University of Texas and Ellen Wartella v. Paula Poindexter

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-04-00806-CV

University of Texas and Ellen Wartella, Appellants

v.

Paula Poindexter, Appellee

FROM COUNTY COURT AT LAW NO. 2, TRAVIS COUNTY

NO. 265157, HONORABLE ORLINDA NARANJO, 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

I agree with the majority that the trial court lacked jurisdiction to consider

Poindexter's employment discrimination claims based on chapter 106 of the civil practice and

remedies code. See Tex. Civ. Prac. & Rem. Code Ann. §§ 106.001 -.004 (West 2005); Wright

v. Texas Comm'n on Human Rights , No. 03-03-00710-CV, 2005 Tex. App. LEXIS 5904 (Tex.

App.--Austin July 27, 2005, pet. dism'd) (mem. op.). Because the majority fails to recognize or

address the breadth of Poindexter's evidence filed in response to the University's plea to the

jurisdiction, disregarding our standard of review and the trial court's fact-finding function, I

respectfully dissent to the remaining portions of the opinion reversing the trial court's order as to

Poindexter's retaliation and disparate-impact claims.

In light of the standard of review and the Supreme Court's clarifying decision this

week in Ricci v. DeStefano , 557 U.S. ___ , 2009 U.S. LEXIS 4945 (2009), at a minimum,

Poindexter--the appellee in this interlocutory, accelerated appeal that has been pending in this Court

for over four years--should be given the opportunity to amend her pleadings to cure the

jurisdictional defects found by this Court. See County of Cameron v. Brown , 80 S.W.3d 549, 555

(Tex. 2002).

In reaching its holding that the trial court lacked jurisdiction because Poindexter did

not comply with the 180-day statutory period for filing her retaliation and disparate-impact claims,

see Tex. Lab. Code Ann. §§ 21.201 , .202 (West 2006); Specialty Retailers, Inc. v. DeMoranville ,

933 S.W.2d 490, 492 (Tex. 1996) (compliance with 180-day statutory period jurisdictional

prerequisite to bringing suit), the majority--without recognizing or addressing Poindexter's affidavit

with attached documents--concludes that the relevant jurisdictional evidence concerning the timing

and content of Poindexter's communications with the EEOC is undisputed and conclusive. After

deeming the evidence undisputed, the majority then concludes that the "undisputed evidence shows

as a matter of law that Poindexter did not timely file a retaliation charge with the EEOC" and that

her "communications with the EEOC did not satisfy the legal requirements for exhausting a

disparate-impact charge."

Based on our standard of review of a plea to the jurisdiction as delineated by the

Texas Supreme Court that we "take as true all evidence favorable to the nonmovant" and "indulge

every reasonable inference and resolve any doubts in the nonmovant's favor," I would conclude that

Poindexter's evidence filed in response to the plea supports the trial court's jurisdiction to consider

her retaliation and disparate-impact claims. See Texas Dep't of Parks & Wildlife v. Miranda ,

133 S.W.3d 217, 228 (Tex. 2004).

Evidence in Response to Plea to the Jurisdiction

The evidence Poindexter filed in response to the plea to the jurisdiction included an

affidavit from Poindexter with attachments and an affidavit from an expert on employment

discrimination, Bill Hale, a former executive director of the Texas Commission on Human Rights

and other human rights commissions, with attachments. Poindexter averred in relevant part:

4. I telephoned the EEOC office in San Antonio and from that conversation I

understood that I could initiate the complaint by filing a brief letter to be

followed by a more detailed letter. That telephone call was the first of more

than a dozen contacts, which included telephone calls, written

correspondence, and a personal visit that I had with the EEOC over a

12-month period.

5. I filed my complaint by letter dated May 2, 2001. This letter set my

discrimination complaint in motion. In this letter, I referenced retaliatory

actions such as being "blocked from applying for and participating in

professional and leadership opportunities," not receiving performance

evaluations, and not receiving merit increases commensurate with my

performance. (May 2, 2001 Letter to EEOC). This is my original charge that

I sent to the EEOC.

6. I amended my complaint by letter dated May 23, 2001. . . . (May 23, 2001

Letter to EEOC). This is the amended charge that I sent to the EEOC.

