August 15, 2009
/24-7PressRelease/ --
TCHRA Exclusive Remedy for Discharged City Employee
Article provided by Loya and Associates
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In 2008, the Texas Supreme Court held that the Texas Commission on Human Rights Act (TCHRA) provided the exclusive statutory remedy for a city employee's retaliation claim. In Waco v. Lopez, Robert Lopez filed suit under the Whistleblower Act, alleging he was discharged in retaliation for having reported age and race discrimination that violated the City's equal employment opportunity (EEO) policy.
According to sections 21.055 and 21.051 of the Texas Labor Code, the TCHRA prohibits a covered employee from retaliating "against a person who ... opposes a discriminatory practice," such as an adverse employment decision based on race, color, disability, religion, sex, national origin or age. Lopez, however, never filed a TCHRA complaint. Even so, the court ruled that his grievance filed with the EEO officer alleging discriminatory conduct was enough to amount to a discriminatory practice under TCHRA.
Justice Wainwright, writing for the court, stated "that actionable retaliation exists when an employer makes an adverse employment decision against an employee who voices opposition to conduct made unlawful under [TCHRA], regardless of whether the employee has already filed a formal complaint with the Commission."
The court went on to find that because Lopez's claim fell within TCHRA, and the legislative intent behind TCHRA is tailored more specifically than the Whistleblower Act toward addressing retaliation premised on claimed employment discrimination, Lopez could not proceed under the Whistleblower Act.
Since the TCHRA provides the exclusive remedy for public employees alleging retaliation, the court reasoned that to allow Lopez a choice of remedies would defeat the procedural requirements and blunt the focus of TCHRA -- namely, conciliation instead of litigation.
Even though Lopez did not file a TCHRA complaint, filing an internal grievance about conduct prohibited by TCHRA placed his case within the realm of the act. Lopez must, therefore, have brought his suit under TCHRA, which was tailored to address retaliation for claims of employment discrimination specifically. Because his claim was time-barred under TCHRA, Lopez was not permitted to amend his complaint and pursue a TCHRA claim.
What It Means
Public employees who feel they have suffered employment discrimination or retaliation must exercise caution when selecting their cause of action. Depending on the circumstances, filing under the wrong act could defeat an otherwise valid claim. An experienced employment law attorney can help you weigh your options and protect your interests.
Article provided by Loya and Associates
Visit us at
www.loyalaw.com---
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