Blaire Reid v. SSB Holdings, Inc., D/B/A Protec Laboratory

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana

No. 06-15-00094-CV

BLAIRE REID, Appellant

V.

SSB HOLDINGS, INC., D/B/A PROTEC LABORATORY, Appellee

On Appeal from the 402nd District Court
Wood County, Texas
Trial Court No. 2015-254

Before Morriss, C.J., Moseley and Burgess, JJ.
Opinion by Justice Burgess
 OPINION
After Blaire Reid filed her suit against SSB Holdings, Inc., d/b/a Protec Laboratory (Protec)

alleging unlawful sexual harassment and retaliatory discharge,1 Protec filed a plea to the

jurisdiction asserting that Reid had not exhausted her administrative remedies under Chapter 21 of

the Texas Labor Code.2 After a hearing, the trial court granted the plea to the jurisdiction and

dismissed Reid’s claims with prejudice. In this appeal, Reid asserts that the trial court erred

because (1) exhaustion of administrative remedies is not jurisdictional and (2) she exhausted her

administrative remedies by timely filing an employment discrimination complaint with the Texas

Workforce Commission (the Commission). We find that the trial court erred in granting the plea

to the jurisdiction.

I. Background

In her amended petition, Reid alleged that, on or about May 10, 2013, while she was

employed as the personal assistant to Protec’s director of operations, a fellow employee began

sexually harassing her through text messages. She alleged that, although she reported the

harassment to her supervisor and even though Protec had a written policy forbidding sexual

harassment and procedures for the investigation and resolution of complaints, nothing was done

by Protec regarding her complaint. According to Reid, the fellow employee escalated the

harassment over the next few days through telephone calls, voice messages, and in-person

1
See TEX. LAB. CODE ANN. §§ 21.051, 21.055 (West 2015).
2
See TEX. LAB. CODE ANN. §§ 21.001–.556 (West 2015 & Supp. 2016) (commonly known as the Texas Commission
on Human Rights Act (TCHRA)).

2
statements. Then, on May 14, 2013, when she again reported the harassment to her supervisor, he

terminated her employment, stating that she was “causing drama.” Reid also alleged that, in

October 2013, she filed a discrimination complaint with the Commission3 based on sexual

harassment and retaliation, which was dismissed by the Commission.

Protec filed a plea to the jurisdiction alleging that Reid had not exhausted her

administrative remedies by filing a timely complaint of discrimination under Chapter 21 of the

TCHRA within 180 days of the alleged discriminatory act. See TEX. LAB. CODE ANN. §§ 21.201–

.202. Although Protec acknowledged that Reid had filed a complaint with the Commission, in

addition to contesting its timeliness, it alleged that the complaint was not made under oath as

required by the TCHRA. Therefore, Protec alleged, Reid had not exhausted her administrative

remedies.

The evidence attached to the plea to the jurisdiction and Reid’s response showed that, on

or about October 22, 2013, Reid filed with the Commission, by email, a form promulgated by the

Commission’s Civil Rights Division entitled “Employment Discrimination Complaint Form” (the

complaint form). On the complaint form, Reid indicated that her complaint was for sexual

discrimination and retaliation and set forth essentially the same allegations she later made in her

amended petition. In addition, Reid responded affirmatively to a question on the form asking, “If

we draft your charge and send it to you at your email address, will you print, sign, and return the

3
Claims for employment discrimination under Chapter 21 of the Texas Labor Code are filed with the Commission.
See TEX. LAB. CODE ANN. §§ 21.0015, 21.201(a).
3
form that same day?” The complaint form contains the instruction, which Reid followed, to return

the form by email to EEOIntake@twc.state.tx.us.

