Untitled Texas Attorney General Opinion

ATTORNEY GENERALOFTEXAS
GREG ABBOTT

December 13.2004

Mr. Lowry Mays, Chair Opinion No. GA-0281
Board of Regents
The Texas A&M University System Re: Whether the Texas Workforce Commission
Post Office Box C-l Civil Rights Division is properly interpreting the
College Station, Texas 77843 equal employment opportunity training requirement
of Labor Code section 21.556(a) (RQ-0240-GA)

Dear Mr. Mays:

The Texas A&M University System (“TAMU”) asks whether the Texas Workforce
Commission Civil Rights Division (the “Commission”) is properly interpreting the equal
employment opportunity training requirement ofLabor Code section 21.556(a).’

I. Backmound

Chapter 21 of the Labor Code prohibits employment discrimination in Texas. Its general
purposes include providing for the execution of federal antidiscrimination laws and identifying and
creating a state authority to enforce federal antidiscrimination policies. See TEX. LAB. CODE ANN.
$$ 21,001(l)-(2) (Vernon 1996). To this end, chapter 21 establishes the Texas Workforce
Commission Civil Rights Division, formerly the Texas Commission on Human Rights: as the
agency that may enforce the chapter and adopt procedural rules to carry out its purposes and policies.
See id. $21.003(a)(Z), (7) (Vernon Supp. 2004-05).

‘See Letter from Delmar L. Cain, General Counsel, The Texas A&M University System, to Honorable Greg
Abbon,Texas Attorney General (June 14,2004) [hereinaAerRequest Letter]; LetterattachedtoRequestLetterfromJohn
D. Moore, General Counsel, Texas Workforce Commission, to Delmar L. Cain, General Counsel, The Texas A&M
University System (June 7, 2004) [hereinat?er Exhibit 11; Letter attached to Request Letter from Katherine A. Antwi,
General Counsel, Texas Commission on Human Rights, to W. Jan Faber, Assistant General Counsel, Tbe Texas A&M
University System (Aug. 20,2003) [hereinafter Exhibit 21 (Request Letter and Exhibits on file with Opinion Committee,
also available af http:Nuww.oag.state.tx.us).

2SeeT~~. LAB.CODEANN.3 21.0015 (“The powers and duties exercised by the Commission onHummRights
under this chapter are transferred to the Texas Workforce Commission civil rights division. A reference in this chapter
to the ‘commission’ means the Texas Workforce Commission civil rights division.“); see also id 5s 301.151-,153
(Vernon Supp. 2004-05) (establishing the Civil Rights Division as an independent division in the Texas Workforce
Commission governed by the “human rights commission”).
Mr. Lowry Mays - Page 2 (GA-0281)

Relevant to TAMU’s inquiry, chapter 21 outlines a formal process by which a person
claiming to be aggrieved by an unlawful employment practice may tile a complaint with the
Commission and have that complaint reviewed to determine if there is reasonable cause to believe
that the employment practice was discriminatory. Seegenerally id. 5s 21.201-,211 (Vernon 1996)
(subchapter E). Before the Commission will review a complaint, the complaint must meet certain
statutory requirements, which include providing the facts that establish the basis of the complaint.
See id. 5 21.201. If the Commission determines that there is reasonable cause to believe that
discrimination has likely occurred, then the Commission will endeavor to eliminate the alleged
unlawful employment practice by informal dispute resolution methods. See id. 5 21.207. Should
that fail, the Commission may tile a civil suit against the respondent, see id. 3 21.25 1, or provide the
complainant with written notice of the complainant’s right to file a civil action, see id. 5 21.252.

TAMU asks about section 21.556 of the Labor Code, which prescribes equal employment
opportunity training for state agencies that have received three or more employment discrimination
complaints within a fiscal year. See Request Letter, supra note 1, at 1; see also TEX. LAB. CODE
ANN. 5 21.556 (Vernon Supp. 2004-05). The Commission is charged with adopting minimum
standards for a training program and must approve a person, entity, or state agency to provide
training so long as the program complies with the Commission’s standards. See TEX. LAB. CODE
ANN. 5 21.556(d) (Vernon Supp. 2004-05). Agencies required to participate in the training program
must pay the program’s costs or reimburse the Commission or state agency that provides the training
through interagency contract, See id. 5 21.556(e). Ifthe Commission does not conduct the training
for a state agency, that state agency must provide the Commission with documentation of the
training. See id. 4 21.556(c).

