Opinion issued December 22, 2015
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-14-00417-CV
———————————
NICK YEH, INDIVIDUALLY; ASHDON, INC. D/B/A IMPRESSION
BRIDAL; AND EMME BRIDAL, INC., Appellants/Cross-Appellees
V.
ELLEN CHESLOFF, Appellee/Cross-Appellant
On Appeal from the 268th District Court
Fort Bend County, Texas
Trial Court Case No. 09-DCV-174184
OPINION
In this employment dispute, we determine whether a late-filed charge of
discrimination relates back to an employee’s earlier intake questionnaire when the
employee disavowed in the questionnaire that it was a charge of discrimination.
Following federal law, we conclude that a late-filed charge does not relate back to
the questionnaire. Because the charge that formed the basis for her state court suit
was not timely, we hold that the trial court erred in entering judgment in favor of the
employee. Accordingly, we reverse and render.
BACKGROUND
From 2006 to June 2009, Ellen Chesloff was employed as a general manager
and independent sales representative of a bridal gown wholesaler, Ashdon, Inc. d/b/a
Impression Bridal. She also worked as a sales representative for Emme Bridal, Inc.,
another gown wholesaler. Nick Yeh is the president and chief executive officer of
Impression Bridal; his brother, Mike, who is not a party to this appeal, owns Emme.
Both companies design, manufacture, and sell bridal gowns and formal
dresses to retailers. During Chesloff’s employment, the Yeh brothers subjected her
to vulgar sexual banter and behavior as well as crude text messages and emails. The
last such communication, Chesloff testified, was through an email that she received
on March 30, 2009.
Chesloff’s last day of work for both companies was on June 5, 2009. Several
days later, Nick Yeh texted Chesloff, stating that he knew that she was planning a
trip to Los Angeles to interview with a competitor. Yeh told her to cancel the
interview; if she did not, he threatened “the biggest lawsuit” that she had ever seen.
Later that morning, Yeh sent Chesloff another text message, informing her that she
2
could no longer avoid a lawsuit by cancelling the interview. In August 2009, Yeh,
Impression, and Emme filed a defamation suit against Chesloff.
After the defamation suit was filed against her, Chesloff completed an Equal
Employment Opportunity Commission (“EEOC”) intake questionnaire, which the
EEOC received by mail on September 24. The questionnaire asked details about
Chesloff’s employment and the facts relating to any discriminatory conduct.
Immediately before the questionnaire’s signature block, the following text appears
(emphasis in the original):
Please check one of the boxes below to tell us what you would like us
to do with the information you are providing on this questionnaire. If
you would like to file a charge of discrimination, you must do so within
either 180 or 300 days from the day you knew about the discrimination.
The amount of time you have depends on whether the employer is
located in a place where a state or local government agency has laws
similar to the EEOC’s laws. If you do not file a charge of
discrimination within the time limits, you will lose your rights. If
you want to file a charge, you should check Box 1, below. If you
would like more information before deciding whether to file a
charge or you are worried or have concerns about EEOC’s
notifying the employer . . . about your filing a charge, you may wish
to check Box 2, below.
3
Box 1
I want to file a charge of discrimination, and I authorize the EEOC to
look into the discrimination I described above. I understand that the
EEOC must give the employer . . . that I accuse of discrimination
information about the charge, including my name. I also
understand that the EEOC can only accept charges of job
discrimination based on race, color, religion, sex, national origin, age,
or retaliation for opposing discrimination.
□
Box 2
I want to talk to an EEOC employee before deciding whether to file a
charge of discrimination. I understand that by checking this box, I have
not filed a charge with the EEOC. I also understand that I could lose
my rights if I do not file a charge in time.
□
Chesloff marked Box 2, indicating that she wanted to talk to an EEOC employee
before deciding whether to file a charge of discrimination.
