U.S. Supreme Court holds EEOC charge filing process is mandatory, but not jurisdictional


Fort Bend County v Davis, 18-525, (U.S. June 3, 2019).

Lois M. Davis filed a charge against her employer, petitioner Fort Bend County. Davis alleged sexual harassment and retaliation for reporting the harassment. While her EEOC charge was pending, Fort Bend fired Davis because she failed to show up for work on a Sunday and went to a church event instead. Davis attempted to supplement her EEOC charge by handwriting “religion” on a form called an “intake questionnaire,” but she did not amend the formal charge document. Upon receiving a right-to-sue letter, Davis commenced suit in Federal District Court, alleging discrimination on account of religion and retaliation for reporting sexual harassment.  After several years of litigation, Fort Bend raised the issue of the trial court’s lack of jurisdiction over the religious discrimination claim because she did not properly file a charge with the EEOC. The trial court agreed and dismissed the claim. The 5th Circuit Court of Appeals reversed and the County appealed.

The U.S. Supreme Court held the word “jurisdictional” is generally reserved for prescriptions delineating the classes of cases a court may entertain (subject-matter jurisdiction) and the persons over whom the court may exercise adjudicatory authority (personal jurisdiction). A claim-processing rule requiring parties to take certain procedural steps in, or prior to, litigation, may be mandatory in the sense that a court must enforce the rule if timely raised. But not all mandatory rules are jurisdictional. Title VII’s charge-filing requirement is a non-jurisdictional claim-processing rule.

GINSBURG, J., delivered the opinion for a unanimous Court. If you would like to read this opinion click here.

December 2018 Condensed Summaries

The problem with December is courts try to get cases off their desk prior to the holiday break. Clients like to get stuff resolved before the holiday break. Which means a lot of stuff happens in December preventing me from keeping up with all of the cases coming out related to governmental entities.  While I do not like to do it very often, I am having to provide a condensed version of the case summaries for December 2018.

  1. 1st District COA holds county courts at law in Harris County are the exception and have exclusive jurisdiction for inverse condemnation claims. San Jacinto River Authority v. Charles J. Argento 01-18-00406-CV (Tex. App. — Houston [1st] Dec. 4, 2018). Opinion click here.  This is 36 page opinion where the First District Court of Appeals in Houston consolidated several cases where homeowners brought takings claims due to flooding. The court held the Legislature gave the Harris County civil courts at law exclusive jurisdiction over inverse-condemnation claims under Texas Government Code § 25.1032(c). Therefore, the district courts lack subject-matter jurisdiction over those claims. The district courts do, however, have subject-matter jurisdiction over the homeowners’ statutory takings claims under Government Code Chapter 2007, the Private Real Property Rights Preservation Act.


  1. University’s plea to the jurisdiction granted as to ex-employee subject to RIF. Francisco Sanchez, Jr. v. Texas A&M University- San Antonio 04-17-00197-CV (Tex. App. – San Antonio, Dec. 12, 2018). For opinion click A University employee (Sanchez) was subject to a reduction-in-force and brought discrimination charges after being demoted. Sanchez had two positions, with one being a project lead. He filed his EEOC charge for one position after the 180-day deadline from the date of the adverse action and the other EEOC charge was filed within 180 days for the second position. The court held the continuing violation doctrine did not apply to Sanchez. Further, Sanchez could not establish discrimination through direct evidence. The RIF was a legitimate non-discriminatory reason which was not disputed with competent evidence.


  1. Fact that attorney “sent” TTCA claim notice letter is irrelevant; TTCA requires notice to be “received’ within time period. City of San Antonio v. Gabriela Rocha 04-18-00367-CV (Tex App. – San, Antonio, Dec.12, 2018). For opinion click This is a TTCA police vehicle accident case. While the TTCA gives a plaintiff 180 days to provide written notice of claim to waive immunity, the City Charter only provided a 90 day window. And while the affidavit of Rocha’s lawyer notes he “sent” the notice timely, the plain language of the TTCA and Charter require the notice to have been “received” within the time period. So, formal written notice was not received timely. The court then analyzed whether the City had actual notice. After examining the record, the court held nothing indicates the City had actual notice of an injury or property damage. As a result, no waiver of immunity exists.


