IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-50181
EVA VIELMA,
Plaintiff-Appellant,
versus
EUREKA COMPANY,
Defendant-Appellee.
Appeal from the United States District Court
for the Western District of Texas
July 20, 2000
Before GARWOOD, WIENER and DENNIS, Circuit Judges.
GARWOOD, Circuit Judge:
Plaintiff-appellant Eva Vielma (Vielma) brought this action
against her employer, defendant-appellee Eureka Company (Eureka),
alleging Texas law claims of age and disability discrimination.
The district court found that Vielma’s state claims were time-
barred because she had not filed suit in state court within sixty
days of receiving her “right to sue” letter from the Equal
Employment Opportunity Commission (EEOC). Accordingly, the
district court granted summary judgment in favor of Eureka. The
district court also denied her motions to reconsider and to amend
her complaint to add federal discrimination claims. Vielma now
appeals the grant of summary judgment on her state claims, as well
as the denial of her motion to amend. We hold that Vielma’s state
claims were not time-barred, and accordingly reverse the grant of
summary judgement regarding those claims and remand them. We
affirm, however, the denial of Vielma’s motion to amend.
Facts and Proceedings Below
Vielma had been an employee of Eureka in El Paso, Texas since
1993, first as an assembler and later as a quality control
inspector. In 1997, she received medical treatment for work-
related injuries. Though her doctor released her to work with
certain conditions on the kind of work she could perform, Vielma
was unsatisfied with her subsequent job assignments from Eureka.
Ultimately, Eureka informed her that it could not return her to
work because it was unable to accommodate her medical restrictions.
On February 3, 1998, Vielma filed a charge with the EEOC El Paso,
Texas, Area Office, alleging that Eureka had discriminated against
her on the bases of age and disability. Under the Worksharing
Agreement between the EEOC and the Texas Commission on Human Rights
(TCHR), the analogous state agency, Vielma’s charge was effectively
filed with the TCHR on that date as well. See Griffin v. City of
Dallas, 26 F.3d 610, 612-13 (5th Cir. 1994) (“[U]pon the EEOC’s
receipt of the complaint, the TCHR, for all legal and practical
purposes, [also] received the complaint.”). The EEOC dismissed her
2
charge and on May 4, 1998, Vielma received from the EEOC El Paso
Area Office a Dismissal and Notice of Rights, commonly known as a
“right to sue” letter. This form letter provided in relevant part:
“Your lawsuit must be filed WITHIN 90 DAYS of your
receipt of this Notice; otherwise, your right to sue
based on this charge will be lost. (The time limit for
filing suit based on a state claim may be different.)”
On August 3, 1998, Vielma filed suit in Texas state court,
alleging that Eureka had discriminated against her because of her
age and disability in violation of the Texas Commission on Human
Rights Act (TCHRA).1 Vielma requested and on August 12, 1998
received the TCHR version of a “right to sue” letter, titled
“Notice of Right to File a Civil Action.” Like the EEOC letter,
the TCHR letter notified Vielma that her claims had been dismissed
and that she had a certain period of time within which to file suit
under the TCHRA. The letter stated in relevant part: “PLEASE BE
ADVISED THAT YOU HAVE SIXTY (60) DAYS FROM THE RECEIPT OF THIS
NOTICE TO FILE THIS CIVIL ACTION.”
On September 3, 1998, Eureka filed its answer and removed the
case to federal district court on the basis of diversity
jurisdiction. On September 24, 1998, Eureka filed its motion for
1
As the district court noted, Vielma filed her state suit on
the ninety-first day after the issuance of the EEOC letter, which
was presumably within the federal limitations period (i.e., ninety
days from her receipt of the letter).
3
summary judgment, alleging that Vielma’s claims were time-barred
because she had not filed her state suit within sixty days of
receiving the EEOC right to sue letter. The district court
conducted a hearing on the motion on December 15, 1998, and granted
the motion on January 21, 1999 in an order with reasons. The court
held that the EEOC right to sue letter constituted notice for
purposes of the TCHRA and that the sixty day limitations period for
bringing the state claim began when Vielma received the EEOC
letter. On the same day the district court entered on a separate
document its judgment dismissing the complaint with prejudice.
