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## NO. 12

- 21

- 00015

- CV

IN THE COUR T OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS

GUNTER P. COFFEY , APPELLANT

V.

TEXAS PARKS AND WILDLIFE DEPARTMENT , APPELLEE §

§

§ APPEAL FROM THE

COUNTY COURT AT LAW

SMITH COUNTY, TEXAS

MEMORANDUM OPINION Gunter P. Coffey appeal s the trial court ’ s order granting Appellee Texas Parks and Wildlife Department ’ s plea to the jurisdiction and dismissing his claims with preju dice

. Coffey raises three issues on appeal. We affirm.

B ACKGROUND In 2016, Coffey was employed by the Texas P arks and Wildlife Departm ent (the Department). On December 27, 2016, Coffey submitted an intake questionnaire to the Equal Employment Opportun ity Commission (EEOC) , in which he alleged disability discrimination, a hostile work environment, and retaliation for his reporting discri mination ( the First Charge)

. The
EEOC received Coffey ’ s F irst C harge on May 10, 2017. T he Department terminated Coff ey’s employment on July 7. On July 19, the EEOC closed Coffey ’ s F irst C harge and mailed him a “right

- to

- sue” let ter. On August 10, 2017, Coffey submitted an intake questionnaire to the EEOC , which alleged additional claims of age discrimination and ret aliation ( the Second Charge). The EEOC received Coffey ’ s S econ d C harge that same day. Coffey a lso filed his Sec ond C harge with the
Texas Workforce Commission (TWC) , which received the charge on August 22.2 On October 17 , 2017, Coffey filed a federal empl oyment lawsuit, in which he made

c laims for disability and age discrimination, hostile work environment, and reta liation for his reporting discrimination and filing a charge with the EEOC. On November 14, the Department
moved to dismiss Coffey ’ s suit, and Coffey filed a voluntary motion to dismiss on December 1. 1
T he federal district court granted Coffey ’ s motion t o dismiss on December 4. On December 7, 2017, Coffey submitted his T hird C harge to the EEOC . Coffey’s Third Charge was a word

- for

- word duplic at e of his S econd C harge and, for this reason, t he EEOC
closed the matter of the T hird C harge on March 27, 2018. On November 26, 2019, Coffey filed the instant suit, in which he alleged causes of action against the Department for disability discriminatio n, age discrimination, hostile work environment, and retaliation for reporting discrimination and filing the Firs t Ch arge. 2 On April 9, 2020 , the Department filed a plea to the jurisdiction, in which it alleged that the trial court lacked jurisdiction bec ause, among other reasons, Co ffey failed to file suit within two years of filing his EEOC discrimination charges and the Texas Commission on Human Rights Act’s ( TCHRA ) election of remedies provision prevents Coffey from filing suit under the TCHRA
after he brought a federal suit based on the same allegations of discrimination and retaliation

. Coffey filed a response , and , ultimately, t he trial court granted the Department ’ s plea to the jurisdiction . T his appeal followed.

L IMITATIONS In his second issue , Coffey argues that the trial court erred in granting the Department ’ s plea to the jurisdiction because he fil ed the S econd C harge timely following his termination and, thereafter, timely filed the instant suit

. Standard of Review and Governing Law
In Tex as, sovereign immunity d eprives a trial court of subject matter jurisdiction for
lawsuits in which the state o r certain governmental units have been sued unless the state consents
to suit. Tex. Parks & Wildlife Dep ’ t v. Miranda , 133 S.W.3d 217, 224 (Tex. 2004). The TCHRA provide s a limited waiver of sovereign immunity when a governmental unit committed

1 That same day, Coffey ’ s co uns el sent a duplicate of the Second Charge along with a letter to the EEOC referencing the Second Charge and th e Au gust 10 intake questionnaire.

2 On December 6, 2019, the EEOC closed Coffey ’ s second charge and mailed him a “right

- to sue” letter.3 employment discrimination based on race, color, disability, religion, sex, national origin, or age, or when a governmental entity retaliated or discriminate d against a person who e ngaged in certain protected activities. See T EX

. L AB

. C ODE A NN

. §§ 21.002(8)(D), 21 .0 51, 21 .254 (West
2021 ); Mission Consol. Indep. Sch. Dist. v. Garcia , 253 S.W.3d 653, 660 (Tex. 2008); Tex

. Dep ’ t of Criminal Justice v. Cooke , 149 S.W.3d 700, 704 (Tex. App.

