three

days after the 180-day deadline. In response, Finley introduced into evidence, without

objection, two letters, one from the El Paso EEOC and one from the TWC-CRD, stating that

his March 10 correspondence was received on April 5, 2004, that it fulfilled the

requirements of a complaint, and his complaint was timely filed. Following the hearing, on

March 21, 2006, the trial court signed an order denying the plea to the jurisdiction. The

order also prohibited Texas Tech from contacting either agency in further attempts to

interfere with their previous findings.3 By its first issue, Texas Tech contends the order

denying the plea was error. We disagree.


                                    Standard of Review


       A party may challenge a trial court’s subject-matter jurisdiction by a plea to the

jurisdiction. Tex. Dep’t of Transp. v. Jones, 8 S.W.3d 636, 638-39 (Tex. 1999). A plea to

the jurisdiction is a dilatory plea, the purpose of which is to defeat a cause of action without

regard to whether the claim asserted has merit. Bland Independent School Dist. v. Blue,

34 S.W.3d 547, 554 (Tex. 2000). Whether a trial court has subject-matter jurisdiction is a

question of law; therefore, we review the trial court’s order denying the plea de novo.

Texas Natural Res. Conservation Comm'n v. IT-Davy, 74 S.W.3d 849, 855 (Tex. 2002).




       3
           See infra footnote 6.

                                               3
       In deciding a plea to the jurisdiction, we look to whether the plaintiff has alleged facts

in his pleadings that affirmatively demonstrate the trial court’s jurisdiction to hear the cause.

Texas Dep't of Parks and Wildlife v. Miranda, 133 S.W.3d 217, 227 (Tex. 2004). However,

when a plea to the jurisdiction challenges the existence of jurisdictional facts, our review

is not restricted solely to the pleadings, but we must consider any relevant evidence

submitted by the parties when necessary to resolve the jurisdictional issue raised. Id;

Bland, 34 S.W.3d at 555.


                            Finley’s Discrimination Complaint


       Under Texas law, a person claiming employment discrimination must exhaust all

administrative remedies prior to bringing a civil action in district court. Schroeder v. Tex.

Iron Works, Inc., 813 S.W.2d 483, 488 (Tex. 1991). To initiate the administrative process,

an aggrieved employee must file a complaint with the EEOC or TWC-CRD no later than the

180th day after the date the alleged unlawful employment practice occurred.4 Tex. Lab.

Code Ann. § 21.201-.202; Specialty Retailers, Inc. v. DeMoranville, 933 S.W.2d 490, 492

(Tex. 1996). This time limit is mandatory and jurisdictional. Schroeder, 813 S.W.2d at 486.

Failure to timely file an administrative complaint deprives Texas trial courts of subject-



       4
         Although Texas Tech cites in its brief that Finley was required to file a complaint
with the TWC-CRD regardless of whether an administrative charge was filed with the
EEOC, under the 1998 Worksharing Agreement, an initial complaint filed with the EEOC
will also be considered filed with the TWC-CRD. Vielma v. Eureka Co., 218 F.3d 458, 462-
63 (5th Cir. 2000); Burgmann Seals Am., Inc. v. Cadenhead, 135 S.W.3d 854, 857
(Tex.App.–Houston [1st Dist.] 2004, no pet.).

                                               4
matter jurisdiction.     Vincent v. W. Tex. State Univ., 895 S.W.2d 469, 473

(Tex.App.–Amarillo 1995, no writ).


       In the present case, Finley contends there is substantial evidence his claim was

timely filed within the 180-day statute of limitation. Foremost, the record contains a

fourteen-page letter addressed to the EEOC-El Paso Area Office dated March 10, 2004,

and file-stamped April 5, 2004. The first sentence of the letter reads “I would like to relate

to you a charge of employment discrimination (based on age and possibly other factors)

against Texas Tech University.” As evidenced by the correspondence admitted at the

March 10, 2006 hearing, Finley’s March 10 complaint letter was received by the EEOC on

April 5, 2004, and satisfied the requirements of a timely filed complaint. Furthermore, the

TWC-CRD confirmed by letter that, because complaints filed with the EEOC are

automatically dually filed with the TWC-CRD upon receipt, the March 10 letter was properly

filed within the 180-day statute of limitation. Also attached to the pleadings is a charge

questionnaire, file-stamped April 23, 2004, summarizing the complaints made in the March

10 letter.


       However, despite this jurisdictional evidence, Texas Tech propounds several

reasons why Finley’s complaint remains untimely filed. First, it argues the July 26, 2004

charge of discrimination contained in the TWC-CRD’s certified file is the “formal complaint”

which initiated the administrative process. Similarly, Texas Tech contends the EEOC’s




                                              5
actions indicate the agency did not consider Finley’s complaint timely filed until the July 26

charge. We disagree.


