The opinion
IN THE SUPREME COURT OF TEXAS
IN THE SUPREME COURT OF
TEXAS
═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═
No.
03-1123
═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═
Van
Independent School District, Petitioner
v.
Scott A.
McCarty, Respondent
═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═
On Petition for Review from
the
Court of Appeals for the
Twelfth District of Texas
═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═
Justice O’Neill , dissenting.
The
Court, without the benefit of oral argument, summarily resolves an issue of
first impression by holding that compliance with non-statutory administrative
deadlines was a jurisdictional prerequisite to filing suit in this case.
Moreover, the Court does so without acknowledging the impact of its holding. I
believe that McCarty exhausted his administrative remedies by requesting the
Board to hold a hearing on his grievance and to waive the non-statutory deadline
for filing the request. I also believe that the purpose of the exhaustion
requirement was satisfied in this case. Because I would hold that the district
court had jurisdiction over McCarty’s retaliatory discharge claim, I
respectfully dissent.
McCarty
was an at-will employee of Van Independent School District who sued for unlawful
termination under chapter 451 of the Texas Labor Code. As the Court notes, we
have held that the trial court lacked subject-matter jurisdiction in a case in
which a similarly situated plaintiff failed to exhaust her administrative
remedies by suing a school district for retaliatory discharge without first
invoking the local grievance procedures. Wilmer-Hutchins Indep . Sch . Dist. v. Sullivan ,
51 S.W.3d 293, 294 (Tex. 2001) (per curiam ). But
unlike the plaintiff in Wilmer-Hutchins , McCarty invoked the grievance
procedures by requesting a hearing before the Board of Trustees as set out in
the local policy; he simply failed to do so within the seven-day deadline set by
the policy. [1]
I
agree with the Court, as did the court of appeals, that failure to exhaust
administrative remedies is a jurisdictional defect. Unlike the Court, however, I
do not read the court of appeals’ opinion to hold that subject matter
jurisdiction can be and was conferred by waiver, ___ S.W.3d at ___; in fact, the
court of appeals expressly recognized the proposition that subject matter
jurisdiction cannot be conferred on a court by waiver. [2]
___ S.W.3d ___, ___ (citing Dubai Petroleum Co. v. Kazi , 12 S.W.3d 71, 76 (Tex. 2000)). What the court of
appeals did hold was that “the matter waived [ i.e. , the seven-day filing
deadline] was not a prerequisite to subject matter jurisdiction.” Id. The
real issue, then, is whether McCarty failed to exhaust his administrative
remedies by filing his grievance in an untimely fashion, or whether the
administrative deadline was simply a procedural requirement that could be
waived.
The
Court effectively agrees with the former proposition by holding that because the
Board did not extend the deadline and McCarty did not comply with it, he failed
to exhaust his administrative remedies. ___ S.W.3d at ___. But whether a local
administrative body like a school district can impose such a jurisdictional
deadline is an issue of first impression that the Court decides with little to
no analysis.
We
have previously addressed the issue of whether administrative deadlines imposed
by statute are jurisdictional when exhaustion of administrative remedies is
required. In Schroeder v. Texas Iron Works, Inc. , we held that a person
claiming a violation of the Commission on Human Rights Act (CHRA) must first
exhaust the administrative remedies set out in the statute. 813 S.W.2d 483, 485
(Tex. 1991) (citing Act of July 8, 1983, 68th Leg., 1st C.S., ch . 7, 1983 Tex. Gen. Laws 37 , repealed by Act of May
24, 1993, 73d Leg., R.S., ch . 269, § 5, 1993 Tex. Gen.
Laws 1273 (current version at Tex. Lab.
Code §§ 21.001-21.306)). We specifically noted that the statutory
provision requiring a claim to be filed with the Commission within 180 days
after the alleged unlawful practice occurred was “mandatory and jurisdictional.”
Id. at 486. But in contrast to the CHRA, chapter 451 of the Labor Code
sets out no administrative prerequisites for bringing a claim against an
employer for discrimination based on filing a worker’s compensation claim. Tex. Lab. Code §§ 451.001-451.003. Nor
does the Education Code provide an administrative review system governing
someone in McCarty’s situation; it simply gives the school board the authority
to “adopt a policy providing for the employment and duties of district
personnel.” Tex. Educ. Code §
11.163.
I
cannot interpret that general provision to give local school boards authority to
impose jurisdictional deadlines on employees who assert a statutory claim for
retaliatory discharge. I agree with the court of appeals that strict compliance
with the seven-day deadline was not a jurisdictional prerequisite to filing
suit. The deadline was rather a local administrative requirement that the Board
could waive. See, e.g. , Grigsby v. Moses , 31 S.W.3d 747, 750 (Tex.
App. B Austin
2000, no pet.) (school board did not waive fifteen-day deadline for employee to
initially present grievance by listening to employee’s complaint without
receiving evidence or acting on the merits); Hernandez v. Meno , 828 S.W.2d 491, 494 (Tex. App. B Austin
1992, writ denied) (school district waived ten-day deadline for employee to
request a hearing by actually conducting an evidentiary hearing on the merits).
Indeed, the grievance policy itself expressly contemplated that the deadlines
could be waived by mutual consent. That the Board ultimately rejected McCarty’s
extension request as well as the merits of his case does not mean that he failed
to invoke the administrative grievance process for exhaustion purposes.
It
is important to keep in mind in cases like this the general purpose of the
exhaustion-of-remedies doctrine, which is to prevent courts from interfering
with administrative procedures before an agency has been allowed to complete its
own decision and review process. United States v. Paternostro , 966 F.2d 907, 912 (5th Cir. 1992). That
purpose has been met here. By requesting that the Board grant him a hearing and
waive the untimeliness of his request, McCarty gave
the school board the first chance to consider his grievance, which it did by
conducting an evidentiary hearing and denying the grievance. [3]
There were no further administrative requirements, pursuant to either the
statute or the local policies, for McCarty to meet before filing his statutory
suit for retaliatory discharge.
I
would hold that McCarty exhausted his administrative remedies and that the
district court had subject matter jurisdiction over his retaliatory discharge
lawsuit. Because the Court holds otherwise, I respectfully dissent.
_________________________________
Harriet
O’Neill
Justice
OPINION DELIVERED: May
27, 2005
[1] I note, however, that the deadline itself was not
entirely clear in this case. The superintendent’s letter terminating McCarty did
not specify a deadline, but merely informed him that he had “the right to
request and to be heard by the Board in accordance with policy DGBA (LOCAL).”
The policy provides for a three-step grievance process, each with its own
deadlines. The District concedes here that the first two steps of the process,
which require an employee to discuss a grievance with his principal or immediate
supervisor and then with the superintendent, did not apply in McCarty’s case
because he was terminated directly by the superintendent. Given this departure
from the usual procedure, the deadline to request that the matter be placed on
the agenda of a future Board meeting (step 3) understandably may not have been
readily apparent to McCarty.
[2] I accordingly question the Court’s conclusion that the
court of appeals’ opinion conflicts with Wilmer-Hutchins such that we
have conflicts jurisdiction in this case. ___ S.W.3d at
___.
[3] The Court expresses doubt as to the nature of the
evidence presented at the closed hearing. ___ S.W.3d at ___ n.13. But the
District does not dispute that the Board rendered an alternative decision on the
merits; rather, it contends there was no waiver because of the Board’s
independent denial of McCarty’s grievance based on his failure to meet the
deadline.