Those of us who work with the Equal Employment Opportunity Commission know how difficult it is for folks to convey to the EEOC their complaints. The EEOC is always in a hurry. They do not always take the time necessary to understand an employee’s complaint. So, it is not surprising that in Apache Corp. v. Davis, 573 S.W.3d 475 (Tex.App. Hou. 2019), the employee’s complaint was not completely expressed in her charge. She fully conveyed one claim, sex discrimination, only later, sometime after she submitted the initial charge.

Ms. Davis first submitted an EEOC charge alleging age discrimination and retaliation. She did not check the box for sex discrimination. She did not mention gender discrimination or retaliation for opposing gender discrimination in her charge. She did mention in her charge a Dec. 3 email. She sent that email to HR on Dec. 3 alleging age and sex discrimination. She was then fired weeks after that Dec. 3 email. At trial, the jury found she was not the victim of age discrimination, but she was the victim of retaliation for complaining about age or sex discrimination in her Dec. 3 email. So, on appeal, the question became did she complain to the EEOC about sex discrimination and reprisal for complaining about sex discrimination? Did she exhaust her administrative remedies regarding her claim of sex discrimination?

On appeal, the Houston court noted that the charge included no description of sex discrimination, and no mention that she believed she was retaliated against for complaining about sex discrimination. But, the court noted that Ms. Davis’ charge did mention the Dec. 3 email to HR. And, Apache included a copy of the Dec. 3 email when it responded to Ms. Davis’ charge. And, it noted that Ms. Davis replied to the TWC saying she had been fired because she complained about sex and age discrimination. The court of appeals did not explain the nature of Ms. Davis’ response to the Texas Workforce Commission. It could have simply concerned her application for unemployment benefits. Even so, that response became summary judgment evidence. And, the court saw it as evidence of Ms. Davis’ claim, even if not directly submitted to the EEOC. Id. at 491.

The court found this evidence was enough to support a finding that retaliation for complaining about age or sex discrimination could have developed form the EEOC investigation. See the opinion here.

On Oct. 2, the Texas Supreme Court denied a petition to review the decision. Apache Corp. v. Davis, No. 19-0410 (Tex. 10/2/2020).