Charles E. Wallace v. Texas Department of Health; Eduardo Sanchez, M.D.; Sharilyn Stanley, M.D.; John Doe and Jane Doe, No. 03-06-00703-CV (Tex.App.- Austin, Aug. 28, 2007)(Opinion by Justice Patterson)(discrimination claim, premature filing) (Before Justices Patterson, Pemberton and Waldrop)
Appeal from County Court at Law No. 1 of Travis County
The courts are not divested by an agency of the subject matter jurisdiction they would otherwise possess to adjudicate a dispute unless the legislature has granted the agency exclusive jurisdiction, or the sole power to make the initial determination in the dispute. Subaru of Am., Inc. v. David McDavid Nissan, Inc., 84 S.W.3d 212, 221 (Tex. 2002). Although the Commission has exclusive jurisdiction over a TCHRA claim during the 180-day administrative period, we conclude that upon its expiration, subject matter jurisdiction over any suit asserting the TCHRA claim vests in the judicial branch. . . . the trial court had subject matter jurisdiction of Wallace's TCHRA claims at the conclusion of the administrative period. The trial court, therefore, erred in granting the Department's second plea to the jurisdiction in the December 2005 order.
FROM THE COUNTY COURT OF LAW NO. 1 OF TRAVIS COUNTY
NO. 266975, HONORABLE J. DAVID PHILLIPS, JUDGE PRESIDING
M E M O R A N D U M O P I N I O N
This appeal arises from the dismissal for lack of jurisdiction of appellant Charles E. Wallace's employment discrimination claims against the Texas Department of Health ("the Department") and several of its employees. Wallace contends that the trial court erred in granting pleas to the judiction based upon Wallace's failure to exhaust administrative remedies and sovereign immunity. We affirm in part and reverse and remand in part.
FACTUAL AND PROCEDURAL BACKGROUND
After receiving information in January 2002 concerning similarly situated employees' salaries, Wallace filed a "Charge of Discrimination" in July 2002 with the Federal Equal Employment Opportunity Commission against the Department. In the complaint, Wallace specified that his discrimination complaint was also to be filed with the applicable state agency, the Texas Commission of Human Rights ("Commission"), (1) as well as with the EEOC. In response, the EEOC sent Wallace a letter in August 2002 that notified him of his right to institute a civil action under Title VII of the Civil Rights Act of 1964. (2)
Wallace then proceeded to file this suit against the Department, Eduardo Sanchez, M.D., Sharilyn Stanley, M.D., John Doe and Jane Doe, in November 2002. Against the Department, Wallace alleged race discrimination under the Texas Commission on Human Rights Act ("TCHRA") (3) and under Chapter 106 of the Texas Civil Practice and Remedies Code, constitutional violations, and breach of contract. Against the individual defendants, Wallace alleged constitutional violations, illegal conspiracy, intentional infliction of emotional distress, and breach of contract. (4) In January 2003, approximately two months after he filed suit, Wallace received a "Notice of Right To File A Civil Action" letter from the Commission advising Wallace of his right to file a private civil action in state court within sixty days of the receipt of the letter.
The Department and the individual defendants filed two pleas to the jurisdiction and motions to dismiss that were granted in February 2003 and December 2005. The February 2003 order dismissed without prejudice Wallace's claims against the Department for discrimination based on race and his claims for retaliation under the TCHRA as to "discrete acts occurring more than 180 days" before the date he filed his Charge of Discrimination with the EEOC. The order also dismissed without prejudice Wallace's breach of contract claims, his constitutional tort claims for damages, and his intentional tort, conspiracy, and exemplary damages claims against the individuals in their official capacities. The December 2005 order dismissed without prejudice all of Wallace's discrimination claims based upon race and claims for retaliation under the TCHRA. This appeal followed.
ANALYSIS
On appeal, Wallace contends the trial court erred in dismissing his contract, tort, and money damages claims because his claims are not barred by sovereign immunity and the trial court erred in dismissing his TCHRA claims because he timely filed his petition in accordance with the statutory requirements. For the reasons that follow, we affirm the trial court's February 2003 order that dismissed Wallace's contract, tort, and money damages claims but reverse the trial court's December 2005 order that dismissed Wallace's TCHRA claims.
Standard of Review
A plea to the jurisdiction is a dilatory plea in which a party challenges a trial court's authority to determine the subject matter of an action. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000). Whether a trial court has subject matter jurisdiction is a question of law we review de novo. Texas Natural Res. Conservation Comm'n v. IT-Davy, 74 S.W.3d 849, 855 (Tex. 2002). The plaintiff has the burden to allege facts that affirmatively demonstrate that the trial court has subject matter jurisdiction. Texas Ass'n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993).
February 2003 Order: Sovereign Immunity
Wallace contends the trial court erred in granting the Department's plea to the jurisdiction based on sovereign immunity and dismissing his tort, breach of contract, and money damages claims because the Department and its employees performed illegal or unauthorized acts and the Texas Constitution operates as a waiver of sovereign immunity. We disagree.
Sovereign immunity prevents suits against the State and its employees acting in their official capacity unless the State expressly consents to being sued. IT-Davy, 74 S.W.3d at 855-56; Texas Dep't of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex. 1999); Ab-Tex Beverage Corp. v. Angelo State Univ., 96 S.W.3d 683, 687 n.3 (Tex. App.--Austin 2003, no pet.). (5) Sovereign immunity requires the party suing a governmental entity to plead and prove the State's consent to suit, either by reference to a statute or express legislative permission. IT-Davy, 74 S.W.3d at 853-54. Without the State's consent to suit, sovereign immunity defeats a court's subject matter jurisdiction. Id.