On January 29, 1999, Vielma filed a motion for
reconsideration, arguing that her state claim was not time-barred
because receipt of the EEOC letter did not trigger the “right to
sue” period under the TCHRA. On the same day, she also filed a
motion to amend her earlier complaint, contending that the district
court should allow her to include federal age and disability
discrimination claims in her complaint. The district court denied
these motions on March 23, 1999. Vielma now appeals the district
court’s grant of summary judgment on her state claims, as well as
its denial of her motion to amend.
Discussion
I. Triggering the TCHRA Sixty-Day Period
The primary issue raised by Vielma in this appeal is a
relatively narrow one: whether the receipt of an EEOC “right to
4
sue” letter, which starts the ninety-day period within which a
complainant may bring a federal discrimination suit, also starts
the sixty-day period within which a complainant may file suit under
the TCHRA. The district court answered that question affirmatively
and Vielma, unsurprisingly, challenges that conclusion. This is a
question of first impression and depends in large part on the
interpretation of the TCHRA.
This Court reviews the grant of summary judgment de novo,
applying the same criteria the district court was obliged to apply.
See Norman v. Apache Corp., 19 F.3d 1017, 1021 (5th Cir. 1994). In
this appeal, there are no facts in dispute and the district court’s
decision to grant summary judgment in favor of Eureka was based
purely on an interpretation of Texas law, which we also review de
novo. See Floors Unlimited, Inc. v. Fieldcrest Cannon, Inc., 55
F.3d 181, 184 (5th Cir. 1995). When applying state law, “we
interpret the state statue the way we believe the state Supreme
Court would, based on prior precedent, legislation, and relevant
commentary.” See F.D.I.C. v. Shaid, 142 F.3d 260, 261 (5th Cir.
1998). If a state’s highest court has not spoken on the issue, we
look to the intermediate appellate courts for guidance. See Wood
v. Armco, Inc., 814 F.2d 211, 213 n.5 (5th Cir. 1987).
A. The Relationship Between the EEOC and the TCHR
The TCHRA “establishes a comprehensive administrative review
system to carry out the policies embodied in Title VII,” as well as
5
the Americans with Disabilities Act (ADA). See Schroeder v. Texas
Iron Works, Inc., 813 S.W.2d 483, 485 (Tex. 1991); see also TEX.
LABOR CODE ANN. § 21.001(1)-(3) (West 1996). One of the primary
goals of the statute is to coordinate state law with federal law in
the area of employment discrimination. See TEX. LABOR CODE ANN. §
21.001(1)-(2). This dual state-federal system has resulted in
similar, though not always identical, procedures for combating
employment discrimination, and overlapping, though not always
interchangeable, spheres of authority. Under 42 U.S.C. § 2000e-
5(c) and 29 U.S.C. § 633(b), if a state has its own anti-
discrimination laws and corresponding agency (as Texas does), the
EEOC must defer its processing of a discrimination complaint until
the state has had at least sixty days to investigate and attempt to
resolve the complaint. See Schroeder, 813 S.W.2d at 485.
Accordingly, the TCHRA created the TCHR as a “deferral agency” so
that claims of employment (and now disability) discrimination could
be addressed at the state level first. See id.
In both the federal and Texas state systems, a complainant
must file a complaint with the appropriate agency before filing
suit. See id. at 487. The complainant must do so within 180 days
of the alleged unlawful practice. See 42 U.S.C. § 2000e-5(e)(1);
TEX. LABOR CODE ANN. § 21.002(a). In 1989, the TCHR and the EEOC
entered a Worksharing Agreement, to be amended annually, which was
intended to minimize unnecessary duplication of effort and make the
6
operations of the two agencies more efficient. See Griffin, 26
F.3d at 612.2 In the 1998 Worksharing Agreement, “the EEOC and the
[TCHR] each designate the other as its agent for the purpose of
receiving and drafting charges, including those that are not
jurisdictional with the agency that initially receives the
charges.”3 1998 Worksharing Agreement § II(A). In a case like
this one, when a complainant files her initial charge with the
EEOC, her charge will also be considered filed with the TCHR. See
Griffin, 26 F.3d at 612-13; Price v. Philadelphia Am. Life Ins.