On October 6, the EEOC wrote to Chesloff, confirming receipt of the intake
questionnaire. The EEOC enclosed (1) a brochure entitled “What You Should Know
Before You File a Charge with EEOC”; and (2) an EEOC Form 5, Charge of
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Discrimination, containing the information that Chesloff had provided in her intake
questionnaire. The letter cautioned:
Please be advised that a charge is not filed with the EEOC until you
have done the following within 30 days from the date of this letter:
(1) Review the Form 5, Charge of Discrimination, and make any
necessary corrections or deletions;
(2) Sign and date the charge on the bottom left hand block identified
by an “X”; and
(3) Notarize (optional) and return the signed charge to this office.
(Emphasis in the original). On October 28, Chesloff signed the Charge of
Discrimination form, wrote “Please issue ‘right to sue’ letter ASAP,” on the bottom
of the form, and returned it to the EEOC. The EEOC received the charge on October
30 and issued a right to sue letter on November 25, 2009.
The following February, Chesloff counterclaimed against Yeh and her
company employers in the pending defamation lawsuit, claiming sex discrimination,
sexual harassment, and retaliation against her, in violation of Chapter 21 of the Texas
Labor Code, and intentional infliction of emotional distress.
Yeh and the gown companies filed a plea to jurisdiction, contending that
Chesloff had failed to meet Chapter 21’s statutory prerequisites to suit because her
charge of discrimination was not filed within 180 days of the last complained-of
discriminatory act. The trial court denied the plea. Yeh and the companies then
moved for summary judgment, renewing their contention that Chesloff’s charge of
5
discrimination was untimely, and thus she had failed to properly exhaust her
administrative remedies. The trial court denied the motion.
The case proceeded to a jury trial, both on Yeh and the companies’ claims of
defamation and Chesloff’s counterclaims of discrimination and intentional infliction
of emotional distress. The jury found against Yeh and the companies on their
defamation claims. It found in favor of Chesloff on her hostile work environment,
sexual harassment, and intentional infliction of emotional distress claims, but it
found against Chesloff on her claim of retaliation for reporting discriminatory
conduct. Yeh and the gown wholesalers timely moved for a judgment
notwithstanding the verdict, again contending that Chesloff had failed to timely file
a charge of discrimination, and further asserting that legally insufficient evidence
existed to support her intentional infliction of emotional distress claim. The trial
court granted the motion with respect to Chesloff’s intentional infliction of
emotional distress claim. It entered judgment on the jury’s verdict on Chesloff’s
sexual harassment claims.
Chesloff moved post-trial for back pay, attorney’s fees, and costs under
Chapter 21. The trial court denied her request for back pay and awarded one-third
of the attorney’s fees requested.
DISCUSSION
6
Both parties appeal parts of the trial court’s judgment. Yeh and the gown
wholesalers contend that the trial court erred in denying their motion for judgment
notwithstanding the verdict on Yeh’s sexual harassment claims because Chesloff
failed to comply with the Labor Code’s 180-day requirement. Chesloff appeals the
trial court’s denial of her request for back pay and its decision to award her less than
the amount of attorney’s fees she requested. Chesloff does not appeal the trial
court’s disposition of her intentional infliction of emotional distress claim or the
adverse jury verdict on her retaliation claim, and Yeh and the wholesalers do not
appeal the adverse disposition of their claims against Chesloff.
I. Applicable Law and Standard of Review
Under Chapter 21, a claimant must exhaust her administrative remedies before
filing a civil action for employment discrimination. Schroeder v. Tex. Iron Works,
Inc., 813 S.W.2d 483, 488 (Tex. 1991), overruled on other grounds, In re United
Servs. Auto Ass’n, 307 S.W.3d 299, 310 (Tex. 2010). The timely filing of an
administrative complaint is a mandatory prerequisite to filing suit. Specialty
Retailers, Inc. v. DeMoranville, 933 S.W.3d 490, 492 (Tex. 1996). To meet this
exhaustion requirement, a claimant must file a sworn, written complaint with the
EEOC or the Texas Workplace Commission (TWC) within 180 days of the alleged
7
discriminatory act. TEX. LAB. CODE ANN. §§ 21.201–21.202 (West 2015);1
Specialty Retailers, 933 S.W.2d at 492–93 (explaining 180-day period commences
on date alleged unlawful employment practice occurred, not when plaintiff feels
effect of decision).
