United States Court of Appeals

for the Fifth Circuit ____________

No. 24-20046

____________

Christy Thomas Bunker, 

Plaintiff—Appellant,

versus

Dow Chemical Company, 

Defendant—Appellee.

______________________________

Appeal from the United States District Court 

for the Southern District of Texas

USDC No. 4:23-CV-4372

______________________________

Before Clement, Graves, and Ramirez, Circuit Judges.

Edith Brown Clement, Circuit Judge:

Christy Bunker sued Dow Chemical Company in Texas state court for 

age discrimination and retaliation. Dow removed the case and filed a motion 

to dismiss, which the district court granted after finding that Bunker failed to 

exhaust her administrative remedies before filing suit. Because the district 

court correctly recognized that Bunker failed to properly request that the 

Equal Employment Opportunity Commission (EEOC) file her charge with 

the appropriate state agency, we AFFIRM. 

United States Court of Appeals

Fifth Circuit

FILED

August 7, 2024

Lyle W. Cayce

Clerk

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No. 24-20046

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I.

In June 2018, Dow hired Bunker as a senior health service manager. 

Bunker alleges that in February 2021, Dow treated younger employees more 

favorably than herself by giving them more opportunities for promotions and 

excusing conduct for which Bunker faced disciplinary action. On December 

10, 2021, Bunker filed Form 5, entitled “Charge of Discrimination,” with the 

EEOC. This charge alleged that “[Dow] discriminated against [Bunker] 

based on [her] age and retaliated against [her] in violation of the Age 

Discrimination in Employment Act of 1967 (ADEA), as amended.” Bunker 

left blank the line on the form where she could have written the name of the 

“State or local Agency, if any” that should also receive the charge (in 

addition to the EEOC). And Bunker made no mark near the text on the 

bottom of the form stating, “I want this charge filed with both the EEOC and 

the State or local Agency, if any.” After filing her EEOC charge, Bunker 

continued to work for Dow until July 25, 2022, when she was discharged.

In October 2023, Bunker filed suit against Dow in Texas state court, 

alleging age discrimination and retaliation in violation of the Texas 

Commission on Human Rights Act (TCHRA).1 Dow removed the case under 

diversity jurisdiction and moved to dismiss Bunker’s claims under Federal 

Rule of Civil Procedure 12(b)(6). Dow argued that Bunker failed to exhaust 

her administrative remedies before filing suit and that the time to cure this 

defect had passed.

The district court granted Dow’s motion, finding that “Bunker filed 

a claim with the EEOC, but not with the corresponding Texas agency, the 

_____________________

1 The Texas Commission on Human Rights (TCHR) has been replaced with the 

Texas Workforce Commission (TWC), TEX. LAB. CODE § 21.0015, but courts still 

regularly refer to Chapter 21 of the Texas Labor Code as the TCHRA. See,e.g., Prairie View 

A & M Univ. v. Chatha, 381 S.W.3d 500, 502 n.1 (Tex. 2012). We will follow suit. 

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[Texas Workforce Commission (TWC)].” Thus, the district court held that 

Bunker had failed to exhaust her administrative remedies as required under 

the TCHRA. The district court rejected Bunker’s argument that because the 

EEOC and the TWC entered into an agreement designating each other as 

agents for the purpose of receiving charges, a charge filed with the EEOC is 

considered filed with the TWC. Bunker now appeals. 

II.

We review the grant of a Rule 12(b)(6) motion de novo. Lampton v. 

Diaz, 639 F.3d 223, 225 (5th Cir. 2011). “We ask whether, construing all 

inferences in favor of the plaintiff, there are sufficient factual allegations ‘to 

raise a right to relief above the speculative level.’” Martinez v. Nueces Cnty., 

71 F.4th 385, 388 (5th Cir. 2023) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 

544, 555 (2007)). This court must determine whether the plaintiff has 

pleaded “factual content that allows the court to draw the reasonable 

inference that the defendant is liable for the misconduct alleged” such that 

he has “‘state[d] a claim to relief that is plausible on its face.’” Ashcroft v. 

Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 

544, 570 (2007)).

For this diversity-jurisdiction action arising out of alleged

employment violations in Texas, the substantive law of Texas applies. See 

Hodges v. Mack Trucks Inc., 474 F.3d 188, 193 (5th Cir. 2006) (citing Erie R.R. 

Co. v. Tompkins, 304 U.S. 64 (1938)). “In applying Texas law, we look first 

to the decisions of the Texas Supreme Court.” Hux v. S. Methodist Univ., 819 

F.3d 776, 780 (5th Cir. 2016). If the Texas Supreme Court has not ruled on 

the issue, “we make an Erie guess, predicting what it would do if faced with 

the facts before us.” Id. (footnote omitted). “Typically, we treat state 

intermediate courts’ decisions as the strongest indicator of what a state 

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supreme court would do, absent a compelling reason to believe that the state 

supreme court would reject the lower courts’ reasoning.” Id. at 780–81. 

As noted above, the substantive law at issue is the TCHRA. Prior to 

filing a civil action under the TCHRA, employees must exhaust their 

administrative remedies. Vielma v. Eureka Co., 218 F.3d 458, 462 (5th Cir. 