Co., 934 S.W.2d 771, 773 (Tex. App.–Houston [14th Dist.] 1996, no
writ).4
In the case of a complainant pursuing state claims under the
TCHRA, if the TCHR dismisses the complaint or has not resolved it
within 180 days, it must notify the complainant in writing. See
TEX. LABOR CODE ANN. § 21.208. A complainant who receives notice of
dismissal may request a written notice of her right to file a civil
2
42 U.S.C. § 2000e-4(g)(1) empowers the EEOC to enter into
these kinds of agreements with state and local agencies.
3
As Vielma points out, the 1998 Worksharing Agreement was
not part of the record. However, it is essentially unchanged from
the 1989 Agreement, which this Court cited in Griffin: “The [TCHR]
by this agreement designates and establishes the EEOC as a limited
agent of the [TCHR] for the purpose of receiving charges on behalf
of the [TCHR] and EEOC agrees to receive such charges.” Griffin,
26 F.3d at 612 (quoting Worksharing Agreement § 2(a)).
4
There is also considerable overlap between the two agencies
in processing complaints and sharing investigatory information.
Those matters are not relevant to this appeal.
7
action. See id. § 21.252. Once the complainant receives notice of
her right to file a civil action, she must do so within sixty days.
See id. § 21.254. The complainant does not have to wait for this
letter before filing suit, however. See id. § 21.252(d) (“Failure
to issue the notice of the complainant’s right to file a civil
action does not affect the complainant’s right under this
subchapter to bring a civil action against the respondent.”); see
also Eckerdt v. Frostex Foods, Inc., 802 S.W.2d 70, 71 (Tex.
App.–Austin 1990, no writ). Whether she receives a letter or not,
the complainant must institute her state suit within two years of
filing the administrative complaint. See id. § 21.256.
The federal system is similar, but not identical. As noted
above, a complainant alleging violations of federal law must file
the complaint within 180 days of the conduct at issue. The EEOC
will launch its own investigation, and if it decides to dismiss the
complaint, it will notify the complainant of this dismissal and her
“right to sue.” 42 U.S.C. § 2000e-5(f)(1).5 As the district court
noted, the principal differences between the two systems are that
in the federal system mailing the “right to sue” letter is
5
This section provides that if the charge is dismissed or
not resolved in 180 days, “the Commission . . . shall so notify the
person aggrieved and within ninety days after the giving of such
notice a civil action may be brought against the respondent named
in the charge.” In the federal system, this information appears
all in one letter, unlike the Texas process, which evidently
contemplates the mandatory notice of dismissal and then the mailing
of the “right to sue” letter only upon request.
8
mandatory and that receipt of the right to sue letter is generally
necessary before filing federal suit. See id.; see also Carter v.
South Cent. Bell, 912 F.2d 832, 841 (5th Cir. 1990) (noting that
the right to sue letter is usually a condition precedent, though
not a jurisdictional prerequisite, to bringing a federal employment
discrimination cause of action). Most relevant to our inquiry, the
federal complainant must file suit within ninety days of receipt of
the right to sue letter, as opposed to sixty days under the TCHRA.