Specifically, TAMU inquires about section 21.556(a), which establishes the circumstances
under which a state agency must receive the required equal employment opportunity training:

A state agency that receives three or more complaints of employment
discrimination in a fiscal year, other than complaints determined to
be without merit, shall provide a comprehensive equal employment
opportunity training program to appropriate supervisory and
managerial employees.

Id. 5 21.556(a) (emphasis added). Chapter 21 does not define the term “merit,“nor does it establish
a process for assessing whether a complaint is “without merit.” However, a Commission rule
establishes a process for assessing a complaint’s merit for this purpose, which provides in part:

(a) The Commission will make a determination if a complaint of
employment discrimination is with or without merit by analyzing
complaints filed by employees of state agencies or applicants for
employment with state agencies, with either the Commission or the
United States Equal Employment Opportunity Commission
(“EEOC”), to ascertain whether the complainant has met his or her
burden of providing sufficient factual evidence to establish the
elements of a prima facie case of employment discrimination as
Mr. Lowry Mays - Page 3 (GA-0281)

delineated by the United States Supreme Court (“Supreme Court”).
If a complaint is determined to have met the elements of a prima facie
case, then the complaint will be administratively processed [through]
the Commission’s or EEOC’s investigation procedures. If the
Commission makes a determination that a complaint has met both a
Supreme Court [prima facie] test. and an administrative processing
test of merit, a state agency will be determined to have a complaint of
merit assessed against them.

(b) If a complainant. fails to meet his or her burden of establishing
the elements of aprima facie case as outlined by the Supreme Court,
is prevented from filing a complaint for jurisdictional reasons, or
provides self-defeating evidence on the face of his or her complaint
that shows the complaint is defective, then the complaint will not be
administratively processed nor determined to be with merit.

29 TEX. REG. 3653 (2004) (to be codified at 40 TEX. ADMIN. CODE 5 819,18(a)-(b)) (the “Rule”).3

TAMU informs us that it has been notified by the Commission that it must provide equal
employment opportunity training because three or more complaints of employment discrimination
were tiled against TAMU during the 2004 fiscal year. See Request Letter, supra note 1, at 1; see
also TEX. LAB. CODE ANN. 5 21.556(a) (Vernon Supp. 2004-05).4 TAMU contends, however,
that the Commission’s notification is baseless because the Commission’s test for determining
merit contravenes chapter 21. See Request Letter, supra note 1, at 1. TAMU suggests that a
discrimination complaint triggers the section 21.556(a) trainingrequirement onlyifthe Commission
has determined in the complaint review process outlined in chapter 21 that there is “reasonable
cause” to believe that discrimination has occurred. See id. at 6; see also TEX. LAB. CODE ANN.
$9 21.204-,206 (Vernon 1996). By contrast, the Commission maintains that the process for
determining a complaint’s merit for purposes of the training requirement is distinct from a finding
of reasonable cause.’ TAMU asks, essentially, which of the two interpretations is correct. See
Request Letter, supra note 1, at 1. TAMU also questions the Commission’s interpretation of the
Rule. See id. at 5-6.

‘In its letter, TAMU refers to section 323.8 as the rule in question. Section 323.8 was renumbered as section
819.18. See 29 TEX. REG. 3653 (2004) (to be codified at 40 TEX.ADMIN.CODE$819.18). We will refer to the rule by
its most recent codification.