2000); see also TEX. LAB. CODE §§ 21.201–.202. 

To exhaust administrative remedies under the TCHRA, a plaintiff 

must: 

(1) file a complaint with the TWC within 180 days of the 

alleged discriminatory act; (2) allow the TWC 180 days to 

dismiss or resolve the complaint; and (3) file suit in district 

court within 60 days of receiving a right-to-sue letter from the 

TWC and no later than two years after the complaint was filed.

Lopez v. Tex. State Univ., 368 S.W.3d 695, 701 (Tex. App.—Austin 2012, no 

pet.). “This affords the commission an opportunity to investigate the 

allegation, informally eliminate any discrimination, and minimize costly 

litigation.” El Paso Cnty. v. Kelley, 390 S.W.3d 426, 429 (Tex. App.—El Paso 

2012, pet. denied). 

In 1989, the TCHR (the predecessor to the TWC) and the EEOC 

entered a Worksharing Agreement, “which was intended to minimize 

unnecessary duplication of effort and make the operations of the two agencies 

more efficient.” Vielma, 218 F.3d at 462. Under a subsequent Worksharing 

Agreement, the TCHR “designate[d] and establishe[d] the EEOC as a 

limited agent of the [TCHR] for the purpose of receiving charges on behalf 

of the [TCHR] and EEOC agree[d] to receive such charges.” Griffin v. City 

of Dallas, 26 F.3d 610, 612 (5th Cir. 1994). Because of this agreement, and 

only under certain circumstances, “when a complainant files her initial 

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charge with the EEOC, her charge will also be considered filed with the

TCHR,” now the TWC. Vielma, 218 F.3d at 462–63. 

III.

Bunker filed her EEOC charge on December 10, 2021, within 180 days 

of Dow’s alleged discriminatory acts. And Bunker filed suit on October 9, 

2023, within two years from the date of filing her EEOC charge. Although 

Bunker submitted her charge to the EEOC alone, and not the TWC, she 

argues that a charge filed with the EEOC is necessarily considered filed with 

the TWC because of the Worksharing Agreement between them. This 

argument is incorrect. 

Texas courts considering this issue have held that a charge filed with 

the EEOC must at least indicate that it is to be filed with the TWC to satisfy 

the filing requirements of the TCHRA. See, e.g., Burgmann Seals Am., Inc. v. 

Cadenhead, 135 S.W.3d 854, 857 (Tex. App.—Houston [1st Dist.] 2004, pet. 

denied) (“We hold that providing the name of the TCHR and checking the 

box for simultaneous filing is the equivalent of filing with the TCHR.”); Port 

Arthur Indep. Sch. Dist. v. Edwards, No. 09–11–00628–CV, 2012 WL 489052, 

at *6 (Tex. App.—Beaumont Feb. 16, 2012, no pet.) (mem. op.) (“Because 

the [T]CHR[] was designed to work alongside the EEOC, an aggrieved 

employee may satisfy the burden to ‘file a complaint’ with the TCHR by 

filing a charge with the EEOC and indicating on the form the desire to have 

it dually-filed with the State agency.”); Williams v. Vought, 68 S.W.3d 102, 

108 (Tex. App.—Dallas 2001, no pet.) (“A complaint filed with the EEOC, 

and forwarded by the EEOC to the TCHR, satisfies the requirements of the 

TCHRA.”); Westbrook v. Water Valley Indep. Sch. Dist., No. 03–04–00449, 

2006 WL 1194527, at *3 (Tex. App.—Austin 2006, pet. denied) (“[A]n 

aggrieved employee may satisfy her burden to ‘file a complaint’ with the 

TCHR by filing a charge with the EEOC and checking a box on the EEOC 

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charge form indicating her desire to have it dually-filed with the state 

agency.”). Federal courts considering the issue have reached the same 

conclusion. See, e.g., Minor v. Diverse Facility Sols., No. SA-20-CV-01033, 

2021 WL 4350593, at *2 (W.D. Tex. Sept. 24, 2021) (“When a claimant files 

their initial charge with the EEOC, if the charge indicates it is a dual-agency 

filing, the charge will also be considered filed with the TWC.”); Acker v. 

Deboer, Inc., No. Civ.A 3:04-CV-1327-R, 2006 WL 1489265, at *3 (N.D. Tex. 

May 24, 2006) (“In his EEOC complaint, Acker indicated that he wished for 

the TCHR to also review his claim. He therefore filed a timely charge with 

the TCHR within 180 days of his termination.”) (citation omitted).

Indeed, as noted above, the purpose of the Worksharing Agreement 

between the EEOC and the TWC is to allow the TWC to investigate 

allegations, eliminate discrimination, and reduce litigation. See El Paso Cnty. 

v. Kelley, 390 S.W.3d 426, 429 (Tex. App.—El Paso 2012, pet. denied). But 

if the TWC has no record of the relevant complaints filed with the EEOC, 

then the state agency cannot discharge the functions contemplated by the 

Worksharing Agreement. And without the EEOC receiving an indication 

that the TWC is to receive a complaint, the EEOC is unlikely to efficiently 

and consistently share the relevant complaints with the TWC. The 

Worksharing Agreement does not require the EEOC to divine which 

complaints should go to the TWC with no input from the complainants. 