The complaint form did not contain a place for a signature or for a verification. By

affidavit, Reid’s attorney testified that the complaint form was obtained from the Commission’s

website and that, upon noticing there was no space for a signature or verification, he contacted the

Commission by telephone and was informed that the complaint form was the proper vehicle for

submitting a discrimination complaint. By email dated October 25, 2013, the Commission

confirmed its “receipt of [Reid’s] discrimination complaint.” The Commission dismissed Reid’s

discrimination complaint on or about November 8, 2013, since it found the complaint “insufficient

to file a claim of discrimination.”

In addition, Reid produced evidence that, by letter dated September 6, 2013, her attorney

notified Protec that he was representing her and detailed her claims of sexual harassment and

wrongful termination. By letter dated September 30, 2013, the attorneys for Protec notified Reid’s

attorney of their representation of Protec in connection with the allegations made in his

September 6 letter.

On February 28, 2015, a short hearing was held on Protec’s plea to the jurisdiction. Five

months later, the trial court granted Protec’s plea to the jurisdiction and dismissed Reid’s claims

with prejudice.

II. Standard of Review

We review a challenge to the trial court’s subject-matter jurisdiction de novo. Tex. Dep’t

of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 228 (Tex. 2004). It is the plaintiff’s burden to

4
affirmatively plead facts demonstrating the trial court’s jurisdiction. Id. at 226; Bartosh v. Sam

Houston State Univ., 259 S.W.3d 317, 321 (Tex. App.—Texarkana 2008, pet. denied). In our

review, we initially determine whether the plaintiff has alleged facts that affirmatively demonstrate

the trial court’s jurisdiction, construing the pleadings liberally in favor of the plaintiff. Miranda,

133 S.W.3d at 226; City of Waco v. Lopez, 259 S.W.3d 147, 150 (Tex. 2008). When the “plea to

the jurisdiction challenges the existence of jurisdictional facts,” as in this case, we also “consider

the relevant evidence submitted by the parties” and “take as true all evidence favorable to the

nonmovant.” Miranda, 133 S.W.3d at 227–28. Further, all reasonable inferences are indulged,

and any doubts resolved, in favor of the nonmovant. Id. at 228. Like a summary judgment, if a

disputed material fact remains regarding the jurisdictional issue, the plea to the jurisdiction should

not be granted. See id. When the jurisdictional facts are undisputed, as in this case, we “make[]

the jurisdictional determination as a matter of law based on those undisputed facts.” Lueck v. State,

325 S.W.3d 752, 757 (Tex. App.—Austin 2010, pet. denied) (citing Miranda, 133 S.W.3d at 227–

28).

A. Analysis

Section 21.201 of the Texas Labor Code provides that a person claiming to be injured by

an unlawful employment practice, or her agent, may file a complaint with the Commission. TEX.

LAB. CODE ANN. § 21.201(a). It goes on to require that the complaint be in writing, be “made

under oath,” state “that an unlawful employment practice has been committed,” set forth the facts

supporting the complaint, and state sufficient facts to identify the respondent. TEX. LAB. CODE

5
ANN. § 21.201(b), (c). In addition, Section 21.202 requires that the complaint must be filed within

180 days after the unlawful employment practice occurred. TEX. LAB. CODE ANN. § 21.202(a).

The Texas Supreme Court has held that the filing of a complaint with the Commission and

pursuing administrative remedies is a mandatory prerequisite to filing a civil suit and that the

failure to do so “creates a jurisdictional bar to [an employment] discrimination claim.” Schroeder

v. Tex. Iron Works, Inc., 813 S.W.2d 483, 488 (Tex. 1991), overruled on other grounds by In re

United States Auto. Ass’n, 307 S.W.3d 299 (Tex. 2010). In other words, a plaintiff must exhaust

her administrative remedies before pursuing a civil suit based on employment discrimination.

Schroeder, 813 S.W.2d at 488. Relying on Schroeder and other decisions by the Texas Supreme

Court,4 appellate courts have held that the failure to file a complaint with the Commission within

180 days of the alleged unlawful practice deprives the trial court of subject-matter jurisdiction over

the claims. Pruitt v. Int’l Ass’n of Fire Fighters, 366 S.W.3d 740, 745–46 (Tex. App.—Texarkana

2012, no pet.); Bartosh, 259 S.W.3d at 321; see also Lueck, 325 S.W.3d at 758 n.3 (citing cases

that support this proposition).