In the present case, the district court granted summary
judgment in favor of Eureka because it concluded that Vielma’s
claims under the TCHRA were time-barred. Specifically, the
district court found that she had not complied with section 21.254,
which provides that “[w]ithin 60 days after the date a notice of
the right to file a civil action is received, the complainant may
bring a civil action against the respondent.” The district court
found that in light of the Worksharing Agreement and two
unpublished opinions from the Northern District of Texas, the
reference to “a notice” in section 21.254 encompassed not only the
notice of a right to file a civil action specified in section
21.252, but also a “right to sue” letter issued by the EEOC. On
appeal, Vielma contends that section 21.254 refers only to a “right
to file a civil action” letter from the TCHR; under her
interpretation, she would not be time-barred because she filed her
state suit before receiving her TCHR letter. Eureka, naturally
9
enough, agrees with the district court’s more expansive
interpretation.
The EEOC acted as the TCHR’s “agent” at least for the purpose
of receiving and processing Vielma’s original complaint. The
relevant inquiry, then, is defining the scope of the EEOC’s agency
for the TCHR in this context, that is, whether in addition to
receiving and processing complaints for the TCHR, the EEOC can also
notify a complainant of her “right to file a civil action” under
state law by issuing her a federal “right to sue” letter. We
conclude that it cannot.
At the outset, we note that while the coordinated efforts of
the EEEOC and state agencies are complicated and sometimes
overlapping, the Supreme Court has observed that the limitations
periods for federal and state anti-discrimination claims are
independent. See E.E.O.C. v. Commercial Office Prods. Co., 108
S.Ct. 1666, 1675-76 (1988) (concluding that in light of Title VII’s
broad remedial purpose, untimely filing under state law did not
preclude application of extended federal filing period for certain
categories of cases); Oscar Mayer & Co. v. Evans, 99 S.Ct. 2066,
2073 (1979) (finding that complainant’s failure to file age
discrimination claim within a state limitations period did not
automatically render his federal claim untimely). In Commercial
Office Products, the Court found that “state time limits for filing
discrimination claims do not determine the applicable federal time
10
limit.” Id. at 1675. It also noted that in the absence of any
“express reference to timeliness under state law,” the federal
statutes should not “import[] such a hurdle” into “a remedial
scheme in which laypersons, rather than lawyers, are expected to
initiate the process.” Id. at 1675-76 (citing Oscar Mayer, 99
S.Ct. at 2073-74); see also Laquaglia v. Rio Hotel & Casino, Inc.,
186 F.3d 1172, 1177 (9th Cir. 1999) (finding procedural requirement
that untimely state filing and forwarding of complaint to EEOC
time-bars federal claim to be “entirely at odds with the purpose of
the worksharing agreement and with Title VII”). These policy
observations are equally applicable to the TCHRA: importing extra
procedural hurdles from the federal system into the TCHRA would
contravene the purpose of the statute and the Worksharing
Agreement. The agreements are in place to benefit not only the
agencies but also the complainants, who do not have to file their
complaints twice. In light of these considerations, and in the
absence of any clear statutory command to the contrary, we cannot
agree with the district court that an EEOC “right to sue” letter is
interchangeable with a TCHR “right to file a civil action” letter
and thus capable of triggering the TCHRA’s sixty-day filing period.
B. Language and Construction of the TCHRA
We find support for this conclusion not only in the Supreme
Court’s guidance, but also in the TCHRA itself. Section 21.254 of
the Texas Labor Code (the relevant provision of the TCHRA) is
11
undeniably somewhat ambiguous; indeed, its ambiguity forms the
basis of this dispute. Section 21.254 provides that “[w]ithin 60
days after the date a notice of the right to file a civil action is
received, the complainant may bring a civil action against the
respondent.” As the district court rightly observed, this section
does not specify which “notice” will trigger the sixty-day period;
it lacks a clear modifier, such as “notice from the commission.”
There are, however, several factors that militate strongly in favor
of construing section 21.254 to refer only to a “right to file a
civil action” letter issued by the TCHR.
First, the language of the statute supports this reading.