  1. Officer’s F-5 dishonorable discharged sustained since omission of material facts in report qualifies under a discharge for untruthfulness. Patrick Stacks v. Burnet County Sheriff’s Office 03-17-00752-CV (Tex. App. — Austin, 12, 2018). For opinion click here. This is an appeal from an F-5 determination that a sheriff’s deputy was dishonorably discharged. Stacks was terminated after a confidential information who personally observed a stop made by Stacks brought forth testimony of significant omissions by Stacks in his report. Stacks asserted the omissions did not amount to “untruthfulness.” The administrative law judge as the SOAH hearing disagreed and held Stacks was discharged for untruthfulness and therefore the dishonorable discharge should apply. The district court agreed. The court of appeals held the law recognizes the misleading effect of omissions. A failure to disclose a fact “may be as misleading as a positive misrepresentation…” As a result, for F-5 determinations, a discharge for untruthfulness includes a discharge for omitting material information or facts that rendered a statement misleading or deceptive.  The ALJ determination was sustained.


  1. Property Owners’ takings claims failed as Authority acted within its federal license under Federal Power Act. Jim Waller, et al v. Sabine River Authority of Texas 09-18-00040-CV (Tex. App. – Beaumont, Dec. 6, 2018). For opinion click This is a flooding/inverse condemnation case. During a federal license renewal process, residents who live downstream of the Toledo Bend Dam presented their suggestions about changing the regulations governing the hydroelectric plant to prevent flooding. The suggestions were not incorporated. Then a historic rainfall event occurred causing flooding and the residents sued for takings claims. The Authority acted within the terms of its license and the flooding was caused by the historic rain levels. Further, Plaintiff’s arguments would impose duties expressly rejected by the federal agency during relicensing. As such, the claims are preempted by the Federal Power Act.


  1. Supreme Court remands case to COA to reevaluate based on its holding in Wasson II. Owens v. City of Tyler, 17-0888, 2018 WL 6711522, at *1 (Tex. Dec. 21, 2018). For the opinion click here.  The City of Tyler built Lake Tyler in 1946 and leased lakefront lots to residents in a manner very similar to Wasson. Tenants decided to build a new pier and boathouse extending from their lot onto the water. This caused neighboring tenants to object. The neighboring tenants sued the City after it issued a building permit.  After the intermediate court of appeals issued an opinion, the Texas Supreme Court issued the most recent Wasson decision. As a result, the Supreme Court send remanded the case back to the court of appeals in order analyze the case under the four-part test.



  1. Declaratory Judgment action was first filed, so later filed negligent action must be abated. In re: Texas Christian University, 05-18-00967-CV, (Tex. App. – Dallas, December 21, 2018). For opinion click here. Two negligent/medical malpractice claims were filed, one in Tarrant County and one in Dallas County. The cases are inherently interrelated. The central facts to both lawsuits involve the circumstances surrounding a student athlete’s injury during the September 2015 football game, the subsequent treatment from JPSPG physicians, and the alleged harassment and pressure he felt from TCU’s coaching staff to return to play. To resolve uncertainties regarding the hospital’s liability regarding the athletic event, TCU filed its declaratory judgment action seeking declarations regarding the construction and validity of the Health Services Contract.  As a result, the “first filed” rule dictates the later filed lawsuit by the student must be abated.


  1. Texas Supreme Court details statutory construction to determine emergency medical response exception to liability. Texas Health Presbyterian Hospital of Denton, et al., v D.A., et al. 17-0256 (Tex. December 21, 2018). This is a medical malpractice case, but deals with the emergency medical responder provision of the Texas Medical Liability Act, similar in wording to the emergency responder provision of the Texas Tort Claims Act.  Utilizing statutory construction principals, the court noted punctuation and grammar rules can be crucial to proper construction. The Court focused on the prepositional phrase “in a” hospital, and determined the phrase placed before each contested text indicates the Legislature intended for each phrase to be treated separately. The Plaintiff’s construction argument would require the Court to ignore the second use of the prepositional phrase “in a” and renders that language meaningless. The Court declined to use external aides for construction (including the legislative history). While the Texas Code Construction Act allows a court to rely on such aides, even for unambiguous statutes, the Court held it is the Court, as the high judicial body, who decides when such aides will be used, not the Legislature. Further, statements explaining an individual legislator’s intent cannot reliably describe the legislature body’s intent. By focusing on the language enacted, the Court encourages the legislature to enact unambiguous statutes, it discourages courts from usurping the legislature’s role of deciding what the law should be, and it enables citizens to rely on the laws as published. As a result, based on the language in the statute, the Plaintiffs must establish willful and wanton negligence when their claims arise out of the provision of emergency medical care in a hospital obstetrical unit, regardless of whether that care is provided immediately following an evaluation or treatment in the hospital’s emergency department or at some point later, after the urgency has passed.