Nevertheless, in her first point of error, Reid asserts that the trial court erred because

exhaustion of remedies is no longer a jurisdictional bar to bringing a civil suit for employment

discrimination. Reid points out that the TCHRA was enacted for, inter alia, the express purpose,

of executing the policies of Title VII of the Civil Rights Act of 1964 and its subsequent

amendments and that Texas courts look to federal cases interpreting comparable provisions of the

4
See, e.g., Specialty Retailers, Inc. v. DeMoranville, 933 S.W.2d 490, 492 (Tex.1996) (per curiam); Johnson &
Johnson Med., Inc. v. Sanchez, 924 S.W.2d 925, 929 n.3 (Tex. 1996).
6
federal statute when reviewing issues arising under Chapter 21. See TEX. LAB. CODE ANN.

§ 21.001(1); Prairie View A & M Univ. v. Chatha, 381 S.W.3d 500, 505 (Tex. 2012); Schroeder,

813 S.W.2d at 485. Reid then argues that the United States Supreme Court has held that filing a

timely charge of discrimination with the Equal Employment Opportunity Commission is not a

jurisdictional prerequisite to filing a suit under Title VII, but rather a requirement that is subject to

waiver, estoppel, and equitable tolling. She further contends that we should follow its reasoning.

See Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393 (1982).

Reid also points to United States Automobile Ass’n, arguing that, in partially overruling

Schroeder, the Texas Supreme Court recognized that “[t]he United States Supreme Court has

consistently construed Title VII’s requirements as mandatory[,] but not jurisdictional.” In re

United States Auto. Ass’n, 307 S.W.3d 299, 308 (Tex. 2010). Protec responds that the primary

holding of Schroeder, i.e., that an action under the TCHRA requires an exhaustion of remedies,

has never been repealed, that Schroeder was reaffirmed as recently as 2010, and that exhaustion

of administrative remedies is an area where the Texas rule differs from the federal rule. See Waffle

House, Inc. v. Williams, 313 S.W.3d 796, 804 (Tex. 2010). It also argues that, to exhaust her

administrative remedies, a plaintiff must file a verified complaint with the Commission.

In Schroeder, the plaintiff brought suit alleging age discrimination against Texas Iron

Works (TIC) in state district court without first filing a complaint with the Commission.

Schroeder, 813 S.W.2d at 484. TIC moved for, and was granted, summary judgment based on

7
Schroeder’s failure to file a complaint with the Texas Commission on Human Rights,5 and based

on the expiration of the limitations period applicable to such a complaint. Id. at 485. In rejecting

Schroeder’s argument that the TCHRA allowed a person claiming employment discrimination to

either seek administrative procedures or go directly to court, the Texas Supreme Court held that

the legislative intent of the Act was to require a person to exhaust her administrative remedies

before seeking judicial relief. See id. at 486–88. As a result, the court concluded that “exhaustion

of administrative remedies is a mandatory prerequisite to filing a civil action alleging violations of

the [T]CHRA” and that “Schroeder’s failure to file a complaint and to pursue his administrative

remedies” created “a jurisdictional bar” to his discrimination claim. Id. at 488. In its decision, the

court also noted that the TCHRA’s requirement that the complaint must be filed with the

Commission within 180 days of the alleged unlawful practice “has been held to be mandatory and

jurisdictional.” Id. at 486 (citing Green v. Aluminum Co. of Am., 760 S.W.2d 378, 380 (Tex.

App.—Austin 1988, no writ)). It also noted that the time limit to bring suit was mandatory and

jurisdictional. Id. at 487 n.10; see TEX. LAB. CODE ANN. § 21.256.

