Carolyn K. McCollum v. Texas Department of Licensing and Regulation F/K/A Texas Cosmetology Commission

Opinion issued

April 22, 2010.

In The

Court of Appeals

For The

First District of Texas

________________

NO. 01-08-00414-CV

________________

CAROLYN MCCOLLUM, Appellant

v.

TEXAS DEPARTMENT OF LICENSING AND REGULATION, Appellee

On Appeal from the 165th District Court

Harris County, Texas

Trial Court Cause No. 2006-50301

OPINION

Carolyn

McCollum sued the Texas Department of Licensing and Regulation (the

“Department”), claiming that she had been improperly terminated from her

employment with the Texas Cosmetology Commission (the “Commission”). The trial court granted the Department’s plea

to the jurisdiction. McCollum now

appeals, arguing that the trial court erred by granting the Department’s plea

to the jurisdiction.

BACKGROUND

McCollum

was employed by the Commission as an Investigator/Inspector for 14 years. In December 2004, she filed a complaint with

the Equal Opportunity Commission (the “EEOC”) alleging that she was fired by

the Commission because of her race, age, physical disability, reprisal and

retaliation. In addition, she alleged

that she was “subjected to an extreme hostile work environment and protected

opposition.” The EEOC forwarded the

complaint to the Texas Workforce Commission (the “TWC”) and indicated that the

initial investigation would be conducted by the EEOC.

In August

2005, the EEOC notified McCollum that it had made a preliminary decision to

dismiss the charge. McCollum’s attorney

requested that the EEOC issue McCollum notice of her right to sue so that she

could bring suit in federal court. On

September 7, 2005, the EEOC issued McCollum a “Dismissal and Notice of Rights,”

stating that she was required to bring a lawsuit claiming violations of federal

law within 90 days of her receipt of the notice. On October 26, 2005, the TWC also issued a

“Notice of Right to File Civil Action,” notifying McCollum that she had a right

to bring a lawsuit claiming violations of Texas anti-discrimination laws within

60 days of her receipt of the notice.

McCollum

sued the Commission on December 28, 2005, alleging that the Commission had

improperly fired her from her position as an investigator and that she had been

subjected to a hostile work environment.

McCollum’s petition alleged that the Commission fired her after she had

testified in an affidavit in support of a colleague’s discrimination claim, and

that the Commission discriminated against her on the basis of disability, age,

and race. McCollum’s petition claimed

violations of the federal Americans with Disabilities and Age Discrimination in

Employment Acts, and the Texas Commission on Human Rights Act:

[McCollum] has been

discriminated against due to her disability, in violation of the American’s

[sic] with Disabilities Act of 1990; her age, 58 years (DOB: 09/12/1944), in

violation of the Age Discrimination in Employment of 1967, as amended; her

race, White; and being retaliated against for engaging in protected activity,

in violation of the Texas Commission on Human Rights Act, as amended, now

referred to as Chapter 21 of the Texas Labor Code.

Elsewhere,

her petition again specifically alleged a violation of the Texas Labor Code for

retaliation, and claimed that she was “discriminated against on account of her

age.” Her petition sought attorneys’

fees, injunctive relief, immediate reinstatement, back pay, forward pay,

liquidated damages, and compensatory and non-compensatory damages.

McCollum’s

petition also recited that she had complied with all conditions precedent to

bring her suit, including filing charges of discrimination with the United

States Equal Employment Opportunity Commission (the “EEOC”) and the TWC’s Civil

Rights Division, and that the TWC had issued her Notice of Right to Sue on

October 26, 2005.

The

appellate record reflects that citation was issued to the Attorney General of

Texas on December 28, 2005, and was returned as executed by service via

certified mail on January 5, 2006 by Deputy Jacqueline Trinidad. Citation to the Commission was issued on

December 28, 2005. The return of service

upon the Commission stated that it was mailed via certified mail by delivery to

a messaging service on January 23, 2006, again from Deputy Trinidad.