We are thus persuaded that if the Texas Supreme Court faced the 

question of whether filing an EEOC charge with no indication that the TWC 

should receive the charge satisfies the TCHRA’s filing requirements, its 

answer would be “no.” Some indication in the EEOC charge that the TWC

is to receive the charge is necessary.2 This indication could appear, as clearly 

_____________________

2 Some courts have characterized the necessary condition to meeting the TCHRA 

filing requirements as “actually fil[ing] with the Commission,” Howe v. Yellowbook, USA, 

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intended, on the line designated for the employee to write the “State or local 

Agency, if any,” or in the narrative section of the form, or even on the bottom 

near the text “I want this charge filed with both the EEOC and the State or 

local Agency, if any.” But the filer must give some indication or request to 

the EEOC to transmit the form to the TWC. 

Despite the caselaw on point, Bunker contends that filing with the 

EEOC automatically satisfies the TCHRA’s filing requirement. In support 

of her position, Bunker cites this court’s decision in Vielma v. Eureka Co., 218 

F.3d 458. But Vielma did not confront the issue of whether filing with the 

EEOC necessarily qualifies as filing with the TWC. As other courts have 

recognized, in Vielma “there was evidence that the Commission had received 

[the] plaintiff’s charge.” Howe, 840 F. Supp. 2d at 978. Indeed, this court 

explained that Vielma “requested and . . . received the TCHR version of a 

‘right to sue’ letter.” Vielma, 218 F.3d at 461. Further, we limited our holding 

in Vielma to the facts before us: “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.” Id. at 462–63 (emphasis added). The phrase “[i]n a case 

like this one” limited the court’s holding to cases in which there was 

evidence that the state agency received the plaintiff’s charge.

Bunker also cherry-picks a line from our decision in Griffin v. City of 

Dallas. Although the case states that “upon the EEOC’s receipt of the 

complaint, the TCHR, for all legal and practical purposes, received the 

complaint,” the previous sentence makes clear that the EEOC complaint at 

issue was also addressed to the TCHR, unlike Bunker’s. Griffin, 26 F.3d at 

_____________________

840 F. Supp. 2d 970, 978 (N.D. Tex. 2011), while others have held that a request or 

indication to file the EEOC charge with the TWC is enough, Burgmann Seals Am., Inc., 135 

S.W.3d at 857. We need not resolve this question because Bunker failed to plead facts 

establishing that she met either standard. 

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612–13. The sentence states, “Under the plain terms of this agreement, when 

Mr. Griffin filed his discrimination complaint with the EEOC—a complaint 

which was also addressed to the TCHR—the EEOC accepted that complaint, 

not only for its own purposes, but also for the purposes of the TCHR.” Id. at 

612 (emphasis added). Like Vielma, Griffin did not reach the question before 

this court.

Lastly, Bunker cites Marquis v. Omniguide, Inc., but that decision 

acknowledges that an EEOC charge must be “forwarded by the EEOC to the 

TWC” to satisfy the filing requirements of the TCHRA. 714 F. Supp. 2d 640, 

644 (N.D. Tex. 2010). 

In short, the cases Bunker relies on in support of her position are not 

availing. And as explained above, Texas state and federal courts have 

consistently held that a charge filed with the EEOC must at least indicate that 

it is to be filed with the TWC in order to meet the filing requirements of the 

TCHRA. Bunker fails to present a compelling reason why the Texas 

Supreme Court would not adopt this position. 

Bunker’s EEOC charge gave no indication that it should be sent to the 

TWC. For this reason, the district court properly held that she “failed to 

timely file her complaint with the TWC and cannot cure the defect two years 

after the fact.” Bunker failed to exhaust her administrative remedies, and her 

claims under the TCHRA were rightfully dismissed with prejudice.3

_____________________

3 Besides the argument that filing with the EEOC is automatically considered filing 

with the TWC, Bunker raises new arguments on appeal regarding alleged ambiguity in the 

TCHRA. “A party forfeits an argument by failing to raise it in the first instance in the 

district court—thus raising it for the first time on appeal—or by failing to adequately brief 

the argument on appeal.” Rollins v. Home Depot USA, 8 F.4th 393, 397 (5th Cir. 2021). 

“Exceptions to this general rule include jurisdictional challenges and issues ‘purely legal’ 

in nature that would ‘result in a miscarriage of justice’ if we did not address them.” 

Arredondo v. Elwood Staffing Servs., Inc., 81 F.4th 419, 428 (5th Cir. 2023) (quoting Rollins, 

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IV.

For the foregoing reasons, we AFFIRM.

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8 F.4th at 398). “[A]ppellate courts have considerable discretion in deciding whether to 

consider an issue that was not raised below.” Rollins, 8 F.4th at 398. Our decision not to 

address Bunker’s newly raised arguments does not result in a miscarriage of justice. Bunker 

had every opportunity to present these arguments below.

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