We frame the issue regarding a failure to comply with Chapter 21’s
administrative exhaustion requirement as a defense to liability, rather than a
jurisdictional bar, mindful that the Texas Supreme Court’s decision in Prairie View
A&M University v. Chatha raises questions about whether the failure to satisfy
Chapter 21’s administrative exhaustion requirement implicates trial court
jurisdiction in a suit between private parties. See 381 S.W.3d 500, 510–11 (Tex.
2012); compare Schroeder, 813 S.W.2d at 488 (holding that failure to comply with
the 180-day deadline for filing a charge is a jurisdictional bar, even in suits between
private parties, because Texas Commission on Human Rights Act does not provide
an unconditional private right of action) with Henderson v. Shinseki, 562 U.S. 428,
434–36, 131 S. Ct. 1197, 1202–03 (2011) (observing the need to exercise some
discipline over labeling procedural rules as “jurisdictional” absent clear
congressional indication that it is the case) and Zipes v. Transworld Airlines, Inc.,
1
“A claimant may file a complaint with either the EEOC, the federal agency
authorized to investigate charges of discrimination, or the TWC, the Texas
equivalent” to satisfy Chapter 21’s administrative exhaustion requirement. Prairie
View A & M Univ. v. Chatha, 381 S.W.3d 500, 504 n.4 (Tex. 2012). Chesloff filed
with the EEOC.
8
455 U.S. 385, 393, 102 S. Ct. 1127, 1132 (1982) (filing timely charge of
discrimination with EEOC is not a jurisdictional prerequisite to a federal suit but a
bar to recovery, subject to waiver, estoppel, and equitable tolling). The defendants
in this case raised the failure to comply with the 180-day deadline in a plea to the
jurisdiction as well as in a motion for summary judgment and a motion for a directed
verdict; they continued to object to the submission of the claim to the jury and to the
judgment on this basis; thus, they preserved their defense, whether it is a
jurisdictional bar or a defense that must be raised when a plaintiff fails to allege and
prove compliance with the administrative exhaustion requirement. See id.
Accordingly, we apply a legal sufficiency standard applicable to denial of a
directed verdict based on a lack of evidence. City of Keller v. Wilson, 168 S.W.3d
802, 823 (Tex. 2005). Applying that standard, we will sustain a challenge to the
legal sufficiency of the verdict under review when (1) there is a complete absence
of evidence of a vital fact, (2) the court is barred by rules of law or evidence from
giving weight to the only evidence offered to prove a vital fact, (3) the evidence
offered to prove a vital fact is no more than a mere scintilla, or (4) the evidence
conclusively establishes the opposite of a vital fact. King Ranch, Inc. v. Chapman,
118 S.W.3d 742, 751 (Tex. 2003); City of Keller, 168 S.W.3d at 810.
II. Analysis
9
In this case, the following facts relevant to whether Chesloff timely filed her
sexual harassment claims are undisputed:
The last incident of sexual harassment alleged in Chesloff’s charge of
discrimination and subsequent suit occurred on March 30, 2009.
The defamation suit against Chesloff was filed on August 18, 2009 (the
suit also provided the basis for Chesloff’s retaliation claim, which the
jury rejected).
The EEOC received Chesloff’s intake questionnaire on September 24,
2009—179 days after the last alleged incident of sexual harassment and
38 days after the suit against Chesloff was filed.
The EEOC received Chesloff’s Charge of Discrimination on October
30, 2009—214 days after the last alleged incident of sexual harassment
and 73 days after the suit against Chesloff was filed.
We consider the legal significance of these dates in calculating the 180-day
statutory deadline.
A. The EEOC intake questionnaire was not a complaint of
discrimination as required by statute.
“A claimant may file a complaint with either the EEOC, the federal agency
authorized to investigate charges of discrimination, or the TWC, the Texas
equivalent,” to satisfy Chapter 21’s administrative exhaustion requirement. Chatha,
381 S.W.3d at 504 n.4. Chesloff filed her charge of discrimination with the EEOC
on October 30, 2009. The last date that Chesloff alleged that she was subjected to
an incident involving sexual harassment was March 30, 2009, outside the 180-day
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timeframe. Chesloff’s EEOC intake questionnaire, however, was filed on
September 24, 2009, 179 days following the last alleged incident of sexual
harassment. Chesloff contends that her intake questionnaire satisfies the
requirement that she timely file an administrative complaint.