7. [In my letter dated May 23, 2001], I have a more comprehensive disparate

treatment example, plus a reference to disparate impact, "Since 1992, six

males (five white and one Brazilian) have become full professors in the

Department of Journalism. Four were promoted from associate to full

professor, including one who was promoted the year before my promotion

was denied. During that same time period, no women and no

African-Americans have been promoted to the full professor rank. Statistics

from the Office of Institutional Studies would indicate that this pattern can

be found throughout the University of Texas at Austin. After sending this

letter, the EEOC conducted a disparate impact analysis. By letter dated

February 6, 2002, Defendants indicate that they are responding to a January

25, 2002 request from the EEOC in which the EEOC asked for a list showing

all associate professors within the University of Texas at Austin who have

sought promotion to professor between the dates April 1, 1999 and January

25, 2002. Defendants were asked to specify the name, race, date of hire,

department, college, date(s) the individual applied for promotion to professor,

and final decision concerning each promotion application. . . .

8. Retaliation is also referenced on page 3 of my May 23, 2001 letter to the

EEOC when I said: "I would like to report that the discriminatory practices

toward me have stopped but that is not the case." I informed the EEOC that

I had been excluded from a Budget Council meeting even though I was an

elected member of the Budget Council. I also reference the fact that I had not

been allowed to apply for the director of the department.

* * *

10. The August 16, 2001 letter from the EEOC prompted me to send additional

information to the EEOC on October 5, 2001. In my letter, I gave evidence

of disparate treatment within the Journalism Department and College of

Communication and disparate impact across the University. I referenced a

University of Texas System Report that explicitly discussed disparate

treatment of minorities, including African-Americans, in the promotion

process. Furthermore, I provided a very detailed description of more than 10

retaliatory actions taken against me. . . .

11. After I received a Notice of a Right to Sue, which closed my case, I visited

Marie Minks, the Federal Investigator in San Antonio, where I was permitted

to review the complete EEOC File #360A11118 to identify documents that

I wanted to have copied. The EEOC had in its possession documents from

more than 100 promotion dossiers representing every UT department and

college for a three-year period that had considered the promotion of an

associate professor. I also was able to review the correspondence between

UT and the EEOC, including the questions the EEOC asked UT in order to

conduct their analysis, (January 25, 2002 Letter from Marie Minks to Linda

Millstone), statements from UT's EEOC officer Linda Millstone

(August 2, 2001 Letter from Linda Millstone to Marie Minks), the president,

the provost, the dean of the College of Communication, the dean of the

graduate school, the vice president of research, and the chairs of journalism

and advertising. . . .

12. After completing my review of the documents at the EEOC, I informed the

EEOC investigator Marie Minks that the official charge form that had

originally been written up by EEOC had not included retaliation, but should

have, given that I'd raised these issues in my letters of May 2, 2001 and

May 23, 2001. Ms. Minks responded by having me complete and sign an

affidavit to the effect that my charge of retaliation had been overlooked by the

EEOC, which I concluded would address their oversight in the original

discrimination charge. This occurred on May 7, 2002. The EEOC then

issued a Charge and Notice of a Right to Sue Notice for Retaliation. I

followed the instructions from the EEOC officer, as I understood them, and

filed the Notices of the Right to Sue documents with the Texas Commission

on Human Rights. The Texas Commission on Human Rights issued a Notice

of Right to File a Civil Action for EEOC Complaint #360A11118

(Discrimination based on race) and EEOC Complaint #360A201036

(Retaliation) on June 25, 2002.

Attached to Poindexter's affidavit were the following documents: (i) a letter dated

March 23, 2001, from Poindexter to the University, concerning her disagreement with the decision

denying her promotion and referencing "misrepresentations" and "irregularities in the promotion

process" and her letter in 1996 to the president of the University expressing similar concerns; (ii)

a letter dated April 3, 2001, from the University, responding to Poindexter's letter and attaching

a copy of the section of the University's Handbook of Operating Procedures concerning

promotion guidelines; (iii) a letter dated May 2, 2001, from Poindexter to the EEOC, (iv) a letter

dated May 23, 2001, from Poindexter to the EEOC, referencing and enclosing the promotion

guidelines from the handbook of operating procedures, the "letter of complaint" that she sent to the

University, and other documents, and stating that the "enclosed letter that I sent to the [University]

documents my complaint," and (v) a letter dated October 5, 2001, from Poindexter to the EEOC,

with attached additional documents.

