### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-10-00867- CV

Sonya T horn Lop ez, A ppellan t

v.
Texas State Univer sity, Sherri H. Benn, an d Stella S ilva, App ellees

F ROM TH E DISTRI CT COURT O F H AY S CO UNTY, 207 TH JUDICI AL DISTRICT NO. 10- 0901 , H ONO RAB LE WI LLIAM H ENRY, JUDGE P RESIDING

C O N C U R R

I N G A N D D I S S E N T I N G O P I N I O N

L opez asse rt s t h i s sequenc e of events: she fired J ohnson; her supervisors reduc ed
her pay ; she filed a pay g rieva nce with TSU; and soon afte r, she was fired. Although I concur with

most of the majority ’s decision in this case , I write separ ately beca use I respe ctfully dissent from the majority ’s conc lusion that L opez’s claim that TSU reta liated ag ainst her f or filing a pay

g rieva nce is not fac tually rela ted to the reta liation claim for firing J ohnson stated in her EEOC char g e and thus
L opez failed to exhaust her administrative reme dies for the pay -g rieva nce claim. I also respe ctfully
dissent from the majority ’s conclusion that intake questionnaires s h o u l d b e considere d to assist
the court in deter

mining the scope o f t h e ch ar ge o n ly if (1) the fac ts set out in the questionnaire

are a rea sonable conseque nce of a claim set forth in the EEOC char g e, and (2) the emplo y er had

actua l knowledg e of the contents of the questionnaire during the course of the EEOC investiga tion.
I nstead, I would follow the approa ch of those fede ral courts that have considere d all the informationprovided by the employ ee to the ag ency when deter mining whether a particula r claim asser

ted in an employ ee’ s lawsuit would be within the scope of the EEOC investiga tion that could rea sonably be expected to g row out of the initial char g es of discrimination. As a result, I would also rema nd to the
trial court L opez’s claim that TSU reta liated ag ainst her f or filing a pay

g rieva nce.
L opez’s EEOC char g e asser ted that she was wrong fully discharg ed from her position
in October 2009 and listed the alleg edly prete x tual rea sons for her discharg e. She explained why she
believes that the rea sons she was g iven for her discharg e wer e prete x tual: “I have not rec eived any prior wa rning s or counseling ; dur ing J uly 2009, I rec eived a bonus, while during September 2009,
I rec eived a merit rate incre ase.” She then stated what she believes to be one of the rea l rea sons she

was discharg ed: “Dur ing September 2 0 09, it was my misfortune to have fired the brother of my depar tment dir ector .” The majority holds that this factual statement would rea sonably g ive rise to

a n a d mi n is tr a ti v e in v e s ti g a ti o n o f r e ta li a

ti o n f o r L o p e z’ s d e c is io n to te r

mi n a te Jo h n s o n ’ s e mp lo y

me n t,
but not her reta liation claim for filing a pay g rieva nce, which it conclude s is not fac tually rela ted to
any of the c laims stated in the char g e.

I respe ctfully disag ree with the majority ’s conclusion that L opez’s reta liation claim
for filing a pay g rieva

nce is not a “fa ctually rela

ted claim[] that could rea sonably be expected to g row

o u t o f the Commi ssion’s investiga tion of the char g e.” Thomas v. Clayton W illiams Energy, In c. , 2 S. W. 3 d 7 3 4 , 7 3 8 ( T e x. A p p
. — H o u s to n [1 4 th D is t. ] 1 9 9 9 , n o p e t. ) ( c it in g F in e v
. G A F Ch e m
. Co r

p
. , 995 F.2d 576, 578 (5th Cir. 1993)). An employ ment-discrimination claim “may be based

. . . upon
any kind of di scrimination li ke o r related t o the charg e’s alleg ations, limit ed only by the s cope of
the EEOC investiga tion that could rea sonably be expected t o g row out of the initial char g es of

2discrimination.” Fellows v. Universal Rests., Inc. , 701 F.2d 447 , 4 5 1 (5t h Cir. 1983) (empha sis

added)

. I n F

el l o w s , t h e Fifth Circuit, emphasizing the liberal construction g iven EEOC char g es,
h el d t h at an employ ee’ s wording of her claims in the char g e that she was paid less and h er applications for various superior positions at a restaur ant wer e denied bec au s e o f her g ender supported a subsequent class action for women subjected to the same discri m i n at i o n o r to
discrimination like or rela ted to the discrimination she descr ibed. Id. I n addition, the court held that

an EEOC investiga tion of class discrimination ag ainst women could rea sonably be expected to
g row out of the e mploy ee’ s alleg ations in her initial EEOC char g e. Id.