When the terms of a statute are ambiguous, we will employ cannons
of statutory construction to discern the legislature’s intent. See
Estate of Padilla v. Charter Oaks Fire Ins. Co., 843 S.W.2d 196,
198 (Tex. App.–Dallas 1992, writ denied). Section 21.254 refers
not merely to “a notice,” but to “a notice of the right to file a
civil action.” Section 21.252 employs the same term: it provides
that a complainant who receives notice that her complaint has not
been either dismissed or resolved “is entitled to request from the
commission a written notice of the complainant’s right to file a
civil action.” In the absence of some indication to the contrary,
we interpret words or phrases that appear repeatedly in a statute
to have the same meaning. See Boriack v. Boriack, 541 S.W.2d 237,
240 (Tex. App.–Corpus Christi 1976, writ dism’d) (“When a word or
12
a phrase is used in different parts of a statute, a clear meaning
appearing in one instance will be attached to it elsewhere.”).
There is no indication that the legislature intended section 21.254
to refer to anything other than the TCHR “right to file a civil
action” letter, and this Court thus should give the language in
section 21.254 the same meaning as the identical language in
section 21.252: that “a notice of right to file a civil action”
signifies the TCHR “right to file a civil action” letter only. The
presence of the indefinite article “a,” which the district relied
upon to support its reading of section 21.254, gives way to this
narrower reading in light of the statute’s repeated use of the
particular phrase “right to file a civil action.” This
interpretation thereby gives meaning to all the words in the
statute, while still retaining the same meaning for the recurring
term. See Padilla, 843 S.W.2d at 198 (“We give full effect to all
the statute’s language and not just one word or phrase.”).
Second, we note in passing that this term also appears as the
heading of the TCHR right to file a civil action letter, “Notice of
Right to File a Civil Action.” Moreover, the letter itself states
that it was issued pursuant to both sections 21.252 and 21.254.
Though the letter is not part of the statute, its use of the same
language that appears in sections 21.254 and 21.254 marginally
lends further credence to the interpretation that section 21.254's
reference to “a notice” in fact means “a” letter from the TCHR.
13
Third, and more importantly, the earlier version of the TCHRA
stated unambiguously that only the letter from the TCHRA would
start the sixty-day filing period. Before the recodification of
the Texas statutes began, section 7.01(a) of the TCHRA provided in
relevant part:
“If the complaint filed with the commission pursuant to
[the TCHRA] is dismissed by the commission, or if within
180 days after the date of filing of the complaint the
commission has not filed a civil action under this
section or has not successfully negotiated a conciliation
agreement between the complainant and respondent, the
commission shall so notify the complainant in writing by
certified mail. Within 60 days after the date of receipt
of the notice, a civil action may be brought by the
complainant against the respondent named in the charge .
. . .” VERNON’S ANN.CIV.STAT. art. 5221k, § 7.01(a)
(Vernon 1983) (emphasis added).
In that version of the statute, “the notice” clearly referred to
the letter from the TCHR; there was no need to repeat that point
(that is, to insert “from the commission” after “the notice”). Two
cases interpreting the TCHRA before recodification reached the same
conclusion. In Schroeder, the Texas Supreme Court discussed the
TCHR notification letter and stated that “[a]fter receipt of this
notice, the complainant has 60 days in which to bring a civil
action against the respondent.” See 813 S.W.2d at 486 (emphasis
added). The Court of Appeals in Eckerdt also considered the TCHR
letter to be the lone trigger for the 60 day filing period: “[t]he
language of this section states simply that a complainant may bring
suit within 60 days of receiving notice from the commission.” 802
S.W.2d at 71.
14
The only changes to the TCHRA since the legislature recodified
it in the Texas Labor Code are that the notice of dismissal and the
“right to file a civil action” letter are now two separate pieces
of correspondence and that in section 21.254 “the” has been changed
to “a.” The first difference is of no relevance to the triggering
of the sixty-day period, and the second, as noted above, does not
evince an intent to broaden the category of notice to include
receipts of federal “right to sue” letters as mechanisms that start
that period. “[W]hen the wording and the language in the
recodification is substantially the same and the functions of the
[topic at issue] are identical to that of the former article . . .
, it should be held that they convey the same intent and meaning.”