Poindexter included documents with her letter dated May 23, 2001, and attached a

"List of Enclosed Documents":

1. EEOC Information Sheet

2. Names and contact information for people involved in the promotion process

3. Executive summary prepared for dossier

4. Curriculum Vita

5. A review of [Poindexter's] co-authored book . . .

6. Letter of complaint to provost which was copied to the president

7. Document that records vote on [ ] promotion . . .

8. Dean's letter

9. Chair's letter

10. Budget Council's letter and summaries . . .

11. Letter from Department of Advertising chair . . .

12. Letters from external reviewers

13. Letter from chair of Faculty Grievance Committee to University's EEOC

officer

14. Provost's response to [ ] letter of complaint

15. Promotion guidelines from Handbook of Operating Procedures. (1)

Poindexter similarly enclosed documents with her letter dated October 5, 2001, and

included a list of those documents:

Attachment #1: May 3, 1999 Memorandum from President Larry Faulkner on

University of Texas at Austin Promotion Standards

Attachment #2: May 18, 1992 Offer Letter

Attachment #3: Office of Institutional Studies Chart on Faculty

Characteristics

Attachment #4: Letters, Memos, and Historical Background on the African-Americans and the Media Lecture Series . . .

Attachment #5: Memos, Letters, Notes and Other Documents from the 1995

Journalism Department Chair Search

Attachment #6: Memo and Press Release Announcing the Appointment of

Associate Professor of Speech to the Chair of the Department

Attachment #7: Confirmation fax and Proposal for Brazil seminar

Attachment #8: Salary Documents for Senior Lecturer and Tenured Associate

Professor Appointments

Attachment #9: A Cohort Analysis of Salaries and Salary Rankings for

1992-93 Assistant and Associate Professors in Journalism

Attachment #10: Personal Memo for Meeting with Dean Ellen Wartella,

November 4, 1993

Attachment #11: Documentation on the Prairie View A&M University Visit

Attachment #12: Q&A with Dr. Berdahl on Appointment of Ellen Wartella as

Dean of College of Communication

Attachment #13: June 14, 1994 letter from Journalism's Standard 12/Minority

Affairs Committee on Discriminatory Practices Against

Minority Students

Attachment #14: Excerpts from August 7, 1995 University of Texas System

Report of the Committee on the Advancement of Minorities ,

March 3, 1997 Article, "The Unheard Voices: Faculty Speak

Out about the Impact of Hopwood on the University of

Texas"

Attachment #15: E-Mail from Paula Poindexter to Dr. Maxwell McCombs

Discussing Why Dean Ella Wartella Said Her Promotion Was

Denied. (2)

As to the expert's affidavit, Hale averred in relevant part:

My name is Bill Hale. I have 26 years of experience in enforcing laws prohibiting

employment discrimination as Executive Director of Human Rights Commissions

including the Fort Worth, Texas, Commission and the Texas Commission on Human

Rights. . . .

* * *

On May 2, 2001, the Plaintiff submitted a letter to the U.S. Equal Employment

Opportunity Commission (EEOC) setting forth in particular detail a series of adverse

personnel actions including denial of promotion to professor she believed were

discriminatory because of her race, African-American/Black. On May 23, 2001, the

Plaintiff submitted a second letter to EEOC in part alleging that discriminatory

personnel actions were continuing subsequent to her communications with the

Provost and the EEOC office, including but not limited to [the] denial of the

opportunity to apply or be appointed to the position of associate chair of the

Journalism Department.

The contents of these two letters are sufficiently specific to allege employment

discrimination on the basis of race and retaliation. Both letters were submitted to

EEOC within the 180 days from the date of the Defendant's alleged series of adverse

personnel actions. Even though the EEOC did not perfect [the] charges until

June 8, 2001 and May 7, 2002, the correspondence between the Plaintiff and EEOC

was sufficient to trigger the administrative processing of charges of employment

discrimination within 180 days from the date of the Defendant's adverse personnel

actions. Even if EEOC failed to incorporate retaliation in the original perfected

charge signed by the Plaintiff on June 8, 2001, according to Sanchez v. Standard

Brands, Inc.,[ (3) ] the retaliation charge could reasonably be expected to grow out of the

Plaintiff's original charge based on the correspondence submitted to EEOC on

May 7, 2001 and May 23, 2001.

* * *

In her letter dated May 23, 2001 to EEOC, the Plaintiff raised the inference of

disparate impact. EEOC acknowledged this inference during its investigation.

EEOC requested that the Defendant provide[ ] information regarding the racial

composition of professors at the University of Texas at Austin. The Defendant

provided this information. However, before EEOC could analyze the information

according to the formula set forth in the EEOC Employee Selection Guidelines

(80% rule) to determine any measurable disproportionate impact based on race, the

Plaintiff requested the Right to Sue letter.