Subsequent to Schroeder, the Texas Supreme Court began taking what it characterized as

a “modern direction of policy” regarding subject-matter jurisdiction. Dubai Petroleum Co. v. Kazi,

12 S.W.3d 71, 76 (Tex. 2000) (quoting RESTATEMENT (SECOND) OF JUDGMENTS § 11 cmt. e

(1982)). In Dubai, the court abandoned its previous long-held policy that viewed the failure of a

plaintiff “to establish a statutory prerequisite as jurisdictional,” Id. (overruling in part Mingus v.

5
At the time, the TCHRA required complaints to be filed with the Texas Commission on Human Rights. See Act of
June 25, 1983, 68th Leg., 1st C.S., ch. 7, §§ 3.01, 6.01, 1983 Tex. Gen. Laws 37, 41, 50, repealed by Act of May 12,
1993, 73d Leg, R.S., ch. 269, § 5(1), 1993 Tex. Gen. Laws 987, 1273.
8
Wadley, 285 S.W. 1084 (Tex. 1926)), and instead held that it goes “in reality to the right of the

plaintiff to relief.” Id. at 77 (quoting 21 C.J.S. Courts § 16, at 23 (1990)).

The Texas Supreme Court has stated that, since the Dubai decision, it has been “reluctant

to conclude that a provision is jurisdictional, absent clear legislative intent to that effect.” United

States Auto. Ass’n, 307 S.W.3d at 306 (quoting City of DeSoto v. White, 288 S.W.3d 389, 393

(Tex. 2009)). In addition, while not overruling its holding in Schroeder that exhaustion of

administrative remedies under the TCHRA is mandatory and jurisdictional, the court has

recognized that several courts of appeals have questioned whether the Dubai decision represented

a retreat from this position. Id. at 307 (citing Ramirez v. DRC Distribs., Ltd., 216 S.W.3d 917,

921 n.8 (Tex. App.—Corpus Christi 2007, pet. denied) (collecting cases)).

In United States Automobile Ass’n, the Texas Supreme Court reexamined its statement in

Schroeder that the time limit to bring suit under Section 21.256 is jurisdictional. Id. In its analysis,

the court began by examining the statutory language with the presumption “that the Legislature

did not intend to make the [provision] jurisdictional; a presumption overcome only by clear

legislative intent to the contrary.” Id. (quoting City of DeSoto, 288 S.W.3d at 394). The court

noted that, while the statute used mandatory language,6 nothing in the statute indicated that the

requirement was jurisdictional or that noncompliance would result in dismissal for lack of subject-

matter jurisdiction. Id. at 308.

6
Section 21.256 provides that “[a] civil action may not be brought . . . later than the second anniversary of the date the
complaint relating to the action is filed.” TEX. LAB. CODE ANN. § 21.256.
9
 In addition, the court considered the statute’s purpose. Id. (citing Univ. of Tex. Sw. Med.

Ctr. v. Loutzenhiser, 140 S.W.3d 351, 360 (Tex. 2004), superseded by statute on other grounds,

TEX. GOV’T CODE ANN. § 311.034 (West 2013); Helena Chem. Co. v. Wilkins, 47 S.W.3d 486,

494 (Tex. 2001)). The court concluded that

[t]he TCHRA was enacted to “provide for the execution of the policies of Title VII
of the Civil Rights Act of 1964.” TEX. LAB. CODE § 21.001(1). It is “modeled after
federal civil rights law,” NME Hosps., Inc. v. Rennels, 994 S.W.2d 142, 144 (Tex.
1999), and “[o]ne of the primary goals of the statute is to coordinate state law with
federal law in the area of employment discrimination,” Vielma v. Eureka Co., 218
F.3d 458, 462 (5th Cir. 2000). Thus, “analogous federal statutes and the cases
interpreting them guide our reading of the TCHRA.” Quantum Chem. Corp. v.
Toennies, 47 S.W.3d 473, 476 (Tex. 2001).