?AMU notes: “The letter from the commission did not identify or provide any details concerning the
complaints.” Request Letter, supra note 1, at 8. Instead, the letter only identified the complaints as having been “tiled.”
See id We were not provided with a copy of this March letter, but we assume for the purposes of this opinion that the
Commission used “filed” as shorthand to describe complaints that had been filed and deemed meritorious by the
Commissionaccording to section21,556(a) and the Rule. Neither& Commissionnor TAMU suggests that the training
requirement may be triggered merely by filing a complaint. We agree. See Tut. LAB. CODEANN. 5 21.556 (Vernon
Supp. 2004-05); 29 TEX. REG. 3653 (2004) (to be codified at 40 TEX.ADMIN.CODE5 819.18(a)-(b)).

‘see Brief from Don Ballard, Deputy General Counsel, Texas Workforce Commission, to Honorable Greg
Abbott, Texas Attorney General, at 4 (Aug. 2,2004) (on file with Opinion Committee) [hereinafter Commission Brief].
Mr. Lowry Mays - Page 4 (GA-0281)

II. Analysis

TAMU suggests that the Rule exceeds the Commission’s statutory authority. To address its
concerns, we must interpret the relevant Labor Code provisions and determine whether the Rule
comports with the Commission’s statutory authority.

In construing section 21.556 and chapter 21, we must give effect to the legislature’s intent.
See TEX. GOV’T CODE ANN. $5 311.021, .023 (Vernon 1998); Albertson’s, Inc. v. Sinclair, 984
S.W.2d 958,960 (Tex. 1999). To do so, we must first attempt to construe statutes according to their
plain language, see In ye Canales, 52 S.W.3d 698, 702 (Tex. 2001), and must consider section
21.556in thecontext ofchapter 21 as awhole,see Helena Chem. Co. v. Wilkins, 47 S.W,3d486,494
(Tex. 2001); see also TEX. GOV’T CODE ANN. 5 311 .Ol l(a) (Vernon 1998) (words and phrases to
be read in context). We may also consider, among other things, a statute’s objectives, the legislative
history, the consequences of a particular construction, and its administrative construction. SeeTEX.
GOV’T CODE ANN. 5 311.023 (Vernon 1998); see also id. 5 311.021(2)-(4) (“In enacting a statute,
it is presumed that the entire statute is intended to be effectivet,] a just and reasonable result is
intended[, and] a result feasible of execution is intended .“).

In deciding whether the Commission, an administrative agency, has exceeded its rulemaking
powers, the determinative factor is whether the rule’s provisions are “in harmony” with the general
objectives of the statute. See Edgewood Indep. Sch. Dist. Y. Meno, 917 S.W.2d 717, 750 (Tex.
1995). In determining whether a rule is in harmony with an act’s general objectives, courts look to
all applicable provisions of that act, rather than one particular section. See Gerst v. Oak CL~Sav.
&Loan Ass’n, 432 S.W.2d 702, 706 (Tex. 1968). Moreover, construction of a statute in the rules
of the administrative agency charged with the statute’s enforcement “is entitled to ‘serious
consideration,’ so long as the construction is reasonable and does not contradict the plain language
of the statute.” Tarrant Appraisal Dist. v. Moore, 845 S.W.2d 820, 823 (Tex. 1993) (quoting
Standford v. Butler, 181 S.W.2d 269,273 (Tex. 1944)); see also Tex. Att’y Gen. Op. No. GA-0233
(2004) at 4 (stating that so long as an agency’s interpretation of a statute is a reasonable one that does
not do violence to the statutory language, this office will defer to it).

A. Whether the Rule Is Invalid for Failing to Equate Merit with Reasonable Cause

First we address TAMU’s contention that the Commission has exceeded its
rulemaking authority under section 21.556 because the Rule does not equate the statutory phrase
“complaints determined to be without merit” with complaints for which the Commission has found
no reasonable cause. See Request Letter, supra note 1, at 2-3; see also TEX. LAB. CODE ANN.
5 21.556(a) (Vernon Supp. 2004-05).