Hale also averred to the elements for each of Poindexter's claims. As to the prima facie case for

disparate impact, Hale averred that Poindexter was "not required to statistically establish this impact.

Such an analysis is done during the administrative investigation." Hale concluded that Poindexter

"established the elements of a prima facie case for both disparate treatment and disparate impact as

well as retaliation for purposes of filing a charge under Title VII and Chapter 21." Attached to

Hale's affidavit was his preliminary expert report. (4)

Retaliation

In reaching its conclusion that Poindexter did not timely file a retaliation claim, the

majority concludes that the May 2002 charge raising retaliation was not timely and limits its review

to the language found in the body of Poindexter's May 2001 letters and the June 2001 charge. See

Tex. Lab. Code Ann. § 21.055 (West 2006). (5) The majority relies on the omission of the word

"retaliation" or an appropriate "synonym" in Poindexter's May 2001 letters and the verification of

her June 2001 charge, concluding that she "knew (and should have protested, if appropriate) the

charge's contents long before she reviewed her EEOC file in mid-2002." The majority further

concludes that section 21.201(f) of the labor code does not authorize relating the May 2002 charge

back to the May 2001 letters or the June 2001 charge. See id . § 21.201(f). (6) The majority states that

it has found no authority that "a later, separate charge" can relate back to an "earlier, perfected

charge in its pre-perfected form" to support relation back to the letters and that the subject of

retaliation does not relate to or arise from "the subject matter" of the June 2001 charge or the

May 2001 letters. See id .

I would conclude that subsections (e), (f), and (g) of section 21.201 authorize the

May 2002 charge to relate back to Poindexter's May 2001 letters, as "original complaints," that were

filed with the EEOC within the 180 days statutory period and that, indulging every reasonable

inference and resolving any doubts in Poindexter's favor, Poindexter's complaints in her letters to

the EEOC with their respective attached documents included retaliation. See id . §§ 21.201(e), (f),

(g), (7) 21.055; Fellows v. Universal Rests., Inc ., 701 F.2d 447, 450 (5th Cir. 1983) (underlying policies

not served "by limiting judicial relief to technical niceties of the language used by an often unlettered

and unsophisticated employee in filing his or her initial grievance with EEOC"); Sanchez v. Standard

Brands, Inc ., 431 F.2d 455, 465 (5th Cir. 1970) ("[S]pecific words of the charge of discrimination

need not presage with literary exactitude the judicial pleadings which may follow."); City of Waco

v. Lopez , 259 S.W.3d 147, 151-52 (Tex. 2008) ("[A]ctionable retaliation exists when an employer

makes an adverse employment decision against an employee who voices opposition to conduct made

unlawful under the CHRA, regardless of whether the employee has already filed a formal complaint

with the Commission."); Hennigan v. I.P. Petroleum Co. , 858 S.W.2d 371, 373 (Tex. 1993) (verified

complaint related back to and satisfied any deficiencies in unverified questionnaire that was timely

filed); Texas Tech Univ. v. Finley , 223 S.W.3d 510, 514-15 (Tex. App.--Amarillo 2006, no pet.)

(court, drawing distinction between "original complaint" and "perfected complaint," concludes letter,

the "original complaint," satisfied jurisdictional requirements); Stanley Stores v. Chavana ,

909 S.W.2d 554, 558-59 (Tex. App.--Corpus Christi 1995, writ denied) (complaint related back to

date letter sent to EEOC complaining of employment discrimination).

The practice of the EEOC is to prepare the "formal charge" after receiving the

complaint from the aggrieved employee. See Brammer v. Martinaire, Inc ., 838 S.W.2d 844, 846

(Tex. App.--Amarillo 1992, no writ); see also City of La Joya v. Ortiz , No. 13-06-401-CV,

2007 Tex. App. LEXIS 818 , at *11 n.5 (Tex. App.--Corpus Christi Feb. 1, 2007, no pet.) (mem. op.)

(regular practice for Texas Workforce Commission to prepare formal charge). Poindexter contends

the EEOC mistakenly did not include her retaliation claim in the June 2001 charge even though she

had raised the issue in her May 2001 letters. After being notified by Poindexter of the error, the

EEOC's actions of preparing a subsequent charge of retaliation and issuing a right to sue letter as

to her retaliation claim are consistent with Poindexter's position that her initial complaints--the

May 2001 letters with attachments--raised retaliation within the 180-day statutory period but that

the EEOC mistakenly failed to include retaliation in the June 2001 charge. See Federal Express