On that questionnaire, however, Chesloff checked Box 2, thereby declaring
that she sought assistance from an EEOC employee before deciding whether to file
a charge of discrimination, that she understood that checking the box meant she was
not filing a charge with the EEOC, and that she understood she could lose her rights
if she did not file a charge in time.
The inclusion of the Box 1/Box 2 choice on the EEOC intake questionnaire
filed by Chesloff came about after the United States Supreme Court’s decision in
Federal Express Corp. v. Holowecki, 552 U.S. 389, 128 S. Ct. 1147 (2008). In that
case, the Court, tasked with determining whether a plaintiff had timely invoked the
EEOC’s administrative process, addressed the definition of “charge” under the Age
Discrimination in Employment Act (ADEA) as it applied to an earlier version of the
EEOC intake questionnaire. Id. at 395, 128 S. Ct. at 1153. The Court concluded
that the definition it could glean from the existing federal regulations—a written
allegation of discrimination including the name of the employer—was insufficient,
by itself, to constitute a charge. Id. at 397, 128 S. Ct. at 1155. The Court held that
an allegation is sufficient to trigger administrative enforcement action—and
11
therefore can be deemed a charge—only when it can be “reasonably construed as a
request for the agency to take remedial action to protect the employee’s rights or
otherwise settle a dispute between the employer and the employee.” Id. at 402, 128
S. Ct. at 1158.
Noting the EEOC’s two distinct statutory functions—to enforce
antidiscrimination laws and to disseminate information about those laws to the
public—the Court declared that the EEOC needed to have “some mechanism to
separate information requests from enforcement requests” to effect the agency’s dual
functions. Id. at 400–01, 128 S. Ct. at 1157. Otherwise, the Court cautioned, to
interpret a questionnaire in which the employee indicated she does not wish to file a
charge as a charge would make the questionnaire itself misleading and would create
substantial uncertainty both for the EEOC and the employee. Id. at 401, 128 S. Ct.
at 1157. If the EEOC were to treat every intake questionnaire as a charge, the Court
observed, employees could be discouraged from seeking information because they
might not want the EEOC to disclose the information they provide to their
employers. Id. at 401, 128 S. Ct. at 1157. The Court urged the EEOC to revise its
forms and processes to reduce the risk of misunderstandings by those who seek its
assistance. Id. at 407, 128 S. Ct. at 1161.
Following Holowecki, the EEOC changed the intake form to require
employees to clearly express their intent by checking one of two boxes. Brahmana
12
v. Lembo, No. C–09–00106 RMW, 2010 WL 965296, at *1 (N.D. Cal. Mar. 17,
2010). An intake questionnaire that has a checked Box 1, next to the statement “I
want to file a charge of discrimination, and I authorize the EEOC to look into the
discrimination I described above,” qualifies as a “charge.” Henderson v. Bank of
Am., N.A., Civ. Action No. 2:14–cv–895, 2015 WL 2374519, at *2 (E.D. Tex. May
15, 2015); Crevier-Gerukos v. Eisai, Inc., Civ. Action No. H–11–0434, 2012 WL
681723, at *8 (S.D. Tex. Feb. 29, 2012) (citing additional unpublished cases in
support of proposition). On the other hand, an intake questionnaire that has a
checked Box 2, next to the statement “I want to talk to an EEOC employee before
deciding to file a charge of discrimination,” and “I understand that by checking this
box, I have not filed a charge with the EEOC” does not constitute a charge. See
Lugo-Young v. Courier Network, Inc., No. 10–CV–3197 (RRM) (LB), 2012 WL
847381, at *6 (E.D.N.Y. Mar. 13, 2012) (holding that, based on plain language in
Box 2, plaintiff’s intake questionnaire could not be construed as timely EEOC
charge); see also Hawthorne v. Vatterott Educ. Ctrs. Inc., No. 09–CV–442–TCK–
PJC, 2010 WL 3258560, at *4 (N.D. Okla. Aug. 17, 2010) (indicating that employee
could lose rights by checking second box).