I n this c ase, an administrative investiga tion of reta liation for terminating J ohnson’s employ ment nece ssarily would en compass the reta liatory actions that L opez alleg es TSU took

ag ainst her. L opez alleg es that after she terminated Johnson , her supervisors reta liated ag ainst
her by reduc ing her p ay , l ea d i n g h er to file a pay g rieva nce. She alleg es that she was then fired. 1 Consequently , I conclude that L opez exhausted her administrative r emedies f or her pay -g rieva

nce claim by asser ting he r re taliation claim for f iring J ohnson in the char g e. 2

When considering a t ri al co u rt ’s order on a plea to the jurisdiction, in addition to the 1 evidenc e re levant to the jurisdictional question, we c onsider the plaintiff’ s pleading s and construe those pleading s liberally in the plaintiff’s favor and look to the pleader’ s i n t en t

. T exas Dep’ t of Parks & W

ildlif e v. M iranda , 133 S.W .3d 217, 226-28 (Te x . 2004).
I n addition, L opez asser

ts in her petition that TSU reta liated aga inst her beca use of her 2 opposition to J ohnson’s hiring , as well as her opposition to the pre s sure she felt to hire other Afric an-A merica

n applicants even afte r explaining to her supervisors that the population that their prog ram serves i s p re d o m i nantly Hispanic. Whil e she did not include her alleg ation that she was pressure d to hire Afric an-A merica n applicants over Hispanic applicants in her intake questionnaire, it provides rele vant context to the environment in which her hiring and firing of J ohnson occur red.
3But even if I had not conclude d that L opez ’s re taliation claim for filing a pay

g rieva nce is “like or rela ted to” her reta liation claim for firing J ohnson, unlike the majority , I would
consider the intake questionnaire to deter mine whether the pay -g rieva nce cl ai m would be within
the scope of the EEOC investiga tion that could rea sonably be expected to g row o u t of the initial
char g e. I n this case, L opez provided information in her intake questionnaire tha t supplements the
fac tual statement in her char g e about her termination of J ohnson’s employ ment. She asser

ted that
she filed a g rieva

nce on September 17 for reduc tion of pay throug h TSU-San Marc os’s Human
Resource s depar

tment, and afte r that, her supervisors hara ssed h er and discriminated ag ainst her
in a number of way s. She stated that she had rea ched the third step of TSU’s g rieva nce proce ss on the Friday befor e she was fired on Monday , October 19. L opez alleg ed that many of t he ne gative
behavior s started when she was told to hire J ohnson, the brother of one of her supervisors. She also explained that she was no t aw ar e t h at J ohnson was her supervisor’ s brother when she told her supervisors that he was not perf orming the dut i es an d was not qualified for the position and that
the human-r esourc es depa rtment had told her to ter

minate his employ

ment.
I n my view, courts should examine all the information available to the ag ency when analy zing the investiga

tion’s rea sonab l y expected scope, and I would consider this information provided by L opez to the EEOC when deciding whether her pay -g rieva nce claim rea sonably would

come within the scope of the ag ency ’s investiga tion. Consequently , I disag ree with the majority ’s
decision to adopt the more narr ow approa ch of those courts that consider intake questionnaires only
if (1) the fac ts set out in the questionnaire a re a rea sonable c onsequenc e of a claim set forth in the
EEOC char g e, and (2) the employ er had actua l knowledg e of the contents of the questionnaire during
the cour se of the E EOC investiga tion.