In August

2006, the Department answered and appeared, [1] raising affirmative

defenses, including limitations. The

Department subsequently filed a plea to the jurisdiction. The Department’s plea to the jurisdiction

asserted that the trial court lacked jurisdiction over McCollum’s federal

claims because these claims were barred by sovereign immunity, and that the

trial court similarly lacked jurisdiction over McCollum’s state law claims

because these claims were not filed within the 60-day deadline after McCollum

was notified of her right to sue. The

Department argued that the evidence showed that McCollum received notice of her

right to sue from the EEOC on September 7, 2005, and since she did not file

suit until December 28, 2005—112 days later—her claims were barred. Although it was not the main thrust of the

plea to the jurisdiction, the Department also cited one case for the

proposition that, in order to be timely, an employment discrimination petition

must be filed and served within 60 days after a plaintiff receives notice of a

right to sue from the Texas Workforce Commission, which McCollum alleged she

received October 31, 2005. See Tex.

Lab. Code Ann . § 21.254 (Vernon 2006); Sibley v. Kaiser Found. Health Plan of Tex. , 998 S.W.2d 399, 405

(Tex. App.—Texarkana 1999, no pet.). Finally, the Department argued that McCollum’s

claim of a “hostile work environment” should be dismissed because the EEOC

charge indicated that the actions of which she was complaining took place upon

a single day—June 7, 2004.

McCollum

responded to the Department’s plea by abandoning her federal claims, stating

that “in this case, the [Department] is being sued under the Texas

anti-discrimination statute. . . . No

federal claims are being brought against the [Department].” Accordingly, she contended that the doctrine

of sovereign immunity did not bar her claims under the Texas Labor Code. Similarly, she argued that her claims were

timely because she had received notice of her right to file a civil action from

the TWC on October 31, 2005. She

conceded that she had received a notice of her right to sue from the EEOC on

September 7, 2005, but argued that the timing of the notice of her right to sue

on her federal claims was irrelevant to whether her claims under state law were

timely. McCollum’s response did not

address the issue of whether the Department had been timely served.

The trial court granted the

Department’s plea to the jurisdiction.

ANALYSIS

A. Standard of Review

A plea to the jurisdiction challenges

the trial court’s subject matter jurisdiction to hear the case. Bland

Indep. Sch. Dist. v. Blue , 34 S.W.3d 547, 554 (Tex. 2000). Subject matter jurisdiction is essential to

the authority of a court to decide a case and is never presumed. Tex.

Ass’n of Bus. v. Tex. Air Control Bd. , 852 S.W.2d 440 , 443­­–44 (Tex. 1993).

The plaintiff has the burden to allege

facts affirmatively demonstrating that the trial court has subject matter

jurisdiction. Id . at 446.

The existence of subject matter

jurisdiction is a question of law. State Dep’t of Hwys. & Pub. Transp. v.

Gonzalez , 82 S.W.3d 322, 327 (Tex. 2002). Therefore, we review the trial court’s ruling

on a plea to the jurisdiction de novo. Id . When a plea to the jurisdiction challenges the

existence of jurisdictional facts, the trial court must consider relevant

evidence submitted by the parties. Tex. Dep’t of Parks & Wildlife v.

Miranda , 133 S.W.3d 217, 227 (Tex. 2004). If the evidence creates a fact question

regarding jurisdiction, the trial court cannot grant the plea to the

jurisdiction, and the fact issue will be resolved by the fact-finder; however,

if the relevant evidence is undisputed or fails to raise a fact question on the

jurisdictional issue, the trial court rules on the plea as a matter of law. Id .

at 227-28.

In deciding a plea to the

jurisdiction, a court may not consider the merits of the case, but only the

plaintiff’s pleadings and the evidence pertinent to the jurisdictional inquiry.

County

of Cameron v. Brown , 80 S.W.3d 549, 555 (Tex. 2002). In conducting our review, we take as true all

evidence favorable to the nonmovant and indulge every reasonable inference and

resolve any doubts in the nonmovant’s favor. Miranda ,

133 S.W.3d at 228 . If the pleadings do

not affirmatively demonstrate the trial court’s jurisdiction but, likewise, do

not demonstrate incurable defects in jurisdiction, the issue is one of pleading

sufficiency and the plaintiff should be afforded the opportunity to amend. Id .

at 226-27. However, if the pleadings

affirmatively negate the existence of jurisdiction, then a plea to the

jurisdiction may be granted without allowing the plaintiff an opportunity to

amend. Id . at 227.