  1. Dog owner could seek injunction stay of municipal dangerous dog court order in county court at law. The State of Texas by and through the City of Dallas v. Dallas Pets Alive, Nos 05-18-00084-CV and 05-18-00282-CV. For the opinions click here and here. Rusty, a pit bull/terrier mix dog, bit and injured a two-year-old child at an adoption event. The City determined Rusty was a dangerous dog under Texas Health & Safety Code § 822.002 in municipal court. The adoption center filed an appeal but also filed for injunctive relief in county court at law to stop the municipal court’s order, which the county court at law granted. The City filed a plea to the jurisdiction as to injunction order which was denied. The majority opinion held where the state initiates litigation, it has no immunity from suit. Further, the appellate court (i.e. county court at law) has jurisdiction to protect its own jurisdiction (i.e. involving the subject of a pending appeal). The court held the county court at law had jurisdiction to hear the dangerous dog appeal from municipal court and the injunction was propepr. Justice Lang dissented and would have held the county court at law would not have jurisdiction over the appeal.

Ex-employee failed to file supplemental EEOC charge, so failed to exhaust administrative remedies says Eastland Court of Appeals



Christopher Wernert v. City of Dublin, 11-16-00104-CV (Tex. App. – Eastland, August 30, 2018).

This is an employment discrimination case were the Eastland Court of Appeals affirmed the granting of the City’s dispositive motion.

Wernert was a police officer for the City who suffered a serious knee injury on the job when he slipped and fell on an icy street while directing traffic. The injuries were listed as permanent preventing him from continuing patrol duties. However, Wernert was also an investigator and continued to perform those duties for two years. Then, the Chief of Police added patrol duties back into his job requirements. Wernert filed an EEOC/TWC charge.  Wernert was then required to exhaust his leave but was later terminated by a new Chief when he could not return to work, including patrol. Wernert filed suit but alleged acts which occurred after his EEOC charge was filed. The City filed a summary judgment motion, asserting a lack of jurisdiction for failing to exhaust administrative remedies. The trial court granted the motion and Wernert appealed.

Each discrete act of discrimination requires administrative remedy compliance. Discrete discriminatory acts are not actionable if time-barred, and each discrete discriminatory act starts a new clock for filing charges alleging that act.  The court analyzed the current state and federal law and whether Wernert was required to file a supplement charge in order to preserve acts which occurred after the first charge.  The only adverse actions taken prior to the first charge was a change in job duties, while the forced leave and termination occurred after his charge.  Adopting the reasoning from the U.S. Fifth Circuit expressed in Simmons-Myers v. Caesars Entertainment Corp., 515 F. App’x 269, 273 (5th Cir. 2013), the Eastland court held Wernert’s claims are precluded because he did not file an administrative charge for these discrete acts that occurred after his previous EEOC charge. Wernert was required to pursue administrative relief for each of these discrete acts even though they were related to the factual basis of his previous charge. And since the only acts for which he sought damages were the post-charge acts, the trial court properly granted the summary judgment.

If you would like to read this opinion click here. Panel consists of Justice Willson, Justice Bailey and Senior Justice Wright, Retired. Memorandum Opinion by Justice Bailey.  The attorney listed for the City is James T. Jeffrey, Jr.  The attorneys listed for Wernert are Robert J. Wiley and Eric P. Dama.

Sheriff’s deputy unable to sue for TCHRA, Whistleblower Act, and collective bargaining claims says Beaumont Court of Appeals


Jefferson County, Texas v. Cherisse Jackson, 09-17-00197-CV (Tex. App. – Beaumont, July 26, 2018).

This is an interlocutory appeal from the denial of a plea to the jurisdiction in an employment suit where the Beaumont Court of Appeals reversed and dismissed the Plaintiff’s claims.

Jackson sued the County alleging the sheriff and Deputy Werner with IA, discriminated and retaliated against her after she failed to cooperate in an investigation against another county employee, April Swain. Werner was investigating whether Swain and an inmate had been involved in a sexual encounter at the jail in 2014. Jackson claimed that Deputy Werner approached her to determine whether Jackson had witnessed the alleged encounter. When she told Werner she did not see the incident, Werner allegedly then asked for a written statement claiming she had while viewing a security monitor. Jackson refused and asserts she was later demoted, then not given a lieutenant’s position. Jackson later filed an EEOC complaint asserting retaliation and discrimination for failing to give the statement in violation of the Texas Commission on Human Rights Act (“TCHRA”). Six days after Jackson filed her EEOC claim, she sued the County under the Texas Whistleblower Act. The County filed a plea to the jurisdiction which the trial court denied. The County appealed.