Wallace's allegations do not satisfy his burden to demonstrate that the State has consented to suit for the claims that he has made. See Jones, 8 S.W.3d at 638. Wallace fails to assert factual allegations that show the State consented to suit for his breach of contract claims against the Department and the individuals in their official capacities. See IT-Davy, 74 S.W.3d at 855-56; Ab-Tex Beverage, 96 S.W.3d at 687 n.3. Similarly, Wallace failed to plead facts under the Texas Tort Claims Act to support jurisdiction for his tort claims. See Tex. Civ. Prac. & Rem. Code Ann. §§ 101.021, .025 (West 2005); Texas Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 224-25 (Tex. 2004) (governmental entity is immune from suit for a tort unless liable under Texas Tort Claims Act). We conclude the trial court correctly found that it lacked jurisdiction to hear Wallace's tort, breach of contract, and money damages claims based upon sovereign immunity. (6)
Wallace also contends on appeal that the initial filing of his complaint with the EEOC was timely because it was "within 180 days of the event." This issue possibly addresses the portion of the February 2003 order that dismisses Wallace's TCHRA claims based on "discrete acts occurring more than 180 days" before the date he filed his Charge of Discrimination with the EEOC. Assuming Wallace has raised this issue on appeal, we conclude that the trial court properly dismissed Wallace's claims for "discrete acts" that occurred more than 180 days before he filed his administrative complaint. See generally Ledbetter v. Goodyear Tire & Rubber Co., Inc., 127 S.Ct. 2162 (2007) (charging period runs from "discrete" act of intentional discrimination, not from the date the effects of the act are felt).
We affirm the trial court's February 2003 order in its entirety and turn to the December 2005 order.
December 2005 Order: Exhaustion of Administrative Remedies
The December 2005 order dismissed Wallace's TCHRA claims. Wallace contends he filed his private civil action in accordance with the statutory requirements and that the trial court erred in granting the plea to the jurisdiction and in finding that it lacked jurisdiction. Because we conclude that the trial court had jurisdiction at the time it dismissed Wallace's TCHRA claims, we reverse the December 2005 order.
The labor code establishes certain time periods in which an aggrieved employee must comply to bring a private civil action under the TCHRA. One statutory time period requires an employee to file an administrative complaint within 180 days of any alleged discriminatory acts. See Tex. Lab. Code Ann. § 21.202(a) (West 2006); see also Schroeder v. Texas Iron Works, Inc., 813 S.W.2d 483, 485-86 (Tex. 1991). The Texas Supreme Court has held that this requirement is "mandatory and jurisdictional" and "failing to comply deprives the court of subject matter jurisdiction." Schroeder, 813 S.W.2d at 486 (7); see also Czerwinski v. Univ. of Tex. Health Sci. Ctr., 116 S.W.3d 119, 121-22 (Tex. App.--Houston [14th Dist.] 2002, pet. denied); but see Ancira Enterprises, Inc. v. Fischer, 178 S.W.3d 82, 89 n.8 (Tex. App.--Austin 2005, no pet.) (citing Dubai Petroleum Co. v. Kazi, 12 S.W.3d 71, 76-77 (Tex. 2000); noting "the trend among Texas courts has been to view state statutory prerequisites for claims as mandatory but not jurisdictional").
Another time period under the TCHRA is the administrative process period--the period in which the employee must wait 180 days from filing his administrative complaint or until he receives a right-to-sue letter from the Commission before filing his private civil action. See Tex. Lab. Code Ann. §§ 21.252, .254 (West 2006); Burgmann Seals Am., Inc. v. Cadenhead, 135 S.W.3d 854, 857 (Tex. App.--Houston [1st Dist.] 2004, pet. denied); City of Houston v. Fletcher, 63 S.W.3d 920, 922 (Tex. App.--Houston [14th Dist.] 2002, pet. denied). Texas courts of appeals, including this Court, have concluded that during this period, the Commission's jurisdiction is exclusive as to TCHRA claims. See Vela v. Waco Indep. Sch. Dist., 69 S.W.3d 695, 700 (Tex. App.--Waco 2002, pet. withdrawn) (Schroeder suggests that legislature intended the TCHRA to be the "exclusive forum" for resolving employee discrimination claims.); Stinnett v. Williamson County Sheriff's Dep't, 858 S.W.2d 573, 577 (Tex. App.--Austin 1993, writ denied) (policy of TCHRA furthered by placing "exclusive forum" for resolution of TCHRA claims with the Commission). Had the Department filed its plea to the jurisdiction during the administrative period, the trial court properly would have dismissed Wallace's claims under the TCHRA without prejudice. See also Pinkard v. Pullman-Std., 678 F.2d 1211, 1218-19 (5th Cir. 1982) (action subject to dismissal at any time prior to receipt of right-to-sue letter under Title VII). (8)
At the time the trial court faced the Department's second plea to the jurisdiction in December 2005, however, almost two years had passed since the administrative period had ended.
The issue then is a court's jurisdiction at the conclusion of the administrative period--specifically, whether a court has subject matter jurisdiction when the administrative period ends and a private civil action asserting TCHRA claims remains pending. The courts are not divested by an agency of the subject matter jurisdiction they would otherwise possess to adjudicate a dispute unless the legislature has granted the agency exclusive jurisdiction, or the sole power to make the initial determination in the dispute. Subaru of Am., Inc. v. David McDavid Nissan, Inc., 84 S.W.3d 212, 221 (Tex. 2002). Although the Commission has exclusive jurisdiction over a TCHRA claim during the 180-day administrative period, we conclude that upon its expiration, subject matter jurisdiction over any suit asserting the TCHRA claim vests in the judicial branch. Cf. Perry v. Del Rio, 66 S.W.3d 239, 249-52 (Tex. 2001) (explaining that intervening events can ripen a suit that was unripe and subject to dismissal when filed); but see Bernard v. Browning-Ferris Indus., Inc., No. 01-92-00134-CV, 1994 Tex. App. LEXIS 2541, at **9-11 (Tex. App.--Houston [1st Dist.] 1994, no pet. h.) (op. on reh'g, not designated for publication). (9)
Nor do we believe that the legislature intended claimants like Wallace to be jurisdictionally barred from asserting his TCHRA claim in court, for failure to exhaust administrative remedies, merely because he did not wait the full 180 days after filing his administrative complaint before filing suit. Any defect arising from his premature filing could have been cured if Wallace, upon receipt of the right-to-sue letter from the Commission or at the expiration of the 180th day, had merely dismissed his suit and then immediately re-filed it. We conclude that Wallace's premature filing and failure to take the additional step of non-suiting and refiling, while perhaps having procedural ramifications, is not the sort of defect that goes to the trial court's subject matter jurisdiction over his suit. Cf. Tellez v. City of Socorro, 50 Tex. Sup. Ct. J. 827, 2007 Tex. LEXIS 468, at *3 (Tex. June 1, 2007) (procedural defects do not affect subject matter jurisdiction); Ancira Enterprises, 178 S.W.3d at 89 n.8 (issue of whether "employer" under TCHRA did "not implicate the jurisdiction of the district court").