B. Texas

Labor Code 21.254

On appeal, McCollum contends that the

trial court erred in granting the Department’s plea to the jurisdiction. McCollum argues that the Department’s claims

of sovereign immunity to federal discrimination claims are irrelevant because

she sued under Texas law, and that her suit was timely filed 57 days after she

received notice from the TWC of her right to sue on her state law

discrimination claims. We note that

McCollum has apparently abandoned her claims relating to federal

anti-discrimination laws. Accordingly,

we focus on her state law claims under the Texas Labor Code.

As to whether she timely served the

Attorney General and the Commission, McCollum argues that it was the

Department’s burden, not hers, to prove whether service of process was

diligent. She apparently concedes that neither

the Attorney General of Texas nor the Commission was served within the 60 days

after she received notice of her right to bring a lawsuit from the TWC, but

maintains that, because the Department did not demonstrate a lack of diligence

in service, the date of service relates back to the date her lawsuit was

filed. Alternatively, she argues that a

question of fact as to diligence precluded the granting of the plea to the

jurisdiction and that limitations is not a jurisdictional bar to her suit. Finally, McCollum argues that her complaint

of a hostile work environment should not have been dismissed because she gave

adequate notice of that claim in her EEOC complaint and exhausted her

administrative remedies with regard to the complaint, as well as her other

claims of discrimination.

In response, the Department has

abandoned its argument that McCollum’s petition was not timely filed. Instead, the Department’s appellate briefing

now focuses upon the fact that McCollum’s petition was not timely served within

60 days of the date she alleged receipt of the notice of her right to sue from

the TWC. The Department contends that

timely filing and service are jurisdictional prerequisites to suits under

Section 21.254, and the trial court thus correctly granted its plea to the

jurisdiction. The Department argues

that, because it pled the affirmative defense of limitations, and cited the

requirement that citation must be served within 60 days of receiving notice of

right to sue from the TWC, the burden then shifted to McCollum to establish

diligence in service.

The Texas Commission on Human Rights

Act (the “TCHRA,” codified in Chapter 21 of the Texas Labor Code) makes it

unlawful for an employer to discriminate against an employee with respect to

compensation or the terms, conditions, or privileges of employment because of

race, color, disability, religion,

sex, or national origin. Tex.

Lab. Code Ann . § 21.051 (Vernon 2006). Before filing suit, a plaintiff must file a

complaint with the TWC or EEOC and receive a notice of right to sue on the

claims alleged. See id . §§ 21.201–.202. Once that notice of right to sue is received,

the plaintiff must then file suit within 60 days. Id .

§ 21.254. Texas courts have interpreted

section 21.254 to mean that a plaintiff must file the suit and serve notice of

the suit upon the proper parties within 60 days of receiving of notice of a

right to sue from the TWC. See, e.g. , Tarrant County v. Vandigriff , 71 S.W.3d 921, 924 (Tex. App.—Fort

Worth 2002, pet. denied) (“The mere filing of a lawsuit is not sufficient to

meet the requirements of ‘bringing suit’ within the limitations period [of

Chapter 21]; rather, a plaintiff must both

file her action and have the

defendant served with process.”) (emphasis in original); Davis v. Educ. Serv. Ctr ., 62 S.W.3d 890 , 893 n.4 (Tex. App.—Texarkana

2001, no pet.); Roberts v. Padre Island

Brewing Co ., 28 S.W.3d 618, 621 (Tex. App.—Corpus Christi 2000, pet.

denied);

We first address McCollum’s claim

that the time limit imposed by section 21.254 and case law is not

jurisdictional. “To determine whether a

statutory requirement is jurisdictional, we apply statutory interpretation

principles.” City of DeSoto v. White , 288 S.W.3d 389, 394 (Tex. 2009). We review this question de novo. Id . “As with any statutory provision, our goal is

to ascertain legislative intent by examining the statute’s plain language.” Id . We also look for “the presence or absence of

specific consequences for noncompliance.” Id .

at 396. “‘[W]hen the Legislature

includes a right or remedy in one part of a code but omits it in another, that

may be precisely what the Legislature intended’ and ‘we must honor that

difference.’” Id . (citations omitted).

Finally, we look to “the consequences that result from each possible

interpretation.” Id . at 397.