4The first prong of the majority ’s approa ch mere ly restate s the question of what claims

a r e p r o p e r ly w it

h in th e la w s u it ’ s s c o p e , a d d in g n o th in g to th e w e ll

- s e tt le d p r in c ip le th a t th e e mp lo y e e ’ s suit “ may be based

. . . upon any kind of discrimination like or rela ted to the char g e’s alleg ations.”
F e ll o ws , 7 0 1 F

. 2 d a

t 4 5 1

. T h is p r o n g o f th e a

p p r o a c h d o e s n o t p r o v id e g u id a n c e o n s p e c if

ic s it u a ti o n s when intake questionnaires should be considere d. I nstead, it reiter ates the exis ting limit on claims not included in the orig inal char g e that may proper ly be included in the e mploy ee’ s lawsuit.
The second prong of the majority ’s approa ch unfairly l i m i t s wh at information a
court should consider when deter mining what alleg ations would re as o n ably be expected to g row from the ag ency ’s investiga tion. Courts should examine all the information presented to the agency
to make this deter

mination. Silva v. Chertoff , 512 F. Supp. 2d 792, 812, 819-20 (W.D. Tex. 2007) (examining all documents provided to EEOC by employ ee but deciding alleg ati o n s i n d ocuments
descr ibed only employ ee’ s asser ted phy sical disability and employ er’ s failure to provide rea sonable

acc ommodation for it and did not present suff icient fa ctual pre dicate f

or alter native ar g ument that employ er discriminated ag ainst employ ee beca use it err oneously reg arde d him as disabled); see also
Clark v

. Kraft Foods, Inc. , 18 F.3d 1278, 1280 (5th Cir. 1994) (examining all statements provided to EEOC by

plaintiff when de termining that plaintiff’s claim that she suffere d disparate trea tment
based on her g ender would rea sonably be expected to be part of EEOC’s investiga tion even though
her char g e alleg ed sexual hara ssment and reta liation for g rieva nces filed). Courts should consider

3

The majority expresses conce rn that considering the intake questionnaire eff ectively trea ts 3 the intake questionnaire as an independe nt char g e ins t ea d o f using it as a mere supplement to claims stated in the char g e or rea sonably rela t ed claims. Those courts that have examined all the information available to the ag ency have used that information to assist them in deter mining whether the re asonable scope of the ag ency ’s investiga tion would have inc luded a c halleng ed cla im, not to
5all the information prese nted to the ag ency beca use “the purpose of a char g e of discrimination is to trig g er the investiga tory and conciliatory proce dures of

the EEOC”; it is not filed as a pr eliminary

to a la w s u it

. S a n c h e z v
. S ta n d a r d B r a n d s , I n c
. , 4 3 1 F

. 2 d 4 5 5 , 4 6 6 ( 5 th Ci r
. 1 9 7 0 )

. Wi th in th e r e le v a n t statutory scheme , a suit is not filed until the EEOC has had an o p p o rt unity to obtain voluntary compliance , and thus the suit is “much more intimately rela ted to the EEOC investiga tion than to the
words of the char g e” that trig g ere d the investiga tion. Id. Whil e the pur pose of se rving employ ers with complaints is to provide them with fair notice of the exis tence and nature of the char g es ag ainst

t h em and to fac ilitate resolution of disputes without court action, that purpose must be b al an ce d
with the competing policy of construing the scope of EEOC complaints liberally beca use most complaints are initiated pro se. See Pache co v. Mineta , 448 F.3d 783, 788-89 (5th Cir. 2006). As
the Fif th Circuit has established:

the conciliation purposes of the act must y ield to its m ore ba sic purposes to prote ct persons ag ainst employ

ment discrimination, indicating t h at protec ting a mere ly theore tical righ t to conciliation (that might not be acc epted) by dismiss ing a subsequent suit, is outweig hed by more fundame ntal purposes of the Act to aff ord the possibili ty of administrative and judicial relief to employ ees who are s ubject to employ ment discrimination.