We decline Chesloff’s request to interpret the EEOC intake questionnaire
form differently because she brought her suit under Texas law and not under Title
VII. The TWC form, entitled “Employment Discrimination Complaint Form,” asks
13
for much of the same information, but it uses a different format. It does not provide
the Box 1/Box 2 choice contained in the federal questionnaire: the form is entitled
“Complaint.” The Texas statute refers to the filing of a “complaint” for purposes of
the administrative exhaustion requirement. Chesloff did not file a TWC complaint
form with the TWC, for which no question exists concerning its function and
purpose. She instead completed the EEOC form with the EEOC. To construe all
EEOC intake questionnaires to be TWC “complaints” under Chapter 21 would
ignore the statutorily conferred dual purpose that the EEOC has recognized post-
Holowecki. See Brahmana, 2010 WL 965296, at *1. It would frustrate Chapter 21’s
stated purpose if we were to interpret the EEOC questionnaire contrary to the federal
courts’ understanding and the EEOC’s intent. The Texas Legislature expressly
intended for Chapter 21 to “provide for the execution of the policies” of Title VII.
TEX. LAB. CODE ANN. § 21.001(1) (West 2015); see Mission Consol. Indep. Sch.
Dist. v. Garcia, 372 S.W.3d 629, 633–34 (Tex. 2012) (“Because one of the purposes
of [Chapter 21] is to provide for the execution of the policies of Title VII of the Civil
Rights Act of 1964, we have consistently held that those analogous federal statutes
and the cases interpreting them guide our reading of [Chapter 21].” (internal
quotation omitted)). Both the federal and state equal employment opportunity laws
contain administrative procedures for investigation, conciliation, and resolution of
discrimination claims without need for litigation. See 42 U.S.C. § 2000e-5(b), (f)(1),
14
cited in Patterson v. McLean Credit Union, 491 U.S. 164, 180–81, 109 S. Ct. 2363,
2374–75 (1989); TEX. LAB. CODE ANN. § 21.154 (West 2015); Schroeder v. Texas
Iron Works, 813 S.W.2d 483, 485–86 (Tex. 1991) (explaining that Chapter 21
“establishes a comprehensive administrative review system to carry out the policies
embodied in Title VII” and “clearly encourages compliance through voluntary
resolution, conference, conciliation, and persuasion—informal processes other than
litigation”).
When an employee disclaims any intent to file a charge, the request does not
trigger any investigation or attempt at a resolution. Allowing the employee to bring
suit against her employer without first exhausting those administrative remedies
would frustrate the intent behind both federal and state statutory schemes. See
Patterson, 491 U.S. at 180–81, 109 S. Ct. at 2374–75; Waffle House, Inc. v.
Williams, 313 S.W.3d 796, 809, 811–12 (Tex. 2010) (holding that claim for sexual
harassment exists only under statute, which pre-empts any common law claim based
on allegations giving rise to statutory claim; plaintiff cannot evade statutory
exhaustion of administrative remedies requirement and other unique features of
Chapter 21 by bringing suit under common-law theory); City of Waco v. Lopez, 259
S.W.3d 147, 154–55 (Tex. 2008) (declaring that employee could not sidestep
Chapter 21’s administrative exhaustion requirement by bringing retaliation claim
solely under Whistleblower Act and holding that trial court erred in denying city’s
15
plea to jurisdictiom); see also Holowecki, 552 U.S. at 401, 128 S. Ct. at 1157
(observing that treating every completed questionnaire as a charge would thwart
“Congress’s expressed desire that the EEOC [also] act as an information provider
and try to settle employment disputes through informal means”).
Accordingly, we hold that Chesloff’s intake questionnaire did not meet the
180-day deadline for filing a complaint under state law because it was not a charge
under federal equal employment opportunity law, and she filed no complaint of
discrimination with a federal or state agency within 180 days of the alleged
discrimination.
B. The relation-back doctrine does not apply.
Chesloff further contends that she satisfied the 180-day requirement because,
though her formal charge was filed 215 days after the last alleged instance of
harassment, it should relate back to her intake questionnaire. Section 21.201 of the
Labor Code provides:
(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.
