NO. 07-02-0017-CV
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL E
NOVEMBER 21, 2002
______________________________
LINDA WORTHAM, APPELLANT
V.
BEAUMONT INDEPENDENT SCHOOL DISTRICT, APPELLEE
_________________________________
FROM THE 172ND DISTRICT COURT OF JEFFERSON COUNTY;
NO. E-158,573; HONORABLE DONALD J. FLOYD, JUDGE
_______________________________
Before QUINN and REAVIS, JJ. and BOYD, S.J.*
Linda Wortham appeals from an order dismissing her suit against Beaumont
Independent School District (BISD) for her claim of racial discrimination and violations of
the Texas Commission on Human Rights Act, Tex. Labor Code Ann. §§ 21.001 through
*
John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by
assignment.
21.306 (Vernon 1996) (hereafter the Act). By her four issues we must decide whether the
trial court erred in granting BISD’s second motion to dismiss on the basis of its assertions
that (1) Wortham failed to establish her prima facie case of race discrimination in violation
of the Act; (2) Wortham failed to exhaust her administrative remedies so as to confer
subject matter jurisdiction on the trial court; (3) Wortham’s claims were barred by
applicable statute of limitations; and (4) Wortham failed to amend her petition in response
to special exceptions. Based upon the rationale expressed herein, we affirm in part and
reverse and remand in part.
By her original petition, Wortham, a white BISD teacher for the previous 15 years,
alleged that in the “past several years” she had applied for approximately 17 counselor
and/or assistant principal positions1 with BISD, but notwithstanding her qualifications and
Texas Education Agency certifications, her applications were denied and the positions
were filled by less qualified black employees. Wortham also alleged that she had filed a
sworn charge of discrimination with the Texas Commission on Human Rights and was
issued a right to sue letter on or about December 30, 1997. She sought damages
including lost wages, mental anguish, and attorney’s fees. Alleging malice, she also
sought punitive damages under the Act.
In addition to a general denial, BISD answered by presenting special exceptions
1
Wortham’s pleading did not identify the 17 positions or provide any dates of her
applications.
2
alleging that Wortham’s petition did not identify the alleged applications and positions
sought or the dates of the alleged discrimination. BISD also plead the affirmative defense
of statute of limitations and a plea to the jurisdiction because of Wortham’s failure to
exhaust administrative remedies. By its second motion to dismiss with prejudice, among
other things, BISD sought dismissal of the action because Wortham had not exhausted her
administrative remedies as required by section 21.201 of the Texas Labor Code and
presented a plea to the jurisdiction. Also, BISD contended that Wortham’s pleadings were
deficient because they did not specifically identify the events the basis of her claims. After
consideration of the motion, the trial court signed an order of dismissal.
Reviewing Wortham’s issues in a logical rather than sequential order, we first
consider her second and fourth issues which address jurisdiction, exhaustion of
administrative remedies, and sufficiency of her pleadings. By her second issue, she
alleges the trial court erred in dismissing her cause on the ground that she failed to
exhaust her administrative remedies and that the trial court did not have subject matter
jurisdiction. By her fourth issue, she contends her pleadings were sufficient
notwithstanding BISD’s special exceptions.
A trial court’s subject matter jurisdiction is determined solely from the good faith
allegations in the plaintiff’s pleadings, see City of Austin v. Ender, 30 S.W.3d 590, 593
(Tex.App.--Austin 2000, no pet.), and the plaintiff has the burden to allege facts that
affirmatively demonstrate the court’s jurisdiction to hear the case. Richardson v. First
3
National Life Insurance Co., 419 S.W.2d 836, 839 (Tex. 1967). In addition to the petition,
we look to the plaintiff’s response to a plea to the jurisdiction and in the absence of
allegations and evidence of fraud, the plaintiff’s good faith allegations are taken as true.
See Ender, 30 S.W.3d at 593. Finally, unless the pleadings affirmatively show the
absence of jurisdiction, we construe the petition liberally in favor of jurisdiction and review
the trial court’s determination de novo. Id; see also Mayhew v. Town of Sunnyvale, 964
S.W.2d 922, 928 (Tex. 1988).