Deep E. Texas Reg’l Health and Mental Retardation Servs. v.
Kinnear, 877 S.W.2d 550, 562 (Tex. App.–Beaumont 1994, no writ).
In this case, the recodified TCHRA retains language that has been
varied only slightly and the functions of the TCHRA letter and the
triggering period are the same. Accordingly, we find that the
interpretations by Schroeder and Eckerdt of the TCHRA remain sound.
Finally, the two unreported decisions relied on by the
district court do not persuade us to the contrary. In Dean v.
Xerox Corp., 1997 WL 756574 (N.D. Tex. Nov. 25, 1997), the district
court held that the plaintiff’s TCHRA claim was time-barred under
section 21.254 because he did not file suit within sixty days of
receipt of the EEOC letter. Dean’s analysis of this issue is
15
fairly cursory, however: the district court merely recites the
language of section 21.254, observes that the defendant had
received an EEOC letter, and deems that fact sufficient to trigger
his “right to sue” period for purposes of the TCHRA. See id. at
*2. The other case, Battee v. Eckerd Drugs, Inc., 1997 WL 340941
(N.D. Tex. June 12, 1997), is similarly opaque. In Battee, the
district court dismissed the plaintiff’s TCHRA claims because he
failed to file suit within sixty days of receipt of the EEOC
letter. The entirety of the Battee court’s analysis amounts to a
citation of TCHRA section 21.254 in a footnote for the proposition
that claims in this situation are time-barred. See id. at *4 n.3.
Neither opinion discusses the structure of the TCHRA or the
possible complications involved in the relationship between the
EEOC and TCHR; they simply assume that the notification letters
from the EEOC and the TCHR are interchangeable.
C. Comparison with the Federal System
Our conclusion also finds support in the fact that in the
reverse situation, receipt of a TCHR letter would not trigger the
analogous EEOC ninety-day filing period. “The stated purposes of
the Texas act suggest that the state legislature intended it to
conform to the policies contained in the federal act; therefore, we
may consider how the federal act is implemented under clauses
similar to those at issue in the Texas act.” Eckerdt, 802 S.W.2d
at 72; see also Benavides v. Moore, 848 S.W.2d 190, 193 (Tex.
16
App.–Corpus Christi 1992, writ denied) (“When Texas case law fails
to address questions raised under the [TCHRA], we look to federal
case law for guidance.”). As Eureka concedes, 42 U.S.C. § 2000e-
5(f)(1) states only that the ninety-day period will be triggered by
receipt of a “right to sue” letter from the EEOC. Receipt of the
federal letter appears to be the exclusive mechanism for commencing
the federal filing period. See Muth v. Cobro Corp., 895 F. Supp.
254, 256 (E.D. Mo. 1995) (holding that the ninety-day period for
filing federal anti-discrimination action is triggered only by
receipt of EEOC “right to sue” letter); Black v. Brown Univ., 555
F.Supp. 880, 884 n.8 (D. R.I. 1983) (“This Court rejects
plaintiff’s assertion that the right-to-sue letter from the [Rhode
Island equal employment agency] is equivalent to the EEOC right-to-
sue letter. The plain language of 42 U.S.C. § 2000e-5(f)(1)
requires, as a condition precedent to litigating in federal court,
a right to sue letter issued by the EEOC.”); Foreman v. General
Motors Corp., 473 F. Supp. 166, 177 (E.D. Mich. 1979) (finding that
plaintiffs failed to satisfy the prerequisites for a Title VII suit
because they only received a “right to sue” letter from the state
agency, not the EEOC).
Despite this clear statutory language, Eureka relies on two
cases to argue that a TCHR “right to file a civil action” letter
also triggers the federal ninety-day filing period. Neither of
these cases is persuasive. In Dao v. Auchan Hypermarket, 96 F.3d
17
787 (5th Cir. 1996) (per curiam), this Court observed–in passing
dicta only–that “[section] 2000e-5(f)(1) provides that a civil
action must be commenced