Id. In examining federal decisions, the court observed that “[t]he United States Supreme Court

has consistently construed Title VII’s requirements as mandatory but not jurisdictional.” Id. (citing

Arbaugh v. Y & H Corp., 546 U.S. 500, 516 (2006); Zipes v. Trans World Airlines, Inc., 455 U.S.

385, 393 (1982); Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 95–96 (1990); Crown, Cork &

Seal Co. v. Parker, 462 U.S. 345, 349 n.3 (1983)).

Finally, the court considered the consequences resulting from each interpretation. Id. at

309 (citing Helena Chem., 47 S.W.3d at 495). The court pointed out that interpreting the statute

as jurisdictional would leave trial court judgments granting or denying motions for summary

judgment based on limitations, and appellate decisions affirming the same, subject to attack since

those courts would be without power to render those decisions. Id. at 310. The court stated that

“[i]t is preferable to ‘avoid a result that leaves the decisions and judgments of [a tribunal] in limbo

and subject to future attack, unless that was the Legislature’s clear intent.’” Id. (quoting City of

DeSoto, 288 S.W.3d at 394). This analytical framework to determine whether a statutory
10
requirement is jurisdictional or only mandatory is consistent with “the analysis that the [S]upreme

[C]ourt has employed in other post-Dubai cases, in keeping with the predominant trend to view

most statutory prerequisites as mandatory but not jurisdictional.” Lueck, 325 S.W.3d at 760 (citing

City of DeSoto, 288 S.W.3d at 393; Igal v. Brightstar Info. Tech. Grp., Inc., 250 S.W.3d 78, 86

(Tex. 2008), superseded by statute, TEX. LAB. CODE ANN. § 61.051(c) (West Supp. 2016);

Loutzenhiser, 140 S.W.3d at 354).

Based on its consideration of the statute, its purposes, and the consequences of competing

interpretations, the Supreme Court held that the limitations period contained in Section 21.256 was

mandatory, but not jurisdictional, and overruled Schroeder to the extent it held otherwise.

Although United States Automobile Ass’n did not expressly overrule Schoeder’s primary holding

that the exhaustion of administrative remedies is mandatory and jurisdictional, appellate courts are

in conflict over whether the exhaustion of administrative remedies is jurisdictional or merely

mandatory. Cf., e.g., Gorman v. Verizon Wireless Tex., L.L.C., 753 F.3d 165, 169–70 (5th Cir.

2014) (holding that United States Automobile Ass’n implicitly overruled Schroeder’s holding that

exhaustion of remedies is jurisdictional), with Ajayi v. Walgreen Co., 562 F. App’x 243, 245 (5th

Cir. 2014) (per curiam) (holding that United States Automobile Ass’n did not overrule Schroeder’s

holding that failure to file complaint with the Commission within 180 days is jurisdictional defect).

Further, in two cases decided after United States Automobile Ass’n, the Texas Supreme

Court reaffirmed that exhaustion of administrative remedies under the TCHRA is mandatory, but

did not address whether it was also jurisdictional. In Waffle House, Inc., the court reaffirmed its

holding in Schroeder that the TCHRA requires an exhaustion of administrative remedies, but did

11
not address whether this was a jurisdictional defect. Waffle House, Inc., 313 S.W.3d at 805. Two

years later, the Texas Supreme Court again reaffirmed that portion of its ruling that timely filing a

complaint with the Commission is a mandatory prerequisite to filing a civil suit, but expressly

declined to address the question of whether this requirement is jurisdictional. Prairie View A & M

Univ., 381 S.W.3d at 510 n.15, 514. Thus, while we agree that the Texas Supreme Court has not

expressly overruled its holding in Schroeder that failure to exhaust administrative remedies under

the TCHRA is a jurisdictional defect to bringing a civil suit, we also note that subsequent decisions

by the court cast some doubt on the continued viability of that holding. 7 However, we need not

reach that issue to decide this case.