Section 21.204 of the Labor Code requires the Commission’s executive director, or the
director’s designee, to investigate an employment discrimination complaint filed pursuant to chapter
21 and to “determine if there is reasonable cause to believe that the respondent engaged in an
unlawful employment practice as alleged in the complaint.” TEX. LAB. CODE ANN. 5 21.204(a)
(Vernon 1996). Though chapter 21 does not describe what form an investigation is to take, its plain
language indicates that the investigation is to go beyond the allegations stated in the complaint and
Mr. Lowry Mays - Page 5 (GA-0281)

will consist of a review of the evidence supporting the allegations. See id. $5 21.205 (requiring the
executive director or fhe director’s designee on a finding that a complaint does not show reasonable
cause to issue a written determination “that the evidence does not support the complaint”), ,206
(requiring the executive director or the director’s designee on a finding that a complaint does show
reasonable cause to review with a panel of three commissioners “the evidence in the record”)
(emphasis added). Therefore, a determination of reasonable cause necessarily means that a
complainant has met the threshold burden of facially stating a legitimate claim and has offered some
proof to support a finding by the Commission that discrimination has likely occurred.

The Commission contends that the legislature intended to create two thresholds: when met,
the first establishes a complaint as meritorious for purposes of the training requirement, and the
second supports a finding of reasonable cause. See Commission Brief, supra note 5, at 5. The
statute’s plain language validates this position. Section 21.556(a) does not use the term “reasonable
cause”; rather, it uses the term “merit.” See TEX. LAB. CODE ANN. $2 1.556(a) (Vernon Supp. 2004-
05) (“complaints other than complaints determined to be without merit”). We presume that every
word in a statute is used for a purpose. See Jessen Assocs., Inc. v. Bullock, 531 S.W.2d 593, 600
(Tex. 1975). Given the statutory language, it is reasonable for the Commission to distinguish an
assessment of “merit” from an assessment of “reasonable cause.”

The legislative history also supports the Commission’s position. Section 21.556 was adopted
in 1999 following the Sunset Commission’s review of the Texas Commission on Human Rights.
See Act ofMay 17,1999,76th Leg., R.S., ch. 872,s 15, 1999 Tex. Gen. Laws 3556,3565; HOUSE
COMM. ON STATE AFFAIRS, BILL ANALYSIS, Tex. H.B. 1976, 76th Leg., R.S. (1999) (enrolled
version, “Background and Purpose”) (“After reviewing the commission, the Sunset Advisory
Commission had recommended its continuation and other statutory modifications.“). According to
the Sunset Advisory Commission Staff Report, the state has an interest in preventing and resolving
discriminatory activity before it results in costly litigation. See SUNSET ADVISORY COMMISSION
STAFF REPORT, TEXAS COMMISSION ON HUMAN RIGHTS, at 7 (October 1998). To this end, fhe
Sunset Advisory Commission advised the legislature to adopt the language of section 21.556(a),
which had formerly been contained in an appropriations rider,6 to “ensure that the Commission
continues to provide comprehensive training to familiarize all state agencies and public institutions
of higher education with [equal employment opportunity] laws and to prevent employment
discrimination from occurring.” Id. at 26. Thus, section 21.556(a)‘s purpose is not to remedy
particular instances of discrimination or penalize state agencies after the fact. Rather, its purpose
is to require training of state agency personnel in order to prevent employment discrimination. When
viewed in the context of this purpose, it is reasonable to conclude that the legislature did not intend
“merit” to rise to the level of“reasonable cause.” The Commission’s construction of“without merit”
not to require a “reasonable cause” finding gives substance to and is consistent with section
21.556(a)‘s broad preventative purpose.

Finally, the Commission’s interpretation of “without merit” is consistent with the
legislature’s use of the phrase in another statute. Section 1071.402 of the Occupations Code

%keTex. Att’y Gen. op. No. DM-497 (1998) at 6 ( concluding that an appropriations act rider, similar to what
is now section21.556,attempted to amend general law in violationof article III, section35of the Texas Constitution).
Mr. Lowry Mays - Page 6 (GA-0281)