allow the asse rtion of an unr elated c laim. See Silva v . Chertoff , 512 F. Supp. 2d 792, 812, 819-20 (W.D. Tex. 2007) (examining all documents but deciding alleg ations in documents did not prese nt sufficie nt fac tual predic ate for alterna tive arg ument); see also Clark v. Kraft Foods, Inc. , 18 F.3d 1278, 1280 (5th Cir. 1994) (e x amining a ll statements provided to EEOC by plaintiff and de ciding that those statements “pre sented a sufficie nt predic ate upon which one rea sonably would expect the ag ency to investiga t e a disparate trea tment claim” and raised infere nces supporting plaintiff’s claim in her char g e that she “wa s hara ssed beca use of [her] sex, fema le”)

. T h u s , the majority ’s conce rn that the intake questionnaire will e ffe ctively be trea ted as a c harg e by courts that examine supplemental informa tion is unwarra nted.
6Fellows , 701 F.2d at 4 5 0 n
. 3 (addr essing conce rn that alleg ed lack of notice of class basis for

discrimination char g es depr ived EEOC of oppor tunity to conciliate c lass g rieva nces)

. 4
The second prong of the majority ’s approa ch too heavily favor s the emp l o y er’ s interest over the em p l o y ee ’s, espec ially in case s in which the employ ee is pro se at the time the
intake questionnaire is filled out, the char g e is filed, and the reque st for a rig ht-to-sue notice is made.
Fur thermore , in a case l i k e L opez’s, in which the EEOC perf ormed no investigation , the second

prong —requiring the employ er to have had ac tual knowledg e of the contents of t he questionnaire
d u r in g th e c o u

r s e o f th e E E O C in

v e s ti g a ti o n

— ma k e s n o s e n s e
. I

n L o p e z’ s c a s e , th e E E O C p e r f o r me d no investiga tion and issued the rig ht-to-sue notice only a few wee ks afte r the cha rg e wa s filed and

serve d upon the employ er. The char g e’s ostensible purpose of g iving the EEOC and the employ er 5

The majority relies upon an unpublished Fifth Circuit opinion to distinguish Clark and for 4 the proposition that a core function of the char g e require ment is notice to the employ er. See Harris
v. Honda , 213 F. App’x 258, 262 (5th Cir. 2006) (unpublished and not prec edent under 5th Cir. R. 47.5.4) (pe r cur iam). Althoug h I do not disag ree that notice to the employ er is one pur pose of the char g e, I disag ree with the court’s chara cter ization in Harris that notice to employ ers of claims of discrimination is “the major underly ing purpose of the exhaustion require ments.” Id. I note that the case upon which the court relied for this proposition in fac t stated t hat “a fundame ntal purpose of the char g e is to trig g er an investiga tion by the EEOC” and that the need for courts to construe EEOC char g es “with the utmost liberality

. . . . s t em s fr o m the fra mework of Title VI I and its g oal of encour ag ing voluntary compliance throug h EEOC conciliation.” Terrell v. U.S. Pipe & Foundry Co. , 644 F.2d 1112, 1123 (5th Cir. 1981) (holding that char g es failed to alleg e specific co n d uct implicating international labor unions and thus did not trig g er liability for those unions), vacate d on other grounds , 456 U.S. 955 (1982).
No evidenc e has been prese nted that indicates the TWC’s civil rig hts division conducte d 5
an investiga tion of the claims made by L opez in her EEOC char g e befor e i s s u i n g a rig ht-to-sue notice. See Tex. L abor Code Ann. § 21.0015 (West 2006) (authorizing TWC’s civil rig hts division to exercise Commi ssion on Human Rights ’ p o we rs and duties under chapte r 21 of labor code) ; id. § 301.152 (West 2006) (e s t ab l i shing civil rig hts division as independe nt division in TWC responsible for administering chapte r 21 of labo r co de). I n the aff idavit that L opez submitt ed in s u p p o rt o f h er response to the plea to the jurisdiction, she aver s that she had two unemploy ment hear ings befor e the TWC an d s u b m itted additional documentation to the TWC descr ibing her
7an opportun i t y t o resolve the dispute is irrele vant when no ag ency investiga tion or conciliatory

proce ss occur s befor e the employ ee files suit. Wit hout evidenc e of any ag ency investiga tion or any conciliatory

proce ss, the employ er’ s need for pre-suit notice of the claim is difficult to justi fy . At
this ear ly stag e of the l i t i gat i o n , i t s eems inequitable to deny a day in court to a plainti ff who was
pro se when the intake questionnaire and cha rge we re fi led, espec ially when the ag ency and the employ er eng ag ed in no proce ss to attempt to resolve the plaintiff’s claims without resor t to the

courts. As J ustice Goldberg explained it: “[S] urely Goliath should not be allowed to fell David with
the help of a club fashioned from forms and leg al technica lities. The most elementa ry principles of justice require us to remove this club and compel a battle on the merits of the controve rsy .” Sanchez , 431 F.2d a t 467.

