180 day deadline to file charge of discrimination runs from date of adverse action, not the date employee discovers action is discriminatory says Austin Court of Appeals

Austin Independent School District v. Andrew Lofters, 03-14-00071-CV (Tex. App. – Austin, April 1, 2015)

In this race discrimination/retaliation case the Third Court of Appeals reversed the denial of the a plea to the jurisdiction for failure to exhaust administrative remedies.

Lofters, and African American male, was one of four assistant principals at AISD. Lofters began attending classes to obtain a doctoral degree and was told his work schedule could be adapted to accommodate the school schedule. Lofters alleged the AISD principal later informed him that he would not agree to an altered work schedule after all, and required Lofters to choose between the doctoral degree program or his assistant principal position. Lofters chose to attend the program, resigned from his assistant principal job and accepted a part-time position as a teacher. Several months later, Lofters discovered other school employees (non-African Americans) were allowed to attend doctoral degree programs with adjusted work schedules. A few months later the school was closed by the Texas Education Agency due to failing accountability ratings and Lofters lost his part time job. He then filed a charge of discrimination with the TEEOC and Texas Workforce Commission, but the charge came 10 months after his resignation from assistant principal. Lofters filed suit and AISD filed a plea to the jurisdiction which the trial court denied.

Lofter had 180 days to file a charge of discrimination. The time period begins to run “when the employee is informed of the allegedly discriminatory employment decision.” “[T]he date of the discriminatory act controls, not some later date when the employee discovers the act is discriminatory.” And since the Texas Supreme Court has explained that application of the discovery rule is justified only in cases in which the injury is both “inherently undiscoverable” and “objectively verifiable” the discovery rule does not apply in this case. There is nothing in the record to suggest Lofters could not have discovered the facts forming the basis for his belief that AISD’s decision was discriminatory. More importantly, “the record does not show that the alleged race discrimination in this case is objectively verifiable.”  Additionally, the court found equitable tolling inapplicable in this case since 1) filing a charge is a jurisdictional requirement and 2) even if not jurisdictional, Lofters had 35 days to file a charge after he learned of the difference in treatment. Finally, the court asserts that Lofters did not file a charge of retaliation (for not helping him find other employment after TEA closure while AISD allegedly helped others) until after the 180 day period for that claim. The retaliation charge does not relate back to the date he filed his discrimination charge. As a result, Lofters did not exhaust his administrative remedies and the trial court is without jurisdiction to hear the case.

If you would like to read this opinion click here. Panel: Justice Puryear, Justice Pemberton and Justice Field. Memorandum Opinion by Justice Puryear. The attorneys listed for AISD are Mr. Richard A. Morris and Mr. Jonathan G. Brush.  The attorneys listed for Lofters are Mr. Harry G. Potter III , Mr. Gary L. Bledsoe, and Mr. Matthew Johnston.