authorizes the Texas Board of Professional Land Surveying to investigate formal complaints tiled
against licensed land surveyors for alleged violations of the Professional Land Surveying Practices
Act. See TEX. Oct. CODE ANN. 9 1071.402 (Vernon 2004). Section 1071.402 requires the board
to assign an employee or to contract with an investigator to investigate each alleged violation. See
id. 5 1071.402(b). The person investigating the alleged violation may dismiss a complaint that is
without merit, or determine whether a licensed land surveyor has committed the violation and
recommend sanctions to the board. See id. § 1071.402(c)(l)-(2) (emphasis added). In this instance,
the legislature has used “merit” to indicate a complaint that facially states a claim, which if proven
would constitute a violation of that act. Where the same or similar word is used “in the same
connection in different statutes,” it will be given the same meaning in one as it has in the other,
unless there is something to indicate that a different meaning was intended. L&WSurco Mfg., Inc.
Y. Winn Tile Co., 580 S.W.2d 920, 926 (Tex. Civ. App.-Tyler 1979, writ dism’d).

In sum, because it is consistent with the statute’s plain language, comports with the statute’s
legislative purpose, and is consistent with the legislature’s use of the phrase “without merit” in a
similar statutory context, we conclude that the Commission’s interpretation of section 21.556 to
distinguish between an assessment of“merit” and an assessment of “reasonable cause” is reasonable.

B. Whether the Rule Misapplies the United States Supreme Court Test

TAMU also argues that the Rule fails to incorporate legal principles for resolving
discrimination complaints that are required by the United States Supreme Court. See Request Letter,
supra note 1, at 4. Specifically, TAMU argues that the Commission misapplies the McDonnell
Douglas test. See id.; see also McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

The McDonnell Douglas test outlines a burden-shifting scheme by which the parties’
evidence is evaluated. See McDonnell Douglas, 411 U.S. at 801-03. The scheme requires the
plaintiff in an employment discrimination suit first to establish a prima facie case. See id. If that
burden is satisfied, the defendant then must articulate a legitimate nondiscriminatory reason for
taking the employment action; if the defendant satisfies that burden, the plaintiff must then prove
that the defendant’s stated reason is a pretext for discrimination. See id.

The Rule requires the Commission, in assessing whether a claim is with or without merit, “to
ascertain whether the complainant has met [the complainant’s] burden ofproviding sufficient factual
evidence to establish the elements of aprima facie case of employment discrimination as delineated
by the United States Supreme Court.” 29 TEX. REG. 3653 (2004) (to be codified at 40 TEX. ADMIN.
CODE 3 819.18(a)) (emphasis added). TAMU suggests that the Rule is invalid because the
Commission has selectively picked the first part of the McDonnell Douglas test, which the
Commission favors, while ignoring the remainder of the test. See Request Letter, supra note 1, at
4-5.

We have already established that the Commission has reasonably construed the term “merit”
in section 21.556(a) to be distinct from the term “reasonable cause.” The McDonnell Douglas test
establishes the burden of proof in the context of a trial on the merits to determine whether
discrimination has occurred. See McDonnell Douglas, 411 US. at 801.03 (requiring the plaintiff
Mr. Lowry Mays - Page 7 (GA-0281)

and defendant to come forward with evidence). Section 21.556(a) does not require the Commission
to use the McDonneN Douglas test to determine whether a complaint triggers the training
requirement, and the Rule reasonably incorporates only the test’s first part.

C. Whether the Commission is Misinterpreting the Rule

Finally, TAMU argues that even if the Commission is authorized to adopt the Rule,
the Commission is misinterpreting it. See Request Letter, supra note 1, at 5-6. In particular, TAMU
notes that the Rule also includes a second part, an “administrative processing test” of merit, which
the Rule fails to define. See id. at 5. The Rule’s section 819.18(a) reads in relevant part:

If a complaint is determined to have met the elements of a prima facie
case, then the complaint will be administrativelyprocessed [through]
the Commission’s or EEOC’s investigation procedures. If the
Commission makes a determination that a complaint has met both a
Supreme Court [prima facie] test . and an administrative
processing test ofmerit, a state agency will be determined to have a
complaint of merit assessed against them.