(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.
TEX. LAB. CODE ANN. § 21.201(e), (f). These provisions do not apply to the intake
questionnaire. They expressly require that any amendment relate back to the original
16
“complaint,” when filed with the TWC, or charge, when filed with the EEOC.
Chesloff’s decision to check Box 2 rather than Box 1 meant the difference between
the EEOC starting the investigation and notifying the employer of the allegations
against it and merely sending out an informational packet to the questionnaire’s
author. The intake questionnaire, as well as the information and form mailed to
Chesloff, alerted her that she had to take additional action to file a complaint,
including returning the signed Charge of Discrimination to the EEOC, before the
agency could investigate her allegations.
Chesloff relies on several cases in which courts have discussed the relation-
back rule, but they are unavailing. In Texas Department of Public Safety v.
Alexander, 300 S.W.3d 62 (Tex. App.—Austin 2009, pet. denied), each of the 16
plaintiffs had filed a “Charge of Discrimination” with the TWC and the EEOC, but
all of the plaintiffs’ charges were dated after the 180-day deadline had passed. Id.
at 73. Like Chesloff here, the plaintiffs in Alexander contended that their charges
should relate back to the intake questionnaires, which were filed before the deadline.
See id. The appellate court noted that “timely filed intake questionnaires can
sometimes be used to satisfy the timeliness requirement under [Chapter 21],” but the
court did not reach the question in that case because the record contained only one
plaintiff’s undated questionnaire and nothing at all for the other 15 plaintiffs. Id.
17
Chesloff also cites Dallas County Southwestern Institute of Forensic Sciences
and Medical Examiner Department v. Ray, 400 S.W.3d 219 (Tex. App.—Dallas
2013, pet. denied), for the proposition that an employee is entitled to correct
technical deficiencies without affecting the timeliness of a charge. In Ray, the
employee had filed an unsworn complaint that she later corrected through
amendment. Id. at 222. The parties did not contest whether the employee’s
amendment related back to her original complaint. See id.; see also TEX. LAB. CODE
ANN. § 21.201(e) (expressly identifying “failure to verify the complaint” as error
that can be cured by amendment). The question before the court was whether its
jurisdiction was affected by the TWC’s failure to comply with the employer
notification requirement set forth in section 21.201(g) of the Labor Code. Id. (citing
TEX. LAB. CODE ANN. § 21.201(g)). The Court held that it was not. Id. at 225.
The remaining cases relied on by Chesloff are inapposite because they either
involve the TWC complaint form or predate Holowecki and the EEOC’s subsequent
revision to its intake questionnaire. None involves a form like the one that Chesloff
used, requiring the employee to declare affirmatively whether she means for the
questionnaire to be a charge or not. Because Chesloff’s intake questionnaire does
not constitute a complaint for purposes of the state equal employment opportunity
law, the relation-back doctrine does not apply. See TEX. LAB. CODE ANN.
§ 21.201(e) (providing that complaint may be amended to cure technical defects).
18
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C. Post-employment conduct does not revive the harassment claim.
Finally, Chesloff argues that either the date Yeh sent the text message
regarding her California interview or the date that Yeh and the gown wholesalers
filed suit against her—each of which is fewer than 180 days before she filed her
formal charge of discrimination—should toll the start of the 180-day clock for filing
her harassment charge. She points to the continuing violation doctrine, which
relieves a plaintiff of establishing that all of the alleged discriminatory conduct
occurred within the actionable period if the plaintiff can show that, in addition to
acts that otherwise would be time-barred, the conduct continued into the actionable
period. Hunicke v. Seafarers Int’l Union, No. 14-12-00199-CV, 2013 WL 2444634,
at *7 (Tex. App.—Houston [14th Dist.] June 4, 2013, pet. denied) (mem. op.).
The continuing violation doctrine applies to claims showing an organized
scheme leading to and including the latest alleged violation. Santi v. Univ. of Tex.
Health Sci. Ctr. at Houston, 312 S.W.3d 800, 804–05 (Tex. App.—Houston [1st
Dist.] 2009, no pet.). The cumulative effect of the discriminatory practice gives rise
to the cause of action. Davis v. AutoNation USA Corp., 226 S.W.3d 487, 493 Tex.