Corp. v. Holowecki , 128 S.Ct. 1147, 1160 (2008) ("Documents filed by an employee with the EEOC

should be construed, to the extent consistent with permissible rules of interpretation, to protect the

employee's rights and statutory remedies."); Bartosh v. Sam Houston State Univ ., 259 S.W.3d 317,

321 (Tex. App.--Texarkana 2008, pet. filed) (court to "construe employment discrimination charges

with the 'utmost liberality,' bearing in mind that such charges are generally prepared by laypersons

untutored in the rules of pleading, though requiring that the charge contain an adequate factual basis

so that it puts the employer on notice of the existence and nature of the charges") (citation omitted).

The right to sue letters issued by the EEOC and the TCHR on Poindexter's retaliation

claim are additional support that Poindexter exhausted her administrative remedies as to that claim.

See Ortiz , 2007 Tex. App. LEXIS 818 , at *9 ("[T]he fact that the Texas Workforce Commission

issued a right to sue letter, instead of dismissing the complaint as untimely, is additional

evidence that the complaint was timely filed."); Westbrook v. Water Valley Indep. School Dist .,

No. 03-04-00449-CV, 2006 Tex. App. LEXIS 3845 , at *10 (Tex. App.--Austin May 5, 2006, pet.

denied) (mem. op.) ("Although an employee is not required to obtain a right to sue letter prior to

filing suit, if the employee has received one, it evidences that she has exhausted her administrative

remedies before the TCHR."); see also Tex. Lab. Code Ann. § 21.202 (b) ("The commission shall

dismiss an untimely complaint.").

I would, therefore, conclude that the trial court could have found that the evidence,

viewed favorably, supports that Poindexter timely filed her initial complaint of retaliation with the

EEOC in May 2001 that was perfected by the May 2002 charge to support the trial court's

jurisdiction. See Worford v. Stamper , 801 S.W.2d 108, 109 (Tex. 1990) (when no findings of fact

or conclusions of law are requested or filed, appellate court implies "that the trial court made all the

findings necessary to support its judgment"). (8)

Disparate Impact

To support its conclusion that Poindexter failed to comply with the 180-day statutory

period for filing a disparate-impact claim, the majority concludes that Poindexter failed to identify

a facially neutral policy in the perfected complaints and in her correspondence to the EEOC.

See Pacheco v. Mineta , 448 F.3d 783, 791 (5th Cir. 2006) ("A disparate-impact plaintiff must show

(1) a facially neutral policy; (2) that, in fact, has a disproportionately adverse effect on a protected

class."); see generally Ricci v. DeStefano , 2009 U.S. LEXIS 4945 (explaining disparate-impact

claims and applying standard in summary judgment context). (9) The majority concludes that her

"administrative charges" "facially" allege only "disparate treatment" and "retaliation," " identif[y]

no neutral employment policy," and complain only of past incidents of "retaliation" and "disparate

treatment," and that her letters to the EEOC in May and October 2001 also failed because she did

not identify a facially neutral policy that "disproportionally harmed black employees." (10)

A complaint to the EEOC is not limited by its express words, but is "limited only by

the scope of the EEOC investigation that could reasonably be expected to grow out of the initial

charges of discrimination." See Fellows , 701 F.2d at 450-51 . The Court of Appeals for the Fifth

Circuit explained the policy reason for this rule:

The Civil Rights Act is designed to protect those who are least able to protect

themselves. Complainants to the EEOC are seldom [represented by] lawyers. To

compel the charging party to specifically articulate in a charge filed with the

Commission the full panoply of discrimination which he may have suffered may

cause the very persons Title VII was designed to protect to lose that protection

because they are ignorant of or unable to thoroughly describe the discriminatory

practices to which they are subjected. . . . [A] cause of action for Title VII

employment discrimination may be based, not only upon the specific complaints

made by the employee's initial EEOC charge, but also 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.

Id . (internal citations omitted). Additionally, a disparate-impact claim may be based upon the

"decision-making process" as the challenged "employment practice." See Tex. Lab. Code Ann.

§ 21.122 (c) (West 2006) ("decision-making process may be analyzed as one employment practice"

when "elements of a respondent's decision-making process are not capable of separation for

analysis"); (11)

see also 42 U.S.C. §2000e-2(k)(1)(B)(i) (2009); Ricci , 2009 U.S. LEXIS 4945, at *34 .