Wortham concedes that in order to sue for the alleged discrimination and violations
of the Act, she must first exhaust her administrative remedies by filing a charge of
discrimination with the Commission. Here, however, she claims that her complaint signed
April 17, 1997, and letter of right to sue of December 30, 1997, demonstrated sufficient
compliance. Section 21.201 provides in part:
(a) A person claiming to be aggrieved by an unlawful employment practice
or the person’s agent may file a complaint with the commission.
(b) The complaint must be in writing and made under oath.
(c) The complaint must state:
(1) that an unlawful employment practice has been committed;
(2) the facts on which the complaint is based, including the date, place,
and circumstances of the alleged unlawful employment practice; and
(3) facts sufficient to enable the commission to identify the respondent.
(Emphasis added). Under section 21.202(a) a complaint must be filed not later than the
4
180th day after the date the alleged unlawful employment practice occurred and under
section 21.256, a civil action may not be brought later than the second anniversary of the
date the complaint relating to the action is filed. Accordingly, we review Wortham’s
pleadings and her response to the motion to dismiss to determine if she filed the required
complaint of discrimination within 180 days of the occurrences of alleged unlawful
employment practice.
Although Wortham’s petition alleges that in the “past several years” her applications
for 17 positions were unlawfully denied, the petition does not identify the positions by
school, title, or otherwise, and does not provide the dates of the alleged unlawful
employment practices. Wortham’s complaint signed on April 17, 1997, and filed with the
Commission and attached to her petition states that she had “applied for several open
counselor and assistant principal positions with BISD,” but does not provide the dates,
places, or circumstances as required by section 21.201.2 However, in her response to
BISD’s motion to dismiss, Wortham asserts that her application for employment as a
counselor at Fehl Elementary School was unlawfully denied in October 1996 and her
application for employment as a counselor at Pietzch-MacArthur Elementary School was
also unlawfully denied in December 1996. In addition, the response alleged that in late
1996 or early 1997, she was unlawfully denied a position at Vincent Middle School.
2
The April 17, 1997 complaint indicates that “Jan. 1997" is the most recent
continuing act of discrimination.
5
Because Wortham’s response to BISD’s motion identifies three events of alleged unlawful
employment practices within 180 days of the date she filed her complaint with the
Commission and we are required to consider events alleged in the response as well as the
petition, we conclude that her pleadings were sufficient to meet her burden of proof
regarding claims of alleged unlawful employment practices occurring after October 20,
1996, but not otherwise.3 Issues two and four are sustained only as to alleged acts of
unlawful employment practices occurring after October 20, 1996; in all other respects, the
issues are overruled.
By her first issue, Wortham contends the trial court erred in granting BISD’s motion
to dismiss because she did not fail to establish a prima facie case of race discrimination.
By her third issue, she contends the trial court erred in dismissing her suit because her
claims were barred by applicable statutes of limitation. However, the order signed by the
trial court did not constitute a judgment that Wortham take nothing on her claim. As a
dismissal, it was appropriate to the extent that it properly addressed the question of
jurisdiction. See Texas Highway Department v. Jarrell, 418 S.W.2d 486, 488 (Tex. 1967).
Moreover, our disposition of issues two and four pretermits consideration of issues one
3
For purposes of calculating the 180 day requirement of section 21.202, we
presume that Wortham’s complaint signed April 17, 1997 was mailed to the Commission
on the date it was signed.
6
and three.4 These issues present nothing for review.
Accordingly, that portion of the trial court’s order of September 7, 2001, dismissing
with prejudice Wortham’s claims of unlawful employment practices occurring after October
20, 1996,5 is reversed and the cause is remanded to the trial court for further proceedings;
in all other respects the order of September 7, 2001 is affirmed.
Don H. Reavis
Justice
Do not publish.
4
BISD’s motion to dismiss did not reference Rule 166a of the Texas Rules of Civil
Procedure or state the specific grounds for a motion for summary judgment.
5
Positions at Fehl Elementary School, Pietzch-MacArthur Elementary School and
Vincent Middle School if applications denied after October 20, 1996.
7