App.—Houston [1st Dist.] 2006, no pet.). Incidents giving rise to a hostile
environment sexual harassment claim frequently involve the continuing violation
doctrine, because the plaintiff must show that the employer’s inherently offensive
conduct altered the “terms, conditions, or privileges of employment” so severely or
20
pervasively that it created an abusive working environment. See TEX. LAB. CODE
ANN. § 21.051(1) (West 2015); San Antonio Water Sys. v. Nicholas, 461 S.W.3d
131, 138 (Tex. 2015).
A Chapter 21 claimant’s lawsuit, however, is limited to claims that were
included in the administrative charge and to factually related claims that could
reasonably be expected to grow out of the agency’s investigation of the claims stated
in the charge. See Santi, 312 S.W.3d at 805. We liberally construe the
administrative charge to determine whether it contains an adequate factual basis to
put the employer on notice of the existence and nature of the charges. Id.; Bartosh
v. Sam Houston State Univ., 259 S.W.3d 317, 321 (Tex. App.—Texarkana 2008,
pet. denied). We may not construe the charge to include facts that the employee
initially omitted. Walcott v. Texas S. Univ., No. 01-12-00355-CV, 2013 WL 593488,
at *10 (Tex. App.—Houston [1st Dist.] Feb. 14, 2013, no pet.) (mem. op.) (quoting
Cty. of Travis ex rel. Hamilton v. Manion, No. 03-11-00533-CV, 2012 WL 1839399,
at *4 (Tex. App.—Austin May 17, 2012, no pet.) (mem. op.)).
Both the text message and the lawsuit occurred post-employment, but before
Chesloff filed her intake questionnaire and her charge of discrimination. Neither
was included in Chesloff’s filings as an act of sexual harassment discrimination. Her
allegations instead were confined to acts that had occurred during her employment,
culminating with the last incident in March. Chesloff did not amend her charge to
21
include any later acts. Their omission from the charge bars them from consideration
under the continuing violation doctrine. See id.
Even if these acts had been included in the charge, they fall outside the scope
of a sexual harassment claim. Yeh sent the text message after Chesloff had left her
employment and three months after the last complained-of act of harassment; the
message contained no sexual content. Yeh’s defamation suit, filed three months
after Chesloff left her employment, formed the basis for Chesloff’s retaliation claim.
But the jury rejected that claim. The jury question asked whether the lawsuit was
filed against Chesloff because she filed a sexual harassment complaint. The jury
answered “no.” Because Chesloff was no longer working in the hostile environment,
we hold that these post-termination acts are not within her hostile environment
claim. See, e.g., Laster v. City of Kalamazoo, 746 F.3d 714, 731 (6th Cir. 2014)
(“Unlike a Title VII anti-discrimination claim, ‘the anti-retaliation provision does
not confine the actions and harms it forbids to those that are related to employment
or occur at the workplace.’”) (quoting Burlington N. & Santa Fe Ry. v. White, 548
U.S. 53, 57, 126 S. Ct. 2405, 2409 (2006)). Filing a lawsuit against a former
employee is a discrete act that is not inherently harassing conduct of the type
prohibited by sexual harassment law. See, e.g., Bartosh, 259 S.W.3d at 325–26
(holding that employee failed to preserve hostile work environment claim when only
22
timely allegation of discrimination was based on termination, because “[t]ermination
is not itself harassing conduct”).
Accordingly, we hold that the June 2009 and August 2009 post-employment
acts did not revive Chesloff’s sexual harassment claim.
CONCLUSION
We hold that the complaint of discrimination on which the trial court’s
judgment is based was not timely filed as Texas Labor Code Chapter 21 requires.
We therefore reverse that portion of the trial court’s judgment based on Chesloff’s
Chapter 21 claims and render judgment that Chesloff take nothing on her
counterclaims. 2
Jane Bland
Justice
Panel consists of Chief Justice Radack and Justices Bland and Huddle.
2
Because of our disposition, we need not reach the issues raised in Chesloff’s cross-
appeal of the trial court’s damages award.
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