With these principles in mind, I turn then to a review of the evidence to determine if it supports a

finding that an investigation of disparate impact based upon "a particular employment practice"

of the University "could reasonably be expected to grow out" of Poindexter's initial charges.

See Tex. Lab. Code Ann. § 21.122 ; Miranda , 133 S.W.3d at 228 ; Fellows , 701 F.2d at 450-51 .

During the 180-day statutory period, Poindexter provided the EEOC with copies of

the University's promotion guidelines from the handbook of operating procedures and her letter to

the University documenting her complaint. She addressed the promotion process in her letter dated

May 23, 2001, and quoted statistics showing a similar pattern throughout the University adverse to

women and African-Americans. In the letter, she states:

Since 1992, six males (five white and one Brazilian) have become full professors in

the Department of Journalism. Four were promoted from associate to full professor,

including the one who was promoted the year before my promotion was denied.

During that same period, no women and no African-Americans have been promoted

to the full professor rank. Statistics from the Office of Institutional Studies would

indicate that this pattern can be found throughout The University of Texas at Austin.

During the EEOC investigation, Poindexter provided the EEOC with a copy of the

Report of the Committee on the Advancement of Minorities that states as to the University's

guidelines:

Although there are System-wide guidelines for granting promotions and tenure, the

component institutions--and often smaller academic units (schools, colleges,

divisions, etc.)--set forth their own specific criteria for meeting the guidelines.

Based on interviews with faculty, it is apparent to the Committee that criteria often

are not clear or explicit. In addition, interpretation of the criteria is not uniform,

often being left to department heads and deans. Further, criteria are often very

general and easily lead to interpretations that may exclude minorities. Thus, while

the written criteria may not be discriminatory, the unspoken judgments and

interpretations may have that effect. (12)

Hale averred that the EEOC acknowledged Poindexter's "inference [of disparate impact] during its

investigation" based on the fact that the "EEOC requested that the Defendant provide[ ] information

regarding the racial composition of professors at the University of Texas at Austin." Two categories

of information that the EEOC requested from the University were:

1. A list showing all Associate Professors within the University of Texas at

Austin who have sought promotion to Professor between the dates

April 1, 1999 and January 25, 2002. For each individual listed, please

provide name, race, date of hire, department, college, date(s) that the

individual applied for promotion to Professor, and final decision concerning

each promotion application.

2. For each individual identified in the list of applicants for promotion to full

Professor, please provide a copy of each recommendation statement from the

appropriate Department Budget Council, Department Chairman/Director, and

Dean; and a copy of each "Recommendation for Change in Academic

Rank/Status" form.

The majority's conclusion that the trial court did not have jurisdiction because Poindexter failed to

identify a neutral policy in her administrative charge improperly disregards evidence favorable to

Poindexter, delving into the merits of her disparate-impact claim. See Bland Ind. Sch. Dist. v. Blue ,

34 S.W.3d 547, 554 (Tex. 2000). Based on the evidence before the trial court, I would conclude that

the trial court could have found that the evidence favorable to Poindexter supports a finding that an

investigation of disparate impact based on a "particular employment practice" of the University or

its "decision-making process" for promotions "could reasonably be expected to grow out of [her]

initial charges of discrimination." See Tex. Lab. Code Ann. § 21.122 ; Miranda , 133 S.W.3d at 228 ;

Fellows , 701 F.2d at 450-51 . (13)

The majority finds Pacheco "highly instructive" in reaching its holding "that, as a

matter of law, Poindexter's communications with the EEOC did not satisfy the legal requirements

for exhausting a disparate-impact charge." Pacheco is distinguishable on its facts. In Pacheco , the

Court of Appeals for the Fifth Circuit affirmed the dismissal of the plaintiff's disparate-impact claim

for failure to exhaust administrative remedies, but the court sets forth the appropriate analysis as

fact-intensive: "We engage in fact-intensive analysis of the statement given by the plaintiff in the

administrative charge, and look slightly beyond its four corners, to its substance rather than its label."

448 F.3d at 789 . In contrast to the correspondence between Poindexter and the EEOC, the plaintiff

in Pacheco was sent a letter notifying him of the claim that was accepted for investigation (14) and that

"if he objected to the way his claim was stated, he should contact the Office within five days"; the

plaintiff did not respond. Id . at 786. The court also did not address conflicting evidence as to the

substance of the "administrative charge" and the "initial charges of discrimination." See, e.g. , id .

at 792 n.15 (newspaper article that acknowledged statistical underrepresentation of Hispanics in

federal agencies not relevant to exhaustion question because "it was not submitted to the EEO, but

was produced by [the plaintiff], after suit was filed in district court").