Section 21.254 is part of a larger

statutory scheme requiring a plaintiff to notify the Texas Commission of Human

Rights within 180 days of an alleged violation, thus allowing the Commission an

opportunity to promptly investigate the alleged violation. See,

e.g. , Tex. Lab. Code Ann . §§

21.201—.202; .204. Section 21.202(b)

mandates that “The commission shall dismiss an untimely complaint.” Id .

§ 21.202(b). This 180-day is mandatory

and, “failing to comply deprives the court of subject matter jurisdiction.” Schroeder

v. Tex. Iron Works, Inc. , 813 S.W.2d 483 , 485–86 (Tex. 1991).

After the Commission has an

opportunity to investigate the complaint, the plaintiff may then request a

“right to sue” letter be issued. Tex. Lab. Code Ann . § 21.252. Section 21.254, entitled “Civil Action by

Complainant,” then states that “[w]ithin 60 days after the date a notice of the

right to file a civil action is received, the complainant may bring a civil

action against the respondent.” Id . § 21.254.

Nothing in the language of section

21.254 indicates that the 60-day period for filing and serving the suit is

jurisdictional. See, e.g. , City of DeSoto ,

288 S.W.3d at 396 (reviewing the statute at issue in that case and, in the

absence of language that it was intended to be jurisdictional, finding that it

was not). Unlike section 21.202, section

21.254 does not mandate that a suit that is filed and served beyond the 60-day

window must be dismissed. In light of

the Supreme Court of Texas’ guidance in City

of DeSoto that we should be “reluctant to conclude that a provision is

jurisdictional, absent clear legislative intent to that effect,” we hold that

section 21.254’s 60-day period is not jurisdictional. [2] 288 S.W.3d at 393 .

CONCLUSION

Because section 21.254 is not

jurisdictional, the trial court erred by granting the Department’s plea to the jurisdiction. We reverse the trial court’s judgment and

remand this case for further proceedings.

George C. Hanks, Jr.

Justice

Panel consists of Justices Jennings, Hanks, and Bland.

[1] The

Department’s pleadings—below and on appeal—point out that the Department is a

separate entity from the Commission, and that the Department was never

“formerly known as” the Commission.

Instead, the Department assumed the duties and powers of the Commission

after the Texas Legislature abolished the Commission, effective September 1,

2005. See Tex. S.B. 411, 79 th Leg. R.S. (2005).

[2]

The Legislature has elsewhere mandated that

“statutory prerequisites,” such as notice, “are jurisdictional requirements in

all suits against a governmental entity.” Tex.

Gov. Code. Ann . § 311.034 (Vernon Supp. 2006). We agree with other courts, however, that

section 21.254’s 60-day filing period is not “an act that must be performed

prior to filing suit and so is not a statutory prerequisite.” See Tex. Dep’t of Crim. Justice v. Guard ,

No. 10-06-00065-CV, 2007 WL 1119572 (Tex. App.—Waco April 11, 2007, no pet.)

(mem. op.); see also Mission Consol. I.S.D. v. Garcia , No.

13-09-00458-CV, 2010 WL320153 (Tex. App.—Corpus Christi Jan. 28, 2010); Windle v. Mary Kay, Inc ., No.

05-02-00252-CV, 2003 WL 21508782 , at * 1–2 (Tex. App.—Dallas July 1, 2003, pet.

denied) (mem. op.) (stating that section 21.254 does not establish a

jurisdictional bar; instead, it merely affects a plaintiff's right to maintain

suit under the TCHRA) (citing Lottinger

v. Shell Oil Co. , 143 F. Supp. 2d 743, 753 (S.D. Tex. 2001) (interpreting

the TCHRA)); Dubai Petroleum Co. v. Kazi ,

12 S.W.3d 71 , 76–77 (Tex. 2000) (holding that section 71.031 of the Texas Civil

Practice and Remedies Code is not a jurisdictional bar but affects a plaintiff’s

right to maintain a suit)); Tex. Dep’t of

Transp. v. Beckner , 74 S.W.3d 98, 103 (Tex. App.—Waco 2002, no pet.) (holding

that 40-day filing period in worker’s compensation case is not mandatory, not

jurisdictional).