– Austin 2004, no pet.). Sovereign immunity from suit defeats a trial court ’ s subje ct matter jurisdiction and is , therefore , properly asserted in a plea to the jurisdiction. Miranda , 133 S.W.3d at 225

– 26.
Whether a court has sub ject matter jurisdiction and whether a plaintiff pleaded facts that affirmatively demonstrate subject matter j urisdiction are questions of law that we review de

novo. Id. at 226. In deciding a plea to the jurisdiction, we are not to weigh the merits of t he pl aintiff ’ s claims but are to consider the plaintiff ’ s pleadings, construed in the plaintiff ’ s favor,
and e vidence pertinent to the jurisdictional inquiry. Id. at 227

– 28; Cty. of Cameron v.
Brown , 80 S.W.3d 549, 555 (Tex. 2002). In this case, the quest ion o f w hether the Department ’ s sovereign immunity from suit has
been waived turns on whether Coffey filed the instant suit within two years of the date of his charge with the EEOC

. See T EX

. L AB

. C ODE A NN

. § 21.256 (West 2021 ) ; see also Goss v. City of Ho uston , 391 S.W.3d 168, 176 (Tex. App.

– Houston [1st Dist.] 2012 , no pet.) (when claims barred by limitations pe riod set forth in Section 21.256, trial court lacks subject matter jurisdiction)

. The Department asserts that Coffey’s pleadings and the undisp ut ed jurisdictional
evidence establish that he failed to do so and that such failure jurisdictionally bars his c laims. On appeal, Coffey does not challenge the Department ’ s jurisdictional evidence regarding the
relevant dates but instead , argues that limi ta tions runs from a date other than the date s the relevant charge s of discrimination were filed . Therefore, bec ause the jurisdictional facts are undisputed, we make the jurisdictional determination as a matter of law based on those undisputed facts. See Lu eck v. State , 325 S.W.3d 752, 756

– 57 (Tex. App.

–Austin 2010, pet. denied) (citing Miranda , 133 S.W.3d at 227

– 2 8). A civil action for employment discrimination may not be brought later than the second anniversary of the date the complaint relating to th e action is filed. See T EX

. L AB

. C ODE A NN

. § 21.256. For the purpose of satisfying the filing requirements of Texas Labor Code, Section4 21.201, 3 timeliness of the complaint shall be determined by the date on which the complaint is received by the EEOC

. 4 S ee Tex. Tech Univ

. v. Finley , 223 S.W.3d 510, 51 4

– 15 (Tex. App.

– Amarillo 2006, no pet.). 5
Discussion
In the i nstant case, Coffey ’s First Ch arge raised claims of disability discrimination, hostile work environment, and retaliation for his reporting discrim ination. The First Charge was received by the EEOC on May 10, 2017. Furthermore, following the termination o f his employment with the Depa rtment , Coffey submitted his Second Charge, in which he alleged claims of age discrimination and retaliation

. T he E EOC received the Second Charge on August
10 , and the TWC received its copy on August 22

. Coffey contends tha t the two

- year statute of limitations begins to run from the date that the charge is perfected and , with regard to his Second Charge, the TWC was required to serve him with a copy of the perfected complaint not later than the tenth day after the date the c harge

wa s filed. See T EX

. L AB

. C ODE A NN

. § 21.201(d). A s set forth previously, the limitation period begins to run on the date the complaint is filed, which is determined by the date the complaint is
received

. See id

. § 21.254; Finley , 223 S.W.3d at 514

– 15. Yet , even if Coffey was not served timely with a copy of the perfected complaint , he nonetheless acknowledge d during oral argument of this c ase that he had actual knowledge that the EEOC received the Second Charge by virtue of the March 27, 2018 lett er from t he EEOC notifying him that it was dismissing his Third Charge because it was duplicative of his Second Charge, the filing of which the le tter acknowledged. And while the TWC was required to communicate with Coffey more expeditiously so as to ackn owle dge the f iling of his complaint and the progress of perfection of
the c omplaint, 6 this fact does not change the outcome of this matter. Coffe y has not cited, nor is

3 Sec tio n 21.201 sets forth , among other things, the requirements for filing a complaint by a person claiming to be ag grie ved by an unlawful employment practice. See T EX

. L AB

. C ODE A NN

. § 21.201(a) (West 2021 ).