In conclusion, because the majority disregards evidence favorable to Poindexter, the

non-movant, I concur only in the portion of the opinion reversing the trial court's order as to

Poindexter's claims based on chapter 106 of the civil practice and remedies code and respectfully

dissent to the remaining portions of the opinion reversing the trial court's order on a plea to the

jurisdiction as to Poindexter's retaliation and disparate-impact claims and short-circuiting this

litigant's day in court. (15)

__________________________________________

Jan P. Patterson, Justice

Before Chief Justice Jones, Justices Patterson and Puryear

1. The listed documents are not attached to the letter in the record. Some of the documents

are in the record.

2. Although all of the documents are not included in the record, some of the attachments were

referenced and discussed during the hearing on the plea to the jurisdiction.

3. Sanchez v. Standard Brands, Inc ., 431 F.2d 455 (5th Cir. 1970).

4. The University filed a reply to Poindexter's response to the plea to the jurisdiction,

attaching an affidavit from Linda H. Millstone. She averred:

1. I am currently the Deputy to the Vice President for Employee and Campus

Services and the Director of Employment Opportunity Services at the

University of Texas in Austin . . . .

* * *

6. No language in [the June 2001 charge], or in the communications I received

from the EEOC concerning that charge, reflected any indication that

Dr. Poindexter wished to assert any discrimination claim other than one for

disparate treatment. At no time during the administrative process was I aware

that Dr. Poindexter was asserting a claim of retaliation until the EEOC

provided [the May 2002 charge]. At no time during the administrative

process did I ever see any document reflecting that Dr. Poindexter was

asserting a claim of disparate impact.

The University also attached the EEOC's investigation plan and a letter dated August 16, 2001, from

an EEOC investigator to Poindexter providing the University's stated reasons for denying her

promotion and asking for additional information.

5. Section 21.055 of the labor code states:

An employer, labor union, or employment agency commits an unlawful employment

practice if the employer, labor union, or employment agency retaliates or

discriminates against a person who, under this chapter:

(1) opposes a discriminatory practice;

(2) makes or files a charge;

(3) files a complaint; or

(4) testifies, assists, or participates in any manner in an investigation,

proceeding, or hearing.

Tex. Lab. Code Ann. § 21.055 (West 2006).

6. Section 21.201 of the labor code sets out the requirements for filing an administrative

complaint of employment discrimination. See id . § 21.201 (West 2006). Subsection (f) of this

section states:

(f) An amendment to a complaint alleging additional facts that constitute

unlawful employment practices relating to or arising from the subject matter

of the original complaint relates back to the date the complaint was first

received by the commission.

Id . § 21.201(f).

7. Subsections (e) and (g) of section 21.201 read:

(e) A complaint may be amended to cure technical defects or omissions,

including a failure to verify the complaint or to clarify and amplify an

allegation made in the complaint.

* * *

(g) If 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 perfecting

the complaint is in progress.

Id . § 21.201(e), (g).

8. Turning a blind eye to the evidence, the majority fails entirely to address Poindexter's

affidavit; it only addresses Hale's statements in his affidavit that "the contents of [the May] letters

are sufficiently specific to allege employment discrimination on the basis of race and retaliation" and

that "a retaliation charge could reasonably be expected to grow out of" Poindexter's May

correspondence. As to these statements, the majority concludes that Hale's assertions are legal

conclusions that do not constitute probative evidence. I agree that legal conclusions "with no

supporting facts or rationale" do not constitute probative evidence, but Hale averred in part as an

expert on the EEOC's practices in conducting investigations of employment discrimination claims

and as to the EEOC's particular actions in this case. See McIntyre v. Ramirez , 109 S.W.3d 741, 749

(Tex. 2003). At the hearing on the plea to the jurisdiction, the University objected to Hale's affidavit

in part on the ground that it contained legal conclusions. The trial court overruled the University's

objection "to the extent that the Court will allow the affidavit for the limited purposes of his

expertise of the policies and practices [of the EEOC]. . . . I'm going to allow it for the purposes of

his affidavit, and testimony as it relates to the evaluation of cases, and claims, and a determination

or practice as it relates to this is what the investigation would look like, and this is what they do and

does it cover these issues, but the ultimate issue or legal issue is made by the Court."