We also find the Fifth Circuit's reasoning in Pinkard, although it concerned a court's jurisdiction of a prematurely filed claim in the context of a Title VII action, persuasive to our resolution in this case:
[A] dismissal [for premature suits] would be without prejudice, and the plaintiff could bring a
new action upon receipt of a right-to-sue letter. To distinguish such an action, once dismissed and then renewed, from an action where the defect is cured while the action remains pending is to distinguish between a glass half full and a glass half empty. Barring a Title VII plaintiff, who received his right-to-sue letter after filing suit, from ever pursuing his Title VII claim would not only be anomalous, but also would be an extreme sanction, contrary to the general policy of the law to find a way to prevent the loss of valuable rights, not because something was done too late, but rather because it was done too soon. . . . It would also contravene our well-established policy not to interpret Title VII's procedural requirements in a manner that bars substantive claims.
678 F.2d at 1218 (citations omitted). Under a Title VII claim, an employee must file his administrative complaint and then wait to receive a right-to-sue letter from the EEOC before filing a private civil action. Although the TCHRA does not require the receipt of a right-to-sue letter prior to bringing suit, the reasoning in Pinkard is consistent with the TCHRA's language and purpose and supports not barring a TCHRA private civil action based on the employee's procedural failure to dismiss and re-file his action when the action remains pending at the conclusion of the administrative period. (10)
We conclude, therefore, that the trial court had subject matter jurisdiction of Wallace's TCHRA claims at the conclusion of the administrative period. The trial court, therefore, erred in granting the Department's second plea to the jurisdiction in the December 2005 order.
CONCLUSION
We affirm the trial court's order from February 2003, reverse the trial court's December 2005 order, and remand the cause for further proceedings.
___________________________________________
Jan P. Patterson, Justice
Before Justices Patterson, Pemberton and Waldrop
Affirmed in part; Reversed and Remanded in part
Filed: August 28, 2007
1. In 2004, the Texas Commission on Human Rights was abolished, and its powers and duties were transferred to the civil rights division of the Texas Workforce Commission. See Tex. Lab. Code Ann. § 21.0015 (West 2006).
2. 42 U.S.C.A. §§ 2000e to 2000e-17 (West 2003 & Supp. 2006).
3. Tex. Lab. Code Ann. §§ 21.001-.556 (West 2006 & Supp. 2006).
4. Wallace sued Sanchez in his official capacity, but he sued Stanley in both her official and individual capacities.
5. Sovereign immunity consists of two basic principles of law, immunity from liability and immunity from suit. Immunity from liability does not affect a court's jurisdiction to hear a case. On the other hand, immunity from suit defeats a trial court's subject matter jurisdiction. Tsumi, Inc. v. Texas Parks & Wildlife Dep't, 23 S.W.3d 58, 61 (Tex. App.--Austin 2000, pet. denied).
6. Wallace also raises official immunity on appeal as to the individual defendants. Official immunity is an affirmative defense that protects government employees from personal liability. Ballantyne v. Champion Builders, Inc., 144 S.W.3d 417, 424 (Tex. 2004); Telthorster v. Tennell, 92 S.W.3d 457, 460-61 (Tex. 2002). We do not address this issue because Wallace's remaining claims are under the TCHRA, and Stanley, the only defendant sued in her individual capacity, is not subject to liability under the TCHRA. See Tex. Lab. Code Ann. § 21.002(8) ("employer" defined); Medina v. Ramsey Steel Co., Inc., 238 F.3d 674, 686 (5th Cir. 2001) (supervisors not considered "employers" under labor code).
7. In Schroeder, the complainant failed to file an administrative complaint before filing suit. Schroeder v. Texas Iron Works, Inc., 813 S.W.2d 483, 485-86 (Tex. 1991). In that context, the supreme court concluded that the complainant's "failure to file a complaint and to pursue his administrative remedies with the Commission create[d] a jurisdictional bar." Id. at 488. Wallace, in contrast, filed his administrative complaint before his private civil action.
8. In enacting the TCHRA, the Legislature intended to correlate state law with federal law in employment discrimination cases. See Tex. Lab. Code Ann. § 21.001. "Because one purpose of the [TCHRA] is to bring Texas law in line with federal laws addressing discrimination, federal case law may be cited as authority." Specialty Retailers v. DeMoranville, 933 S.W.2d 490, 492 (Tex. 1996).
9. In Bernard, an aggrieved employee filed his complaint with the Commission and then, later on the same day, he filed his civil action in state court. Bernard v. Browning-Ferris Indus., Inc., No. 01-92-00134-CV, 1994 Tex. App. LEXIS 2541, at *9 (Tex. App.--Houston [1st Dist.] 1994, no pet. h.) (op. on reh'g, not designated for publication). Our sister court found that it lacked jurisdiction and dismissed the employee's discrimination claims under the TCHRA, reasoning that by allowing the employee to proceed to court without regard to the administrative process, the process would be disrupted and would minimize the possibility of resolving the complaint informally. Id. at **8-16. We find the reasoning in Bernard unpersuasive under the facts before this Court because the Department could have obtained a dismissal of Wallace's TCHRA claims without prejudice at any time prior to the expiration of the administrative period, which action would have addressed the stated concerns in Bernard--disruption of the administrative process and minimization of the possibility of informal resolution.
10. Because we hold that the trial court had subject matter jurisdiction and that it erred in dismissing Wallace's TCHRA claims, we do not address Wallace's contentions on appeal concerning the right-to-sue letters that he received from the Commission and the EEOC or the availability of equitable considerations when a civil action is prematurely filed.
Showing posts with label TCHRA cases. Show all posts
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Wednesday, August 29, 2007
Wednesday, August 1, 2007
Professor's age discrimination complaint filed too late
Robert J. Klebe v. University of Texas System, University of Texas Health Science Center at San Antonio, and Brian Herman, No. 03-05-00527-CV (Tex.App.- Austin, Jul. 31, 2007)(Opinion by Chief Justice Law
Appeal from 353rd District Court of Travis County - Affirmed
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 353RD JUDICIAL DISTRICT
NO. GN403520, HONORABLE PETER M. LOWRY, JUDGE PRESIDING
MEMORANDUM OPINION BY JUSTICE KEN LAW
Robert Klebe brings this interlocutory appeal in his age discrimination suit against the University of Texas System, the University of Texas Health Science Center, and Brian Herman, former Chair of the Department of Cellular and Structural Biology at the Health Science Center. The trial court granted appellees' plea to the jurisdiction and dismissed Klebe's suit. In two issues, Klebe complains that the trial court erred in finding that his complaint was filed too late and in finding that sovereign immunity barred his federal complaint from being brought in state court. We affirm the trial court's judgment.