       Our examination of the July 15, 2004 letter from the EEOC, which Texas Tech

contends supports its position that the administrative process had not yet begun, reveals

the July 26 charge is actually the perfected charge prepared by the EEOC “as a result of

the information provided” in Finley’s initial correspondence. See Tex. Lab. Code Ann. §

21.201(d). The letter instructs Finley to review the prepared charge, make corrections

where necessary, sign and date, and return to the EEOC office. The record reflects (1) the

EEOC received Finley’s initial complaint on April 5, (2) Finley completed an initial charge

questionnaire on April 23, (3) the EEOC prepared a perfected charge which it mailed to

Finley on July 15, (4) Finley reviewed and returned the perfected charge to the EEOC on

July 26, and (5) the perfected charge was forwarded to Texas Tech within ten days

pursuant to 21.201(d).5


       This sequence of events is supported by the fact that Chapter 21 of the Labor Code

recognizes a clear distinction between an original complaint and a perfected complaint.

See Tex. Lab. Code Ann. § 21.201(d)-(g) (providing that the respondent shall be served

with a copy of the perfected complaint, but “[i]f a perfected complaint is not received by the

commission within 180 days of the alleged unlawful employment practice, the commission

shall notify the respondent that a complaint has been filed and that the process of


       5
           The EEOC notified Texas Tech of Finley’s discrimination claim on August 2, 2004.

                                              6
perfecting the complaint is in progress.”). Furthermore, as we explained in Brammer v.

Martinaire, Inc., 838 S.W.2d 844, 846 (Tex.App.–Amarillo 1992, no writ), the regular

practice “is to require an aggrieved party to complete a questionnaire concerning his charge

and submit it to [the Commission]. The Commission thereafter prepares a formal charge

and sends this to the complainant to be reviewed and signed under oath.” The record here

suggests this was the course of action taken by the EEOC with respect to Finley’s charge.

Consequently, we find no merit in Texas Tech’s contention that the administrative process

was not initiated until the July 26 charge was filed.


       In addition, acknowledging the documents filed prior to the 180-day deadline, Texas

Tech insists the documents Finley filed with the EEOC “do not count” because there is

nothing in the certified record of his TWC-CRD file which predates the July 26 charge.

However, we are unable to find any authority, and none has been cited, indicating whether

all documents originally filed with the EEOC are required to be retained by the TWC-CRD.

More important, for the purposes of this appeal, it is a question we need not decide. The

TWC-CRD has recently clarified that “[f]or the purpose of satisfying the filing requirements

of Texas Labor Code § 21.201 . . . timeliness of the complaint shall be determined by the

date on which the complaint is received by EEOC.” 30 Tex. Reg. 6082 (2005), adopted 30

Tex. Reg. 6065 (2005) (codified at 40 Tex. Admin. Code § 819.71).


       In Finley’s case, the relevant evidence shows a letter satisfying the elements of a

complaint was received on April 5, 2004, one month prior to the statutory time limit.


                                             7
Accordingly, we hold Finley’s complaint was timely filed and agree that the trial court had

jurisdiction over the matter. Texas Tech’s first issue is overruled.


                                  Award of Injunctive Relief


       By its second issue, Texas Tech contends the trial court erred by enjoining it from

having future contact with the EEOC or the TWC-CRD related to this matter.6 We agree.


       By its March 21, 2006 order, in addition to denying the plea to the jurisdiction, the

trial court ordered as follows:


       Defendant is further ordered to cease contact with the Equal Employment
       Opportunity Commission or the Texas Workforce Commission-Civil Rights
       Division in further attempts to interfere with the previous findings of those
       agencies regarding the timeliness and sufficiency of Plaintiff’s attempts at
       administrative relief.


Finley requested injunctive relief in his second response to the plea to the jurisdiction. Yet,

by his pleadings, he did not seek a temporary restraining order or temporary injunction

pursuant to Rules 680 and 681 of the Rules of Civil Procedure. However, because the trial

court’s order places restrictions on Texas Tech and is made effective immediately, it

functions as a temporary injunction and is void because, among other reasons, the order


       6
         One week prior to the hearing, the TWC-CRD reversed its position and issued a
letter rescinding Finley’s notice of right to file a civil action which it issued in February 2005.
Five days later, after further review, the TWC-CRD again reversed its position, rescinding
the letter rescinding Finley’s right to file a civil action. At the hearing on the plea, Finley
claimed the TWC-CRD informed him that the Attorney General’s Office had contacted them
and caused this to happen. As a result, Finley informally requested injunctive relief.

                                                8
failed to set bond and failed to include a date for a trial on the merits as required by Rules

683 and 684. See Qwest Communications Corp. v. AT & T Corp., 24 S.W.3d 334, 337

(Tex. 2000); Ebony Lake Healthcare Ctr. v. Tex. Dep’t of Human Serv., 62 S.W.3d 867, 870

(Tex.App.–Austin 2001, no pet.). Therefore, Texas Tech’s second issue is sustained.


       Accordingly, that portion of the trial court’s order prohibiting Texas Tech University

from further contact with the Equal Employment Opportunity Commission and the Texas

Workforce Commission-Civil Rights Division is reversed and we hereby render judgment

dissolving that portion of the trial court’s order awarding Stephen Finley injunctive relief.

In all other respects, the order is affirmed.



                                                    Don H. Reavis
                                                      Justice




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