In this case, Protec has not disputed that Reid filed the complaint form with the

Commission and that the complaint form was sufficient in all respects, except that it was not

verified. By contrast, the plaintiff in Schroeder completely failed to file a complaint with the

Commission, and the administrative system of review provided under the TCHRA was not invoked

before he filed his civil suit. See Schroeder, 813 S.W.2d at 485–86. Thus, the Texas Supreme

Court was not presented with the question of whether a plaintiff who files a complaint with the

Commission, but fails to verify it, as here, is jurisdictionally barred from bringing a civil suit.

Neither party has directed us to, nor have we found, a Texas Supreme Court case addressing the

question in this case. As has been seen, however, the Supreme Court has provided a framework

for analyzing whether the specific requirements for a complaint contained in the TCHRA are

7
The First Court of Appeals, citing Chesloff, has recently analyzed a failure to comply with the TCHRA’s
administrative exhaustion requirements “as a defense to liability, rather than a jurisdictional bar” in a suit between
private parties. Yeh v. Chesloff, 483 S.W.3d 108, 113 (Tex. App.—Houston [1st Dist.] 2015, pet. filed).
12
jurisdictional, or “a non-jurisdictional requirement mandated by statute [that] may result in the loss

of a claim.” Loutzenhiser, 140 S.W.3d at 359. Nevertheless, “that failure must be timely asserted

and compliance can be waived.” Id.

First, we look at the statutory language “presuming ‘that the Legislature did not intend to

make the [provision] jurisdictional[,] a presumption [which may be] overcome only by clear

legislative intent to the contrary.’” United States Auto. Ass’n, 307 S.W.3d at 307 (quoting City of

DeSoto, 288 S.W.3d at 394). As has been seen, the statute requires that the complaint be in writing,

“made under oath,” state “that an unlawful employment practice has been committed,” set forth

the facts supporting the complaint, and state sufficient facts to identify the respondent. TEX. LAB.

CODE ANN. § 21.201(b), (c). The statutory language that a “complaint must be . . . made under

oath” makes that provision mandatory. TEX. LAB. CODE ANN. § 21.201(b); see TEX. GOV’T CODE

ANN. § 311.016(3) (West 2013); Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 493 (Tex. 2001).

However, “[e]ven if a statutory requirement is mandatory, this does not mean that

compliance is necessarily jurisdictional.” Wilkins, 47 S.W.3d at 494 (citing Albertson’s, Inc. v.

Sinclair, 984 S.W.2d 958, 961 (Tex. 1999) (per curiam)). There is no language in the statute that

indicates that the verification requirement is jurisdictional or providing that failure to verify the

complaint should result in dismissal. United States Auto. Ass’n, 307 S.W.3d at 308; City of DeSoto,

288 S.W.3d at 396. To the contrary, the statute provides that “[a] complaint may be amended to

cure technical defects or omissions, including a failure to verify the complaint . . . .” TEX. LAB.

CODE ANN. § 21.201(e). Thus, the Legislature appears to view the failure to verify the complaint

not as a jurisdictional defect, but rather as a technical defect or omission that may be cured.

13
 Next we consider the statute’s purpose. United States Auto. Ass’n, 307 S.W.3d at 308.

Since the TCHRA was enacted to execute the policies of Title VII, is modeled after the federal

law, and has the goal of coordinating state and federal law regarding employment discrimination,

we may look to federal cases interpreting analogous federal statutes in interpreting the TCHRA.

Id. Under federal law, a charge filed with the Equal Employment Opportunity Commission

(EEOC), like a complaint filed with the Commission, is required to be under oath. 42 U.S.C.A.

§ 2000e-5(b) (West, Westlaw through P.L. 114-229 Oct. 17, 2016). The purpose of filing a charge

is to provide the EEOC with sufficient information to notify an employer that it has
been charged with discrimination and to provide the EEOC with the opportunity to
investigate the alleged unlawful practice as well as to provide the EEOC with the
opportunity to eliminate any unlawful practice through informal conciliation.