Background
Klebe was a tenured faculty member in the Department of Cellular and Structural Biology at the University of Texas Health Science Center at San Antonio, a component institution of the University of Texas System. Klebe's immediate supervisor at all relevant times was Brian Herman, Chair of the Department of Cellular and Structural Biology.
Sometime in 1998, Herman notified tenured faculty members who were engaged in research that, under departmental policy, they needed to secure outside funding for part of their salaries. On June 20, 2003, Herman sent Klebe a letter informing Klebe that his salary would be reduced by 25% effective September 1, 2003. The letter included the exact reduction in annual and monthly pay. It also discussed the reason for the reduction as Klebe's failure to raise adequate outside funding and was accompanied by Klebe's faculty evaluations for the past four years. On September 1, 2003, his salary was reduced by 25%.
On January 29, 2004, Klebe filed a complaint with the Equal Employment Opportunity Commission (EEOC) alleging age discrimination as the motivating factor for his salary reduction. Klebe listed September 1, 2003, the effective date of the reduction, as the date on which the discriminatory act occurred. This complaint was filed 220 days after Herman's notification letter to Klebe about the pay decision, and 151 days after the reduction went into effect. The EEOC issued a notice of right to sue on August 24, 2004, and Klebe filed his original petition on October 22, 2004.
Klebe's original petition claimed age discrimination under the Texas Labor Code. See Tex. Lab. Code Ann. §§ 21.001-.556 (West 2006). Klebe alleged that the salary reduction was being used to fund salaries for younger faculty because of a budgetary freeze on funds to hire new faculty and that he "had no duty to work as a fundraiser." Appellees filed a plea to the jurisdiction alleging that Klebe's complaint was untimely filed because it was filed over 180 days after Herman had informed Klebe of the decision to reduce his salary. Klebe filed a first and then a second amended petition adding a claim under the federal Age Discrimination in Employment Act (ADEA). See 20 U.S.C.A. §§ 621-634 (West 1999 & Supp. 2007). He argued that the ADEA claim granted him 300 days to file both the state and federal complaints with the EEOC.
Accordingly, he asserts that both claims were timely filed whether the limitations period began when Herman informed him of the reduction on June 20, or when the reduction went into effect on September 1.
On August 2, 2005, the trial court sustained appellees' plea to the jurisdiction and dismissed Klebe's claims under the Texas Labor Code and the ADEA. Klebe timely filed a notice of appeal from the order on August 5, 2005.
Discussion
Standard of review
A challenge to the trial court's subject matter jurisdiction may be asserted in a plea to the jurisdiction. Texas Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225-26 (Tex. 2004). Orders sustaining a plea to the jurisdiction are reviewed de novo. Sweeny v. Jefferson, 212 S.W.3d 556, 561 (Tex. App.--Austin 2006, no pet.). We do not weigh the merits of the claim but consider only the plaintiff's pleadings and the evidence pertinent to the jurisdictional inquiry. County of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex. 2002). A plaintiff must allege facts affirmatively demonstrating the trial court's jurisdiction to hear the case. Texas Ass'n of Business v. Texas Air Control Bd., 852 S.W.2d 440, 443-44 (Tex. 1993). We construe the pleadings liberally in the plaintiff's favor and look to the pleader's intent. Miranda, 133 S.W.3d at 226. We accept all plaintiff's allegations as true and consider only the evidence pertinent to the jurisdictional inquiry. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 555 (Tex. 2000).
If the pleadings affirmatively negate the existence of jurisdiction, then a plea to the jurisdiction may be granted without allowing the plaintiff an opportunity to amend. Brown, 80 S.W.3d at 555. On the other hand, when a plaintiff fails to plead facts sufficient to establish jurisdiction, but the petition does not affirmatively demonstrate incurable defects in jurisdiction, the issue is one of pleading sufficiency and the plaintiff should be afforded the opportunity to amend. Id. If a plaintiff has been provided a reasonable opportunity to amend and the amended pleadings still do not allege facts sufficient to invoke jurisdiction, then the trial court should dismiss the plaintiff's action with prejudice. See Harris County v. Sykes, 136 S.W.3d 635, 639 (Tex. 2004).
Texas Labor Code complaint
Texas law prohibits age discrimination in employment. Tex. Lab. Code Ann. § 21.051 (West 2006). Aggrieved parties must file a complaint with the Civil Rights Division of the Texas Workforce Commission (1) no later than 180 days after the alleged unlawful employment practice occurred. Id. §§ 21.0015, 21.202. Failure to file a timely complaint with the commission deprives the trial court of subject-matter jurisdiction. Schroeder v. Texas Iron Works, Inc., 813 S.W.2d 483, 486 (Tex. 1991) (citing Green v. Aluminum Co. of Am., 760 S.W.2d 378, 380 (Tex. App.--Austin 1988, no writ)). (2) Because one purpose of the Commission on Human Rights Act is to harmonize Texas law with federal laws addressing discrimination, federal case law may be cited as authority. Specialty Retailers, Inc. v. DeMoranville, 933 S.W.2d 490, 492 (Tex. 1996).
Klebe contends that he had 300 days, not 180, to file his labor code complaint because he was also filing a claim under federal law. He argues that filing both complaints with the Equal Employment Opportunity Commission gave him the 300 day timetable for both. (3) Federal and state courts have consistently rejected this contention. See Pope v. MCI Telecomm. Corp., 937 F.2d 258, 264 (5th Cir. 1991) (holding that state law claims are governed by state, not federal, limitations periods); DeMoranville v. Specialty Retailers, Inc., 909 S.W.2d 90, 92 (Tex. App.--Houston [14th Dist.] 1995), rev'd on other grounds, 933 S.W.2d 490 (Tex. 1996) (holding that "[a]lthough the Age Discrimination in Employment Act . . . has extended the time for filing to 300 days, the Texas time period is not affected."). Klebe's labor code claim was governed by the 180 day state law limitation period. Tex. Lab. Code Ann. § 21.202.