4 Under the 1998 Worksharing Agreement, an initia l c omplaint filed with the EEOC also will be considered filed with the Texas Workforce Commission

- Civil Rights D ivis ion. See Tex. Tech Univ. v. Finley , 223 S.W.3d 510, 51 3 n.4 (Te x. App.

– Amarillo 2006, no pet.). Nonetheless, the record reflects that Coff ey filed a copy of this charge with the TWC, which was received on August 22, 2017.

5 But see Tex. Dep’t of Pu b. S afety v. Alexander , 300 S.W.3d 62, 73 (Tex. App.

– Austin 2009, pe t. denied) ( recognizing that timely filed intake questionnaires sometimes ma y b e used to satisfy timeliness requirement under TCHRA).

6 See T EX

. L AB

. C ODE A NN

. § 21. 201(g).5 this court aware of , any authority which holds that a party , who knows that his charge of
discrimi nation has been filed and received, bears no responsibility to exercise some manner of
additional diligence to d etermine the precise d ate on which the charge he filed was received in
order to ensure that he ultimately may file suit in state cou rt w ithin the two

- year limitations period. It is apparent that the underlying circumstances surrounding the filing and receipt of Coffey’s S econd C harge are a departure from th e routine variety envisioned by the Legislature in
Section 21.201

. Nevertheless , th e record before us is clear on at least three undisputed points : (1) Coffey’s First Charge was received by the EEOC on May 10, 2017 ; (2) Coffe y ’s Second Charge was received by the EEOC on August 10 and received by the TWC on August 22 ; and (3) Coffey f iled the instant suit on November 26, 2019. Therefore, because Coffey filed this suit more than two years after the date his First and Second Cha rge s w ere received by either the
EEOC or TWC, we conclude that it is barred by limitations. See T EX

. L AB

. C OD E § 21.254; Finley , 223 S.W.3d at 514

– 15. Therefore, we hold that the trial court did not err in granting the Department’s plea to the jurisdicti on. See Goss , 391 S.W.3d at 176. Coffey’s se cond issue is
overruled. 7

D ISPOSITION Having overruled Coffey’ s se cond issue, we affirm the trial court’s order granting the Department’s plea to the jurisdiction and dismissing Coffey ’ s claims with prejud ice

.

J AMES T. W ORTHEN Chief Justice
Opinion delivered October 6 , 2021. Panel co nsisted of Worthen, C.J., Hoyl e, J ., and Neeley, J.

7 Because of our resolution of Coffey’s second issue , we do not consider Coffey’s first and third issue s , in which he argues that the trial court erred in gr ant ing the Department’s plea to the jurisdiction because (1) Coffey’s prior suit in federal court di d not consti tute an election of remed y and (2) he timely exhausted his complaint despite the Department’s delay in responding to the charge. See T EX

. R. A P P

. P. 47.1.6 

## COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

OCTOBER 6 , 2021

NO. 12

- 21

- 00015

- CV

GUNTER P. COFFEY , Appellan t V. TEXAS PARKS AND WILDLIFE DEPARTMENT , Appellee

Appeal from the County Court at Law
of S mith County, Texas (Tr.Ct.No. 71315 )

THIS CAUSE came to be heard on the oral arguments, appellate record and
brief s filed herein, and the same b ein g considered, it is the opinion of this court that there was no error in the judgment.
It is therefore ORDER ED, ADJUDGED and DECREED that the judgment of
the court below be in all things affirmed , all costs of this appeal a re assessed against the Appel lan t, GUNTER P. COFFEY , and that this decision be certified to the court below for
observance.
James T. Worthen , Chi ef Justice

. Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.