Steffen v. Meridian Life Ins. Co., 859 F.2d 534, 542 (7th Cir. 1988); see also Price v. Sw. Bell Tel.

Co., 687 F.2d 74, 78 (5th Cir. 1982).

Further, the purpose of the verification requirement is to “protect[] employers and co-

workers ‘from the disruption and expense of responding to a claim unless a complainant is serious

enough and sure enough to support it by oath subject to liability for perjury.’” Gad v. Kansas State

Univ., 787 F.3d 1032, 1038 (10th Cir. 2015) (quoting Edelman v. Lynchburg Coll., 535 U.S. 106,

113 (2002)); Buck v. Hampton Twp. Sch. Dist., 452 F.3d 256, 263 (3rd Cir. 2006). Federal courts

construe the verification requirement “in the context of Title VII as a whole.” Buck, 452 F.3d at

263. The United States Supreme Court explained:

[T]he verification provision is meant to provide some degree of insurance against
catchpenny claims of disgruntled, but not necessarily aggrieved, employees. In
requiring the oath or affirmation, however, Congress presumably did not mean to
affect the nature of Title VII as “a remedial scheme in which laypersons, rather than
lawyers, are expected to initiate the process.”
14
Edelman, 535 U.S. at 115 (quoting EEOC v. Commercial Office Prods. Co., 486 U.S. 107, 124

(1988)). As a result, the federal courts have generally held that the failure to verify the charge in

a Title VII claim is not a jurisdictional bar to filing suit. Gad, 787 F.3d at 1039; Buck, 452 F.3d at

262–63; Conner v. Louisiana Dep’t of Health & Hosps., 247 F. App’x 480, 481 (5th Cir. 2007)

(per curiam); Price, 687 F.2d at 79. The United States Third Circuit Court of Appeals explained

that, since “the verification requirement is concerned only with protecting an employer from

responding to an unverified charge[, w]hen an employer files a response on the merits, he foregoes

the protection that the requirement affords.” Buck, 452 F.3d at 263.8

Similarly, the Dallas and Corpus Christi Courts of Appeals have held that the failure to

verify a complaint under the TCHRA is not a jurisdictional defect. In Barth v. Hoffman-La Roche,

the Dallas court held that, since the TCHRA is patterned after Title VII, and the verification

requirement for a federal discrimination charge is not jurisdictional, Barth’s failure to verify her

complaint to the Commission “did not deprive the trial court of subject matter jurisdiction.” Barth

8
Although the Fifth Circuit Court of Appeals has held that an unverified intake form filed with the Commission was
not sufficient to exhaust remedies under the TCHRA, the court did not address the question of whether the lack of
verification was jurisdictional, but whether the intake form could cure deficiencies in the complaint to the TCHR.
Harris v. Honda, 213 F. App’x 258, 261–62 (5th Cir. 2006) (per curiam).
In Harris, the plaintiff filed his intake form on December 27, 2003, alleging that he was discriminated against
in July and September 2003. Id. at 260. He filed his complaint with the TCHR on May 5, 2004, alleging discrimination
only in September 2003, “and made no reference to any of the July 2003 activities.” Id. Harris filed his lawsuit in
state district court alleging discrimination in connection with the July 2003, actions and made no reference to any of
the September 2003, activities. Harris v. Honda, No. 3:04-CV-2629-M, 2005 WL 2416000, at *1 (N.D. Tex. Sept. 30,
2005) (mem. op. and order). Honda moved to dismiss the lawsuit on the basis that Harris had failed to exhaust his
administrative remedies before the TCHR because the July 2003 event raised in the lawsuit was not raised in the
complaint to the TCHR. Harris, 213 F. App’x at 260. In response, Harris alleged that notwithstanding his failure to
allege both events in the charge, the intake form listed both events and therefore he timely exhausted his administrative
remedies as to both events. Id. at 261–62. The Fifth Circuit held that the intake form could not cure the defects in his
complaint to the TCHR because the employer was not required to be notified of the charges alleged in an intake form.
Id. Accordingly, the Fifth Circuit did not address the question in this case.
15
v Hoffman-La Roche, Inc., No. 05-01-00302-CV, 2002 WL 1225684, at *6 (Tex. App.—Dallas

