      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



              CONCURRING AND DISSENTING OPINION


                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



                                                   2
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




       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
                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.

                                                   4
                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


        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

                                                   5
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.




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.

                                                  6
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

        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

                                                    7
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


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.

                                                  8
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


                                                   9