9. As the Supreme Court explained,

Title VII prohibits both intentional discrimination (known as "disparate treatment")

as well as, in some cases, practices that are not intended to discriminate but in fact

have a disproportionately adverse effect on minorities (known as "disparate impact").

* * *

Under the disparate-impact statute, a plaintiff establishes a prima facie violation by

showing that an employer uses a "particular employment practice that causes a

disparate impact on the basis of race, color, religion, sex, or national origin."

2009 U.S. LEXIS 4945, at *33-34 (quoting 42 U.S.C. §2000e-2(k)(1)(A)(i) (2009)); see also id. at

*84 (Ginsburg, J., dissenting) ("In assessing claims of race discrimination, '[c]ontext matters.'"

(quoting Grutter v. Bollinger , 539 U.S. 306, 327 (2003))).

10. The majority also concludes that the October 2001 letter was irrelevant in determining

whether Poindexter's charge alleged disparate impact.

11. Section 21.122 of the labor code provides the burden of proof in disparate impact cases

in pertinent part:

(a) An unlawful employment practice based on disparate impact is established

under this chapter only if:

(1) a complainant demonstrates that a respondent uses a particular

employment practice that causes a disparate impact on the basis of

race, color, sex, national origin, religion, or disability and the

respondent fails to demonstrate that the challenged practice is

job-related for the position in question and consistent with business

necessity; or . . .

* * *

(c) To demonstrate that a particular employment practice causes a disparate

impact, the complainant must demonstrate that each particular challenged

employment practice causes a disparate impact, except that if the complainant

demonstrates to the satisfaction of the court that the elements of a

respondent's decision-making process are not capable of separation for

analysis, that decision-making process may be analyzed as one employment

practice.

(d) If the respondent demonstrates that a specific practice does not cause a

disparate impact, the respondent may not be required to demonstrate that the

practice is consistent with business necessity.

Tex. Lab. Code Ann. § 21.122 (West 2006).

12. Consistently, in her briefing to this Court, Poindexter identifies the "six-prong promotion

policy of the University of Texas," and her attorney at the hearing on the plea to the jurisdiction

identified "the criteria used by the University; that those criteria, as a whole . . . that these unwritten,

unknown standards and policies that they use . . . have disparate impact on racial and ethnic

minorities."

13. The trial court also could have concluded that an investigation of retaliation "could

reasonably be expected to grow out of [Poindexter's] initial charges of discrimination" as an

alternative basis for affirming the trial court's denial of the University's plea to the jurisdiction as

to her retaliation claims. See Fellows v. Universal Rests., Inc ., 701 F.2d 447, 450-51 (5th Cir. 1983);

Texas Dep't of Crim. Justice v. Young , No. 09-07-00635-CV, 2008 Tex. App. LEXIS 7350 , at

*17-19 (Tex. App.--Beaumont Oct. 2, 2008, no pet.) (mem. op.) (retaliation claim "factually related

claim [ ] that could reasonably be expected to grow out of" an investigation of the plaintiff's race

and gender discrimination complaints) (citation omitted); City of La Joya v. Ortiz ,

No. 13-06-401-CV, 2007 Tex. App. LEXIS 818 , at *13-15 (Tex. App.--Corpus Christi Feb. 1, 2007,

no pet.) (mem. op.) (retaliation claim stated in intake questionnaire but not alleged in administrative

charge "could be expected to grow out of her charge").

14. The claim stated in the letter was: "Whether the FAA treated you differently, based on

your national origin (Hispanic), when you were not selected for a supervisor's job." Pacheco

v. Mineta , 448 F.3d 783, 786 (5th Cir. 2006).

15. An alternative ground for affirming the trial court as to both the retaliation and the

disparate-impact claims would be to imply that the trial court in its discretion denied the plea to the

jurisdiction to "await a fuller development of the case." See Texas Dep't of Parks & Wildlife

v. Miranda , 133 S.W.3d 217, 227 (Tex. 2004); Worford v. Stamper , 801 S.W.2d 108, 109 (Tex.

1990). The majority concludes that an abuse-of-discretion standard does not apply "because the trial

court did not purport to exercise its discretion in this regard." Because the trial court did not make

findings of fact and conclusion of law, however, we are to affirm the trial court's order denying the

plea to the jurisdiction if it can be upheld on any legal theory that finds support in the evidence.

See Miranda , 133 S.W.3d at 227 ; Worford , 801 S.W.2d at 109 ("The judgment must be affirmed if

it can be upheld on any legal theory that finds support in the evidence.").