Sonya Thorn Lopez, Appellant v. Texas State University, Sherri H. Benn, and Stella Silva

Lopez asserts this sequence of events: she fired Johnson; her supervisors reduced her pay; she filed a pay grievance with TSU; and soon after, she was fired. Although I concur with most of the majority’s decision in this case, I write separately because I respectfully dissent from the majority’s conclusion that Lopez’s claim that TSU retaliated against her for filing a pay grievance is not factually related to the retaliation claim for firing Johnson stated in her EEOC charge and thus Lopez failed to exhaust her administrative remedies for the pay-grievance claim. I also respectfully dissent from the majority’s conclusion that intake questionnaires should be considered to assist the court in determining the scope of the charge only if (1) the facts set out in the questionnaire are a reasonable consequence of a claim set forth in the EEOC charge, and (2) the employer had actual knowledge of the contents of the questionnaire during the course of the EEOC investigation. Instead, I would follow the approach of those federal courts that have considered all the information provided by the employee to the agency when determining whether a particular claim asserted in an employee’s lawsuit would be within the scope of the EEOC investigation that could reasonably be expected to grow out of the initial charges of discrimination. As a result, I would also remand to the trial court Lopez’s claim that TSU retaliated against her for filing a pay grievance.

Lopez’s EEOC charge asserted that she was wrongfully discharged from her position in October 2009 and listed the allegedly pretextual reasons for her discharge. She explained why she believes that the reasons she was given for her discharge were pretextual: “I have not received any prior warnings or counseling; during July 2009, I received a bonus, while during September 2009, I received a merit rate increase.” She then stated what she believes to be one of the real reasons she was discharged: “During September 2009, it was my misfortune to have fired the brother of my department director.” The majority holds that this factual statement would reasonably give rise to an administrative investigation of retaliation for Lopez’s decision to terminate Johnson’s employment, but not her retaliation claim for filing a pay grievance, which it concludes is not factually related to any of the claims stated in the charge.