29 TEX. REG. 3653 (2004) (to be codified at 40 TEX. ADMIN. CODE § 819.18(a)) (emphasis added).
In a letter to TAMU, Commission staff clarified this part ofthe Rule by stating that it addresses the
Commission’s jurisdiction over a complaint. See Request Letter, supra note 1, at 5; Exhibit 2, supra
note 1. That is, if the complaint falls within the Commission’s jurisdiction, then the complaint
passes the administrative processing test of merit. See Request Letter, supra note 1, at 5-6; Exhibit
2, supra note 1. TAMU counters that this explanation is inconsistent with the Rule. See Request
Letter, supra note 1, at 6. Instead, TAMU asserts that this language in the Rule should tie the
“administrative processing” test of merit to formal investigation procedures outlined in chapter 21
of the Labor Code. See id, see also TEX. LAB. CODEANN. 5 21.204(a) (Vernon 1996) (directing the
Commission to investigate an employment discrimination complaint for reasonable cause). Thus,
TAMU argues that the Rule itself necessarily requires a finding of reasonable cause before a
complaint can be counted as meritorious. See Request Letter, supra note 1, at 6.

We construe administrative rules in the same way as statutes, and an agency’s interpretation
of its own rule is entitled to deference. See Pub. Util. Comm ‘n v. GulfStates Utils. Co., 809 S.W.2d
201,207 (Tex. 1991). However, ifan agency fails to follow the clear, unambiguous language ofits
own regulation, it exceeds its authority. See id.

Here, we question the Commission’s assertion that the administrative processing test ofmcrit
is nothing more than a finding that the Commission has jurisdiction over a complaint. See Request
Letter, supra note I, at 5-6; Exhibit 2, supra note I.’ The Rule’s subsection @) reads:

‘We rely on the Commission’s letter attached to the TAMU request letter as Exhibit 2. See Exhibit 2, supra
note 1. The Commission did not address the meaning of “administrative processing test of merit” in its brief to this
office. See Commission Brief, supra note 5.
Mr. Lowry Mays - Page 8 (GA-0281)

If a complainant. fails to meet his or her burden of establishing the
elements of a prima facie case as outlined by the Supreme Court, is
prevented from filing a complaint for jurisdictional reasons, or
provides self-defeating evidence on the face of his or her complaint
that shows the complaint is defective, then the complaint will not be
administratively processed nor determined to be with merit.

29 TEX. REG. 3653 (2004) (to be codified at 40 TEX. ADMIN. CODE 5 819.18(b) (emphasis added)).
By its plain language, subsection (b) suggests that when the Commission lacks jurisdiction over a
complaint, the complaint will not be administratively processed. Because subsection (b) suggests
that establishing jurisdiction is a prerequisite to a complaint being administratively processed, the
Rule’s language does not appear to support the Commission’s construction that administrative
processing is merely a determination ofjurisdiction. Nevertheless, we disagree that this part of the
Rule necessarily requires a finding of reasonable cause before an employment discrimination
complaint can be counted as meritorious. Nothing in the Rule supports the construction that meeting
the “administrative processing test of merit” is equivalent to a reasonable cause finding.

In sum, the Commission does not appear to have given a meaning to the “administrative
processing test of merit” that is consistent with the Rule as a whole. However, we cannot agree with
TAMU that this part of the Rule limits the Commission to counting only those complaints for which
it has found reasonable cause in determining that an agency must provide equal employment
opportunity training under section 21.556(a).
Mr. Lowry Mays - Page 9 (GA-0281)

SUMMARY

Section 21.556(a) of the Labor Code requires a state agency
to provide equal employment opportunity training after three
employment discrimination complaints have been filed against the
agency other than complaints determined to be without merit.
Section 21.556 does not require that the Texas Workforce
Commission Civil Rights Division find reasonable cause that
discrimination has likely occurred in order to determine that a
complaint counts toward the training requirement. The Texas
Workforce Commission Civil Rights Division rule establishing a
procedure to determine whether a complaint is without merit
reasonably construes section 21.556(a). However, the Commission’s
interpretation of the rule must be consistent with the rule’s plain
language.

Very truly yours,

BARRY R. MCBEE
First Assistant Attorney General

DON R. WILLETT
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Daniel C. Bradford
Assistant Attorney General, Opinion Committee