The limitation period begins when the employee is informed of the allegedly discriminatory employment decision, not when that decision "comes to fruition." Specialty Retailers, Inc., 933 S.W.2d at 490. Determining when the employer informs the employee is based on an objective standard, focusing on when the employee knew, or reasonably should have known, that the adverse employment decision had been made. Clark v. Resistoflex Co., 854 F.2d 762, 765 (5th Cir. 1988).
The Texas Supreme Court has held a complaint untimely filed when the employee was informed of the adverse employment decision over a year before filing her complaint. Specialty Retailers, 933 S.W.2d 490 (Tex. 1996). In Specialty Retailers, the employee was told she would be fired if her medical leave lasted longer than one year. Id. at 492. After one year of medical leave she was fired and filed her complaint. Id. The Texas Supreme Court held that the unlawful practice was the decision to fire her because of the duration of her disability; actual termination a year later was merely a result of that decision. Id. at 493. Because she was informed of the policy more than 180 days before filing her complaint, it was untimely filed and deprived the trial court of jurisdiction. Id.
In this case, Herman's June 20 letter to Klebe was very specific concerning the adverse employment action. The letter informed Klebe of the percentage reduction and also translated that reduction into dollars and cents. The letter gave a specific implementation date and a specific reason for the reduction. At this point, Klebe knew or should have known that an adverse employment decision had been made. (4)
However, Klebe makes general assertions that there was no authority to reduce his salary and that the Regent's Rules concerning the timing of any changes in employment contracts were not followed. The State asserts that appropriate policies were followed. Although not cited in the briefs, this Court has a recent case discussing the authority to make a decision as that might impact notice. Texas Parks & Wildlife Department v. Dearing involved an adverse job reclassification. 150 S.W.3d 452, 458-59 (Tex. App.--Austin 2004, pet. denied). In Dearing, state law prohibited the employer from reclassifying jobs if reclassification would result in lowered pay. Id. at 458. In anticipation of new legislative authority to make such reclassifications, the employer held group meetings with employees to discuss the employer's plans to reclassify certain positions. Id. About a month later the state legislature granted authority to make such reclassifications, which the employer did. Id.
An employee who alleged that his job was reclassified based on improper age considerations filed a complaint with the Texas Commission on Human Rights less than 180 days after the reclassifications went into effect. Id. The employer claimed the complaint was untimely because the limitations period started when the employee was informed of the possible reclassifications at the group meetings, which were held more than 180 days before the complaint was filed. Id.
This Court disagreed for two reasons. First, this court found that the alleged notice at the meetings was equivocal. Id. at 459. It was a fact question whether the employee should have reasonably known that the decision had been made to reclassify his job at that time. Id. Second, this court found that the employee could not have been "informed" of the decision at the meetings because at that time state law prohibited the employer from making the decision at all. Id. Distinguishing Specialty Retailers, we noted that it "concerned an employer's established company policy and unequivocal communication to the employee that the policy would be enforced as to her." Id. In contrast, Dearing concerned equivocal communication of "an employer's decision to take future action based on new legislation giving it authority for the first time to do so." Id.
Klebe has not brought himself within Dearing's ambit. Klebe asserted, in a general sense, that his employer did not have the authority to change his job conditions, based in part on his contention that his "contract" consisted in party of having a lower pay than the private sector but security in his job conditions. He also claimed that the Regent's Rules were not followed with regard to the timing of the change. However, none of Klebe's claims involve the same kind of legislative prohibition as was at issue in Dearing. Even accepting Klebe's pleadings as true and construing them liberally in his favor, the best they can show is that his employers may not have strictly followed internal procedures. They do not show that his employers were prohibited by state law from reducing his pay the same way state law prohibited the Dearing employer.
As of the June 20, 2003 letter, Klebe knew or reasonably should have known that appellees had decided to reduce his pay. Thus, he was informed of the alleged unlawful employment decision and the limitation period started on that date. Because he filed his complaint on January 29, 2004, over 180 days after the June 20, 2003 letter, his complaint was untimely and deprived the trial court of subject-matter jurisdiction to hear his claim. He had numerous opportunities to amend his pleadings to present facts sufficient to invoke the trial court's jurisdiction and failed to do so. (5) Accordingly, we affirm the trial court's order granting appellees' plea to the jurisdiction and dismissing Klebe's state law claim.
ADEA claim
The Eleventh Amendment bars state court suits for damages against the State for violation of federal law. Alden v. Maine, 527 U.S. 706, 712 (1999). The bar may be lifted by Congressional abrogation or state waiver. Id. at 755-756. The ADEA does not abrogate Eleventh Amendment immunity because the ADEA could not be enacted pursuant to section five of the Fourteenth Amendment. Kimel v. Florida, 528 U.S. 62, 83-84 (2000). A state may waive its Eleventh Amendment immunity if the state voluntarily invokes federal court jurisdiction or makes a "clear declaration" that it intends to submit itself to federal court jurisdiction. Meyers ex rel. Benzig v. Texas, 410 F.3d 236, 241 (5th Cir. 2005). The "clear declaration" to which Meyers refers is some type of statutory declaration of the State's intent to be bound. Sullivan v. University of Tex. Health Science Ctr., 217 Fed. Appx. 391, 2007 U.S. App. LEXIS 3190 (5th Cir. 2007). A "clear declaration" is made only when stated by "the most express language or by such overwhelming implication from the text as will leave no room for any other reasonable construction." Edelman v. Jordan, 415 U.S. 651, 673 (1974).
Therefore, Klebe must show that Texas has waived its sovereign immunity for suits under the ADEA. He offers no legislative pronouncement that expressly authorizes such a suit. Rather, he claims that there is an implied waiver in the Texas Commission on Human Rights Act (the Act) for all age discrimination claims, including the ADEA.
