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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

CHARLES REX ACKER, §

§

Plaintiff, §

§

vs. § Civil Action 3:04-cv-1327-R

§

DEBOER, INC. a/k/a §

DEBOER TRUCK LINES, §

§

Defendant. §

MEMORANDUM OPINION AND ORDER

Plaintiff Charles Rex Acker, has sued his former employer, defendant deBoer, Inc. a/k/a

deBoer Truck Lines (“deBoer”), for violating the Age Discrimination in Employment Act (the

“ADEA”), 29 U.S.C. §§621 et seq. (West 2005) and its state-law counterpart, the Texas Commission

on Human Rights Act (the “TCHRA”), Tex. Labor Code §§21.001 et seq. (Vernon 1996 & Supp.

2005). On the eve of trial, deBoer has moved for leave to file a Rule 12(b)(6) Partial Motion to

Dismiss Plaintiff’s TCHRA claim for failure to exhaust administrative remedies. (Dkt. No. 53).

Plaintiff has expeditiously responded to defendant’s alleged grounds for dismissal. Therefore,

finding no prejudice caused by this last-minute filing, the Court hereby GRANTS deBoer’s Motion

for Leave to File its Partial Motion to Dismiss, but DENIES the Partial Motion to Dismiss for the

reasons explained below. 

I. BACKGROUND

Acker was discharged from his position at deBoer on December 5, 2002. On February 13,

2003, he filed a charge of age discrimination with the U.S. Equal Employment Opportunity

Commission (“EEOC”). Acker’s complaint was addressed to both the EEOC and the Texas

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS 

DALLAS DIVISION

FILED

May 24, 2006

CLERK, U.S. DISTRICT COURT

 

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Commission on Human Rights (“TCHR”). (Def.’s App. 12-13). The complaint indicated that Acker

wished for the Texas Commission on Human Rights to review his claim, in addition to the EEOC.

(Id.). The EEOC issued Acker a right to sue notice on March 17, 2004; Acker timely filed this

lawsuit within ninety days of that notice, on June 16, 2004. 

Defendant has now moved to dismiss Acker’s TCHRA claims for failure to exhaust

administrative remedies because Acker neither received nor requested a right-to-sue notice from the

Texas Commission on Human Rights. In response, Acker maintains that he properly exhausted his

TCHRA claim because he filed a charge of discrimination with the EEOC, directed for his charge

to be forwarded to the TCHR, and complied with all other statutory requirements for filing suit

under the TCHRA.

II. ANALYSIS

A. Legal Standard

A motion to dismiss under Rule 12(b)(6) is disfavored in the law and rarely granted. See

Delhomme v. Caremark Rx Inc., 232 F.R.D. 573 (N.D.Tex. 2005) (citing, inter alia, Thompson v.

Goetzmann 337 F.3d 489, 495 (5th Cir. 2003)). When ruling on a Rule 12(b)(6) motion, the court

must accept all well-pleaded facts as true and view them in the light most favorable to the

non-movant. See Calhoun v. Hargrove, 312 F.3d 730, 733 (5th Cir. 2002); Campbell v. City of San

Antonio, 43 F.3d 973, 975 (5th Cir. 1995). The complaint will only be dismissed if it appears beyond

doubt that the claimant can prove no set of facts in support of its claim that would entitle him or her

to relief. See Campbell, 43 F.3d at 975; Cinel v. Connick, 15 F.3d 1338, 1341 (5th Cir. 1994). The

relevant question is not whether the claimant will prevail but whether it is entitled to offer evidence

to support its claims. See Cross Timbers Concerned Citizens v. Saginaw, 991 F.Supp. 563, 571

 

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(N.D.Tex. 1997). In ruling on a Rule 12(b)(6), “courts must limit their inquiry to the facts stated

in the complaint and the documents either attached to or incorporated in the complaint.” Lovelace

v. Software Spectrum Inc., 78 F.3d 1015, 1017-18 (5th Cir. 1996). The court may, however, take

judicial notice of documents in the public record and may consider them in ruling on the motion.

R2 Investments LDC v. Phillips, 401 F.3d 638, 640 n.2 (5th Cir. 2005) (citing Lovelace, 78 F.3d at

1017-18). 

B. Exhaustion of Administrative Remedies under the TCHRA

Like the ADEA, the Texas Commission on Human Rights Act prohibits employment

discrimination based on age. See Tex. Lab. Code §§ 21.051 & 21.055 (West 1996 & Supp.2005).

The TCHRA established the Texas Commission on Human Rights (“TCHR”) as the state “deferral

agency” to investigate and resolve employment discrimination claims. See Schroeder v. Texas Iron

Works, Inc., 813 S.W.2d 483, 485 (Tex. 1991). In general, an aggrieved employee must exhaust his

or her administrative remedies with the TCHR before filing suit under the TCHRA. Id. at 486.

Texas courts are jurisdictionally barred from entertaining an unexhausted TCHRA claim. Jones v.

Grinnell Corp., 235 F.3d 972, 974-75 (5th Cir.2001). 

There are several prerequisites to exhausting administrative remedies under the TCHRA.

Generally, one must (1) file a sworn written complaint with the TCHR within 180 days of the

alleged discriminatory act; (2) allow the TCHR 180 days to dismiss or resolve the complaint before

filing suit; and (3) file suit no later than two years after filing the administrative complaint. City of

Houston v. Fletcher, 63 S.W.3d 920, 923 (Tex.App.–Houston [14th Dist.] 2002, no pet.) (citing Tex.