June 6, 2002, no pet.) (not designated for publication).9 In Wal-Mart Stores, Inc. v. Canchola, the

Corpus Christi Court of Appeals rejected Wal-Mart’s argument that Canchola’s unverified EEOC

intake questionnaire filed with the Commission did not constitute a formal complaint under the

TCHRA and that, therefore, Canchola had not exhausted his administrative remedies. Wal-Mart

Stores, Inc. v. Canchola, 64 S.W.3d 524, 535 (Tex. App.—Corpus Christi 2001), rev’d on other

grounds, 112 S.W.3d 735 (Tex. 2003). Instead, the court, pointing to Section 21.201(e)’s provision

that a complaint may be amended to cure technical defects such as a failure to verify the complaint,

found that the filing of the unverified questionnaire “suffice[d] to institute administrative review

under the TCHRA.” Id. As in this case, Canchola’s complaint was dismissed by the Commission

at the intake stage. Id. at 533, 535.

Finally, we “consider the consequences that result from each interpretation.” United States

Auto. Ass’n, 307 S.W.3d at 309. If the verification requirement is jurisdictional, those courts that

have granted judgments on the merits when no verified complaint was filed “would have had no

power to do so, nor would appellate courts have had the power to affirm the judgments.” Id. at

310; see Barth, 2002 WL 1225684 at *6; Canchola, 64 S.W.3d at 541. The Texas Supreme Court

has directed that “[i]t is preferable to ‘avoid a result that leaves the decisions and judgments of [a

9
Protec argues that this holding in Barth was dicta since it addressed a conditional cross-point and the Dallas court
had already affirmed a summary judgment dismissing the plaintiff’s employment discrimination claims. However,
the cross-point asserted that the trial court lacked subject-matter jurisdiction since the complaint filed with the
Commission was not verified. Barth, 2002 WL 1225684, at *6. If the trial court lacked subject-matter jurisdiction,
then it would have had no power to grant summary judgment, and the Dallas court would have had no power to affirm
the same. United States Auto. Ass’n, 307 S.W.3d at 310. Therefore, the court’s holding that Barth’s failure to verify
her complaint was not a jurisdictional defect was essential to the court’s opinion.
16
tribunal] in limbo and subject to future attack, unless that was the Legislature’s clear intent.’”

United States Auto. Ass’n, 307 S.W.3d at 310 (quoting City of DeSoto, 288 S.W.3d at 394).

Conversely, if the verification requirement is not jurisdictional, the respondent may still challenge

an unsworn complaint’s deficiency both at the Commission and in the trial court.10

Since the language of the statute does not clearly express a legislative intent that the failure

to verify a complaint filed with the Commission deprives the trial court of subject-matter

jurisdiction, the purpose of the statute is not impaired by interpreting the verification requirement

as non-jurisdictional, and such interpretation promotes the finality of judgments, we find that

Reid’s failure to verify her complaint filed with the Commission did not deprive the trial court of

subject-matter jurisdiction. Therefore, we find that the trial court erred in granting Protec’s plea

to the jurisdiction.

We reverse the trial court’s order granting Protec’s plea to the jurisdiction and remand this

case to the trial court for further proceedings consistent with this opinion.

Ralph K. Burgess
Justice

Date Submitted: June 3, 2016
Date Decided: October 25, 2016

10
Since it is not necessary to our disposition of this case, we express no opinion regarding the sufficiency of Reid’s
unverified complaint, and we need not address Reid’s second point of error.
17