The Act provides a limited waiver of sovereign immunity when a governmental unit has committed employment discrimination on the basis of race, color, disability, religion, sex, national origin, or age. Tex. Lab. Code Ann. § 21.002 (8)(D) (defining "employer" to include political subdivision of state or county, municipality, state agency), § 21.051 (outlining circumstances under which "employer" commits unlawful employment practice); Texas Dep't of Criminal Justice v. Cooke, 149 S.W.3d 700, 704 (Tex. App.--Austin 2004, no pet.). However, the "complainant" who is authorized to bring such a suit, Tex. Lab. Code Ann. § 21.254, is defined as "an individual who brings an action or proceeding under this chapter." Id. § 21.002 (4) (emphasis added). Therefore, the plain language of the act appears to limit its waiver to suits brought under the Texas Act, not the ADEA. Accordingly, Klebe has not shown the kind of "express language" or "overwhelming implication" required to establish a waiver of Eleventh Amendment immunity. We overrule his second issue.
Conclusion
We have found Klebe's state law claim barred by untimely filing of the administrative complaint and his ADEA claim barred by state sovereign immunity. Therefore, we affirm in its entirety the trial court's judgment granting appellee's first amended plea to the jurisdiction and dismissing appellant's claims under the Texas Labor Code and the Age Discrimination in Employment Act.
W. Kenneth Law, Chief Justice
Before Chief Justice Law, Justices Pemberton and Waldrop
Affirmed
Filed: July 31, 2007
1. Such complaints were formerly filed with the Texas Commission on Human Rights. See Tex. Lab. Code Ann. § 21.0015 (West 2006) (transferring responsibility to Texas Workforce Commission).
2. In Texas Department of Protective & Regulatory Services v. Lynn, this Court discussed the continued viability of cases holding that the 180 day filing requirement implicated the trial court's subject-matter jurisdiction in light of recent cases expressing reluctance to characterize statutory elements or prerequisites as jurisdictional. No. 03-04-00635-CV, 2005 Tex. App. LEXIS 6682, at *14 (Tex. App.--Austin Aug. 19, 2005, pet. denied) (mem. op.) (discussing Dubai Petroleum Co. v. Kazi, 12 S.W.3d 71, 76-77 (Tex. 2000), and its progeny). Lynn distinguished the statutory requirements in those cases from the Commission on Human Rights Act's administrative process, which the supreme court has squarely held to be an exhaustion of remedies requirement. Id. (citing Schroeder v. Texas Iron Works, Inc., 813 S.W.2d 483, 485-88 (Tex. 1991)). Failure to exhaust administrative remedies remains truly a jurisdictional requirement. Id.
3. Because Texas is a deferral state, if an employee wishes to pursue a federal claim such as the ADEA, the time limit for filing that complaint with the EEOC is 300 days. This allows relevant state agencies to address the allegations first. See Stanley Stores, Inc. v. Chavana, 909 S.W.2d 554, 557 (Tex. App.--Corpus Christi 1995, writ denied). For the purposes of argument, appellees concede that appellant's ADEA claim was timely filed.
4. Klebe's pleadings contended that the very decision to impose a fund raising requirement, which occurred in 1998, was an act of age discrimination in that it was more difficult for older professors to secure grant funding than for younger professors.
5. Klebe had multiple opportunities to do so: he amended his pleadings twice and filed a reply and a post-submission brief in opposition to the plea to the jurisdiction.
Appeal from 353rd District Court of Travis County - Affirmed
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 353RD JUDICIAL DISTRICT
NO. GN403520, HONORABLE PETER M. LOWRY, JUDGE PRESIDING
MEMORANDUM OPINION BY JUSTICE KEN LAW
Robert Klebe brings this interlocutory appeal in his age discrimination suit against the University of Texas System, the University of Texas Health Science Center, and Brian Herman, former Chair of the Department of Cellular and Structural Biology at the Health Science Center. The trial court granted appellees' plea to the jurisdiction and dismissed Klebe's suit. In two issues, Klebe complains that the trial court erred in finding that his complaint was filed too late and in finding that sovereign immunity barred his federal complaint from being brought in state court. We affirm the trial court's judgment.
Background
Klebe was a tenured faculty member in the Department of Cellular and Structural Biology at the University of Texas Health Science Center at San Antonio, a component institution of the University of Texas System. Klebe's immediate supervisor at all relevant times was Brian Herman, Chair of the Department of Cellular and Structural Biology.
Sometime in 1998, Herman notified tenured faculty members who were engaged in research that, under departmental policy, they needed to secure outside funding for part of their salaries. On June 20, 2003, Herman sent Klebe a letter informing Klebe that his salary would be reduced by 25% effective September 1, 2003. The letter included the exact reduction in annual and monthly pay. It also discussed the reason for the reduction as Klebe's failure to raise adequate outside funding and was accompanied by Klebe's faculty evaluations for the past four years. On September 1, 2003, his salary was reduced by 25%.
On January 29, 2004, Klebe filed a complaint with the Equal Employment Opportunity Commission (EEOC) alleging age discrimination as the motivating factor for his salary reduction. Klebe listed September 1, 2003, the effective date of the reduction, as the date on which the discriminatory act occurred. This complaint was filed 220 days after Herman's notification letter to Klebe about the pay decision, and 151 days after the reduction went into effect. The EEOC issued a notice of right to sue on August 24, 2004, and Klebe filed his original petition on October 22, 2004.
Klebe's original petition claimed age discrimination under the Texas Labor Code. See Tex. Lab. Code Ann. §§ 21.001-.556 (West 2006). Klebe alleged that the salary reduction was being used to fund salaries for younger faculty because of a budgetary freeze on funds to hire new faculty and that he "had no duty to work as a fundraiser." Appellees filed a plea to the jurisdiction alleging that Klebe's complaint was untimely filed because it was filed over 180 days after Herman had informed Klebe of the decision to reduce his salary. Klebe filed a first and then a second amended petition adding a claim under the federal Age Discrimination in Employment Act (ADEA). See 20 U.S.C.A. §§ 621-634 (West 1999 & Supp. 2007). He argued that the ADEA claim granted him 300 days to file both the state and federal complaints with the EEOC.
Accordingly, he asserts that both claims were timely filed whether the limitations period began when Herman informed him of the reduction on June 20, or when the reduction went into effect on September 1.
On August 2, 2005, the trial court sustained appellees' plea to the jurisdiction and dismissed Klebe's claims under the Texas Labor Code and the ADEA. Klebe timely filed a notice of appeal from the order on August 5, 2005.