Fur thermore , althoug h the rec ord befor e us is limit ed beca use th e tr ia l c o u

r t d is mi s sed
the case on a pre- discovery motion, L opez alleg es fac ts in her petition and her aff idavit that indicate
that TSU had actua l knowledg e of the incidents underly ing her claim that TSU took reta liatory action

ag ainst her beca

use of her protec ted activity

. See Cooper v. W al-Mart Transp., LLC , 662 F. Supp.
2d 757, 7 7 4 (S.D. Tex. 2009) (re ly ing on handwr itten notes attache d to EEOC char g e to support
hostile work environment claim beca use summary -judg ment evidenc e demonstrated that employ ee had complained to employ er a bout severa l incidents descr ibed i n notes); see also Martin v. T yson

rac e-discr imination and reta liation claims. TSU points out that an investiga tion for unemploy ment b en efits is not the same as an investiga tion of alleg ations of discrimination and reta liation. A differ ent division of the TWC handles unemploy ment claims. There is no evidenc e that the TWC’s civil rig hts division conducte d an y investiga tion into L opez’s alleg ations that TSU eng ag ed in unlawful employ

ment prac tices after the EE OC issued its right-to-sue notice and befor e the TWC issued a rig ht-to-sue notice at her counsel’s reque st. T h e T WC ’s rig ht-to-sue notice is not in the appellate rec ord. L opez a lso aver red in her aff

idavit that she asked the EEOC about amending her char g e afte r she had hired counsel , an d t h e E E OC told her that she could not do so beca use the ag ency had alr eady

issued her r ight- to-sue notice.
8Foods, Inc. , No. H-10-2047, 2011 WL 1103657, at *3-4 (S.D. Tex. Mar. 23, 2011) (re ly ing on fac ts

stated i n employ ee’ s demand letter and EEOC intake questionnaire to char g e employ er with knowledg e of fac ts supporti n g employ ee’ s hostile work environment claim). Whether TSU had

actua l knowledg e that L opez filed a pay g rieva n ce as s er t i n g that her supervisors reduc ed her pay
af t er she terminated J ohnson is a rele vant jurisdictional fac t under the approa ch adopted b y t h e majority

. TSU arg ues on appea l, and the majority ag ree s, that the jurisdictional fac ts in this case are undisputed. TSU has arg ued only that the char g e did not provide it with notice of L opez’s reta liation claims, not that it had no actua l knowledg e of the events leading to L opez’s pay g rieva nce. For this

rea son, even under the majority ’s approa ch, we s h o u l d consider L opez’s intake questionnaire to
deter mine whether her p ay -gr i ev an ce claim is rela ted to claims stated in her char g e and she thus adequately

exhausted her a dminist rative r emedies f or that re taliation claim.
Be cause I disagre e wi th the majority ’s conclusion that L opez failed to exhaust her

a d mi n is tr a ti v e r e me d ie s f

o r h e r c la im th a

t T SU r e ta li a

te d a g a in s t h e r b e c a

u s e s h e f il e d a p a y g r ie v a n c e , and beca use I wo u l d re v erse the trial court’s judgme nt and rema nd this claim to the trial court, I

respe ctfully dissent. Be cause I ag ree with the majority ’s dispositi on of the other issues involved, I

respe ctfully

concur in the rema inder of the majority ’s dec ision to affirm in part a nd to r ever se and

rema nd in part.

__________________________________________ Diane M. H enson, Jus tice
Be fore Chief J ustice Jones, J ustices Henson a nd Goodwin Filed: Apr il 20, 2012

9