Lab.Code §§ 21.201-.202, .208, .256). 

In cases like this one, where a claimant intends to sue an employer under the TCHRA and

 

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a federal anti-discrimination statute, the aggrieved employee may satisfy the TCHRA’s filing

requirement by filing an charge of discrimination with the EEOC and indicating that he or she

intends for the complaint to be dually-filed with the TCHR. Vielma v. Eureka Co., 218 F.3d 458,

462-63 (5th Cir. 2000); Rice v. Russell-Stanley, L.P., 131 S.W.3d 510, 513 (Tex.App.–Waco 2004,

pet. denied). This is because the EEOC and the TCHRA are parties to a worksharing agreement

whereby each agency has designated the other to be an agent for the purpose of receiving

complaints. See Vielma, 218 F.3d at 462. Consequently, an initial charge of discrimination filed

with the EEOC will also be considered to be filed with the TCHR if so indicated. Rice, 131 S.W.3d

at 513.

Once the TCHR receives a complaint of discrimination, the agency is required by statute to

investigate the complaint and “determine if there is reasonable cause to believe that the respondent

engaged in an unlawful employment practice.” Tex. Lab. Code §21.204(a). If the TCHR determines

that there is reasonable cause to believe that an unlawful employment practice occurred, the Labor

Code requires the agency to issue a right-to-sue letter informing the employee that administrative

remedies have been exhausted and that he or she may file suit under the TCHRA. Tex. Lab. Code

§21.206. 

If the TCHR dismisses or fails to resolve the complaint within 180 days of filing, the agency

is required to inform the complainant in writing by certified mail. Tex. Lab. Code §21.208. The

complainant may then request a right-to-sue notice and must file suit within 60 days of receiving

such notice. See Tex. Lab. Code §§21.252, 21.254. 

If the TCHR fails to resolve the complaint within 180 days, the complainant may

nevertheless file suit despite the agency’s inaction. The TCHRA expressly states that the TCHR’s

 

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“[f]ailure to issue the notice of a complainant’s right to file a civil action does not affect the

complainant's right...to bring a civil action...” Tex. Labor Code §21.252(d) (emphasis added). For

that reason, several Texas courts have held that once the required 180 days have elapsed, the

complainant does not have to show that the TCHR actually investigated his or her complaint in order

to exhaust administrative remedies, even though the TCHR is explicitly required by statute to

investigate a complaint of discrimination. See Westbrook v. Water Valley Independent School Dist.,

2006 WL 1194527 *3 (Tex.App.– Austin 2006, no pet. hist.) (citing, inter alia, Burgmann Seals

Am., Inc., v. Cadenhead, 135 S.W.3d 854, 857-58 (Tex.App.– Houston [1st Dist.] 2004, pet.

denied)). Those courts have held that where 180 days have elapsed without any action on the part

of the TCHR, the claimant need not receive a right-to-sue letter or even request such a letter in order

to file suit under the TCHRA as long as the other statutory requirements for exhaustion have been

met. See Westbrook, 2006 WL 1194527 *3; Rice, 131 S.W.3d at 513; Fletcher, 63 S.W.3d at

922-23; Wiltshire v. Humpal Physical Therapy, P.C., 2005 WL 2091092 *3-4 (Tex.App.– Corpus

Christi 2005, no pet.) (unpublished); Castillo v. Homan, 2005 WL 2000675 *3 (S.D.Tex. 2005). 

Defendant argues that Acker failed to exhaust his administrative remedies because he did

not receive a right-to-sue letter on his TCHRA claim or even request such a letter after the 180-day

investigatory period had lapsed. After reviewing Acker’s complaint and the documents that he filed

with the EEOC, the Court finds that Acker has exhausted his administrative remedies on his TCHRA

claim. Acker was terminated in December 2002 and filed an EEOC complaint three months later

in March 2002. In his EEOC complaint, Acker indicated that he wished for the TCHR to also

review his claim. (Def.’s App. 12-13). He therefore filed a timely charge with the TCHR within

180 days of his termination. By filing suit on June 16, 2004 – less than two years but more than 180

 

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days after filing his EEOC complaint – Acker complied with the remaining requirements for

exhaustion. See Fletcher, 63 S.W.3d at 923. 

Although Defendant correctly notes that Acker was entitled to request a right-to-sue letter

at the time he filed suit, as indicated above, he was not required to do so in order to exhaust his

TCHRA claim. As the court in Fletcher recognized, “[i]t is the [claimant’s] entitlement to the

right-to-sue letter that exhausts the complainant's administrative remedies,” not his demand for such

a letter. Fletcher, 63 S.W.3d at 923 (emphasis added); see also, Castillo, 2005 WL 2000675 *3. 

Accordingly, the Court finds that Acker’s TCHRA claim is properly before the court and

Defendant’s motion to dismiss is denied. 

III. CONCLUSION

For the foregoing reasons, the Court enters the following rulings: 

1. deBoer’s Motion for Leave to File a Partial Motion to Dismiss is

GRANTED; and

2. deBoer’s Rule 12(b)(6) Partial Motion to Dismiss Acker’s TCHRA claim

for failure to exhaust administrative remedies is DENIED.

IT IS SO ORDERED.

SIGNED THIS 24 DAY OF May, 2006.

 

HON. JERRY BUCHMEYER

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

 

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