Discussion
Standard of review
A challenge to the trial court's subject matter jurisdiction may be asserted in a plea to the jurisdiction. Texas Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225-26 (Tex. 2004). Orders sustaining a plea to the jurisdiction are reviewed de novo. Sweeny v. Jefferson, 212 S.W.3d 556, 561 (Tex. App.--Austin 2006, no pet.). We do not weigh the merits of the claim but consider only the plaintiff's pleadings and the evidence pertinent to the jurisdictional inquiry. County of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex. 2002). A plaintiff must allege facts affirmatively demonstrating the trial court's jurisdiction to hear the case. Texas Ass'n of Business v. Texas Air Control Bd., 852 S.W.2d 440, 443-44 (Tex. 1993). We construe the pleadings liberally in the plaintiff's favor and look to the pleader's intent. Miranda, 133 S.W.3d at 226. We accept all plaintiff's allegations as true and consider only the evidence pertinent to the jurisdictional inquiry. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 555 (Tex. 2000).
If the pleadings affirmatively negate the existence of jurisdiction, then a plea to the jurisdiction may be granted without allowing the plaintiff an opportunity to amend. Brown, 80 S.W.3d at 555. On the other hand, when a plaintiff fails to plead facts sufficient to establish jurisdiction, but the petition does not affirmatively demonstrate incurable defects in jurisdiction, the issue is one of pleading sufficiency and the plaintiff should be afforded the opportunity to amend. Id. If a plaintiff has been provided a reasonable opportunity to amend and the amended pleadings still do not allege facts sufficient to invoke jurisdiction, then the trial court should dismiss the plaintiff's action with prejudice. See Harris County v. Sykes, 136 S.W.3d 635, 639 (Tex. 2004).
Texas Labor Code complaint
Texas law prohibits age discrimination in employment. Tex. Lab. Code Ann. § 21.051 (West 2006). Aggrieved parties must file a complaint with the Civil Rights Division of the Texas Workforce Commission (1) no later than 180 days after the alleged unlawful employment practice occurred. Id. §§ 21.0015, 21.202. Failure to file a timely complaint with the commission deprives the trial court of subject-matter jurisdiction. Schroeder v. Texas Iron Works, Inc., 813 S.W.2d 483, 486 (Tex. 1991) (citing Green v. Aluminum Co. of Am., 760 S.W.2d 378, 380 (Tex. App.--Austin 1988, no writ)). (2) Because one purpose of the Commission on Human Rights Act is to harmonize Texas law with federal laws addressing discrimination, federal case law may be cited as authority. Specialty Retailers, Inc. v. DeMoranville, 933 S.W.2d 490, 492 (Tex. 1996).
Klebe contends that he had 300 days, not 180, to file his labor code complaint because he was also filing a claim under federal law. He argues that filing both complaints with the Equal Employment Opportunity Commission gave him the 300 day timetable for both. (3) Federal and state courts have consistently rejected this contention. See Pope v. MCI Telecomm. Corp., 937 F.2d 258, 264 (5th Cir. 1991) (holding that state law claims are governed by state, not federal, limitations periods); DeMoranville v. Specialty Retailers, Inc., 909 S.W.2d 90, 92 (Tex. App.--Houston [14th Dist.] 1995), rev'd on other grounds, 933 S.W.2d 490 (Tex. 1996) (holding that "[a]lthough the Age Discrimination in Employment Act . . . has extended the time for filing to 300 days, the Texas time period is not affected."). Klebe's labor code claim was governed by the 180 day state law limitation period. Tex. Lab. Code Ann. § 21.202.
The limitation period begins when the employee is informed of the allegedly discriminatory employment decision, not when that decision "comes to fruition." Specialty Retailers, Inc., 933 S.W.2d at 490. Determining when the employer informs the employee is based on an objective standard, focusing on when the employee knew, or reasonably should have known, that the adverse employment decision had been made. Clark v. Resistoflex Co., 854 F.2d 762, 765 (5th Cir. 1988).
The Texas Supreme Court has held a complaint untimely filed when the employee was informed of the adverse employment decision over a year before filing her complaint. Specialty Retailers, 933 S.W.2d 490 (Tex. 1996). In Specialty Retailers, the employee was told she would be fired if her medical leave lasted longer than one year. Id. at 492. After one year of medical leave she was fired and filed her complaint. Id. The Texas Supreme Court held that the unlawful practice was the decision to fire her because of the duration of her disability; actual termination a year later was merely a result of that decision. Id. at 493. Because she was informed of the policy more than 180 days before filing her complaint, it was untimely filed and deprived the trial court of jurisdiction. Id.
In this case, Herman's June 20 letter to Klebe was very specific concerning the adverse employment action. The letter informed Klebe of the percentage reduction and also translated that reduction into dollars and cents. The letter gave a specific implementation date and a specific reason for the reduction. At this point, Klebe knew or should have known that an adverse employment decision had been made. (4)
However, Klebe makes general assertions that there was no authority to reduce his salary and that the Regent's Rules concerning the timing of any changes in employment contracts were not followed. The State asserts that appropriate policies were followed. Although not cited in the briefs, this Court has a recent case discussing the authority to make a decision as that might impact notice. Texas Parks & Wildlife Department v. Dearing involved an adverse job reclassification. 150 S.W.3d 452, 458-59 (Tex. App.--Austin 2004, pet. denied). In Dearing, state law prohibited the employer from reclassifying jobs if reclassification would result in lowered pay. Id. at 458. In anticipation of new legislative authority to make such reclassifications, the employer held group meetings with employees to discuss the employer's plans to reclassify certain positions. Id. About a month later the state legislature granted authority to make such reclassifications, which the employer did. Id.
An employee who alleged that his job was reclassified based on improper age considerations filed a complaint with the Texas Commission on Human Rights less than 180 days after the reclassifications went into effect. Id. The employer claimed the complaint was untimely because the limitations period started when the employee was informed of the possible reclassifications at the group meetings, which were held more than 180 days before the complaint was filed. Id.
This Court disagreed for two reasons. First, this court found that the alleged notice at the meetings was equivocal. Id. at 459. It was a fact question whether the employee should have reasonably known that the decision had been made to reclassify his job at that time. Id. Second, this court found that the employee could not have been "informed" of the decision at the meetings because at that time state law prohibited the employer from making the decision at all. Id. Distinguishing Specialty Retailers, we noted that it "concerned an employer's established company policy and unequivocal communication to the employee that the policy would be enforced as to her." Id. In contrast, Dearing concerned equivocal communication of "an employer's decision to take future action based on new legislation giving it authority for the first time to do so." Id.
Klebe has not brought himself within Dearing's ambit. Klebe asserted, in a general sense, that his employer did not have the authority to change his job conditions, based in part on his contention that his "contract" consisted in party of having a lower pay than the private sector but security in his job conditions. He also claimed that the Regent's Rules were not followed with regard to the timing of the change. However, none of Klebe's claims involve the same kind of legislative prohibition as was at issue in Dearing. Even accepting Klebe's pleadings as true and construing them liberally in his favor, the best they can show is that his employers may not have strictly followed internal procedures. They do not show that his employers were prohibited by state law from reducing his pay the same way state law prohibited the Dearing employer.
As of the June 20, 2003 letter, Klebe knew or reasonably should have known that appellees had decided to reduce his pay. Thus, he was informed of the alleged unlawful employment decision and the limitation period started on that date. Because he filed his complaint on January 29, 2004, over 180 days after the June 20, 2003 letter, his complaint was untimely and deprived the trial court of subject-matter jurisdiction to hear his claim. He had numerous opportunities to amend his pleadings to present facts sufficient to invoke the trial court's jurisdiction and failed to do so. (5) Accordingly, we affirm the trial court's order granting appellees' plea to the jurisdiction and dismissing Klebe's state law claim.
ADEA claim
The Eleventh Amendment bars state court suits for damages against the State for violation of federal law. Alden v. Maine, 527 U.S. 706, 712 (1999). The bar may be lifted by Congressional abrogation or state waiver. Id. at 755-756. The ADEA does not abrogate Eleventh Amendment immunity because the ADEA could not be enacted pursuant to section five of the Fourteenth Amendment. Kimel v. Florida, 528 U.S. 62, 83-84 (2000). A state may waive its Eleventh Amendment immunity if the state voluntarily invokes federal court jurisdiction or makes a "clear declaration" that it intends to submit itself to federal court jurisdiction. Meyers ex rel. Benzig v. Texas, 410 F.3d 236, 241 (5th Cir. 2005). The "clear declaration" to which Meyers refers is some type of statutory declaration of the State's intent to be bound. Sullivan v. University of Tex. Health Science Ctr., 217 Fed. Appx. 391, 2007 U.S. App. LEXIS 3190 (5th Cir. 2007). A "clear declaration" is made only when stated by "the most express language or by such overwhelming implication from the text as will leave no room for any other reasonable construction." Edelman v. Jordan, 415 U.S. 651, 673 (1974).
Therefore, Klebe must show that Texas has waived its sovereign immunity for suits under the ADEA. He offers no legislative pronouncement that expressly authorizes such a suit. Rather, he claims that there is an implied waiver in the Texas Commission on Human Rights Act (the Act) for all age discrimination claims, including the ADEA.
The Act provides a limited waiver of sovereign immunity when a governmental unit has committed employment discrimination on the basis of race, color, disability, religion, sex, national origin, or age. Tex. Lab. Code Ann. § 21.002 (8)(D) (defining "employer" to include political subdivision of state or county, municipality, state agency), § 21.051 (outlining circumstances under which "employer" commits unlawful employment practice); Texas Dep't of Criminal Justice v. Cooke, 149 S.W.3d 700, 704 (Tex. App.--Austin 2004, no pet.). However, the "complainant" who is authorized to bring such a suit, Tex. Lab. Code Ann. § 21.254, is defined as "an individual who brings an action or proceeding under this chapter." Id. § 21.002 (4) (emphasis added). Therefore, the plain language of the act appears to limit its waiver to suits brought under the Texas Act, not the ADEA. Accordingly, Klebe has not shown the kind of "express language" or "overwhelming implication" required to establish a waiver of Eleventh Amendment immunity. We overrule his second issue.
Conclusion
We have found Klebe's state law claim barred by untimely filing of the administrative complaint and his ADEA claim barred by state sovereign immunity. Therefore, we affirm in its entirety the trial court's judgment granting appellee's first amended plea to the jurisdiction and dismissing appellant's claims under the Texas Labor Code and the Age Discrimination in Employment Act.
W. Kenneth Law, Chief Justice
Before Chief Justice Law, Justices Pemberton and Waldrop
Affirmed
Filed: July 31, 2007
1. Such complaints were formerly filed with the Texas Commission on Human Rights. See Tex. Lab. Code Ann. § 21.0015 (West 2006) (transferring responsibility to Texas Workforce Commission).
2. In Texas Department of Protective & Regulatory Services v. Lynn, this Court discussed the continued viability of cases holding that the 180 day filing requirement implicated the trial court's subject-matter jurisdiction in light of recent cases expressing reluctance to characterize statutory elements or prerequisites as jurisdictional. No. 03-04-00635-CV, 2005 Tex. App. LEXIS 6682, at *14 (Tex. App.--Austin Aug. 19, 2005, pet. denied) (mem. op.) (discussing Dubai Petroleum Co. v. Kazi, 12 S.W.3d 71, 76-77 (Tex. 2000), and its progeny). Lynn distinguished the statutory requirements in those cases from the Commission on Human Rights Act's administrative process, which the supreme court has squarely held to be an exhaustion of remedies requirement. Id. (citing Schroeder v. Texas Iron Works, Inc., 813 S.W.2d 483, 485-88 (Tex. 1991)). Failure to exhaust administrative remedies remains truly a jurisdictional requirement. Id.
3. Because Texas is a deferral state, if an employee wishes to pursue a federal claim such as the ADEA, the time limit for filing that complaint with the EEOC is 300 days. This allows relevant state agencies to address the allegations first. See Stanley Stores, Inc. v. Chavana, 909 S.W.2d 554, 557 (Tex. App.--Corpus Christi 1995, writ denied). For the purposes of argument, appellees concede that appellant's ADEA claim was timely filed.
4. Klebe's pleadings contended that the very decision to impose a fund raising requirement, which occurred in 1998, was an act of age discrimination in that it was more difficult for older professors to secure grant funding than for younger professors.
5. Klebe had multiple opportunities to do so: he amended his pleadings twice and filed a reply and a post-submission brief in opposition to the plea to the jurisdiction.
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