The County asserts Jackson failed to establish a causal connection between the failure to cooperate and the adverse actions. It asserts Jackson was demoted following a Disciplinary Review Board hearing, which found that in May 2015, Jackson engaged in insubordinate conduct toward Lieutenant Hawkins, a superior officer. The court held the documents attached to the County’s plea support the County’s allegation that it demoted Jackson because Lieutenant Hawkins filed a grievance against Jackson that a Disciplinary Review Board determined had merit. The investigation and the disciplinary proceedings involving Jackson consumed nearly the entirety of the six-month period during which Jackson was eligible to be considered for a promotion to lieutenant. Once produced, the burden shifted to Jackson to rebut with evidence of pretext, which she was unable to do. Under the TCHRA, Jackson asserts she participated in an investigation, so the anti-retaliation provisions apply.  However, under the TCHRA exhaustion of remedies must occur before a trial court can acquire jurisdiction over a party’s TCHRA claims. The court held Jackson exhausted her administrative remedies only for two of her claims, that the County demoted her then refused to promote her. But she failed to establish a causal connection. Further, as to Jackson’s Texas Constitution claims, none of the evidence the parties asked the trial court to consider established that Jackson had been treated any differently than other, similarly situated, employees. The collective bargaining agreement did not provide a protected property interest in rank. Additionally, any “free speech” claims she has brought relate only to her internal communications as part of her job and are not protected. Finally, since Jackson failed to follow the mandatory arbitration provision of the collective bargaining agreement, she cannot sue for breach.  As a result, the plea should have been granted.

If you would like to read this opinion click here. Panel consists of Chief Justice McKeithen, Justice Horton and Justice Johnson. Opinion by Justice Horton. The attorneys listed for the County are          Kathleen M. Kennedy and Quentin D. Price.  The attorney listed for Jackson is Laurence Watts

Employee failed to establish valid comparators in equal protection/employment discrimination case, so individuals entitled to qualified immunity says 5th Circuit

Mitchell v. Mills No. 17-40737 (5th Cir. July 13, 2018)

This is an equal protection in employment case where the 5th Circuit held the individual defendant mayors were entitled to qualified immunity.

Mills and Chartier were both mayors at different times during Mitchell’s employment by the City. Mitchell is an African-American man in the Public Works Department (“PWD”). Mitchell alleged the defendants paid him less than two comparable white coworkers.  Mitchell’s comparators are Davlin, who is a Street Superintendent and Heard, who was Davlin’s predecessor. Both comparators shared some overlapping duties with Mitchell, but they also had additional duties and skills including experience in operating street-related heavy equipment, including a motor grader. Mills and Chartier moved for summary judgment on the basis of qualified immunity, which the trial court denied. They filed this interlocutory appeal.

Mitchell bears the burden to overcome qualified immunity. Mitchell may not rest on mere allegations or unsubstantiated assertions but must point to specific evidence in the record demonstrating a material fact issue.  In order to establish a violation of the Equal Protection Clause in the employment context, a plaintiff must prove a racially discriminatory purpose or motive.  As part of his prima facie case of wage discrimination, Mitchell “must show that he was a member of a protected class and that he was paid less than a non-member for work requiring substantially the same responsibility.”  His circumstances must be “nearly identical” to those of a better paid employee. Given the undisputed facts, Davlin and Heard are not nearly identical comparators. They worked in the street department and Mitchell in the water department. Streets required specialized skills which were not required for Mitchell’s job. It is undisputed that Mitchell possessed none of these skills and that such skills and responsibilities were not required for his position. In sum, Mitchell failed to carry his burden to overcome the defendants’ claim of qualified immunity. The summary judgment should have been granted.

If you would like to read this opinion, click here. Panel consists of Justices JOLLY, SOUTHWICK, and WILLETT. Opinion by Justice Jolly. Attorney listed for Defendants is Darren Keith Coleman.  The attorney listed for Mitchell is Dorian Vandenberg-Rodes.

Texas Supreme Court holds standards in same-sex discrimination cases are distinctly different than opposite-sex standards


Alamo Heights Independent School District v Catherine Clark, 16-0244, — S.W.3rd – (Tex. April 6, 2018).

This is a workplace same-sex discrimination, harassment and retaliation case where the Texas Supreme Court held that while the actions complained of were vulgar, they were not motivated by an illegal purpose. Warning, this is a 66-page majority opinion. So, the summary is a bit long.

The Alamo Heights Independent School District (“AHISD”) employed Catherine Clark as a coach.  Clark asserts her fellow female coach, Monterrubio, began sexually harassing her by making continuous comments about her body. Clark filed a charge of discrimination with the EEOC.  The principal placed Clark on an intervention plan. Monterrubio was transferred to another campus. However, Clark was ultimately terminated and filed suit. AHISD filed a plea to the jurisdiction which was denied. At the intermediate court of appeals, the panel held the high frequency of the non-severe comments nevertheless created a hostile environment centered around Clark’s gender and affirmed. Summary found here. The Texas Supreme Court granted review.

The facts take up a large section of the opinion. However, the key factual points of note are that Monterrubio would often comment about Clark’s boobs and appearance. Moterrubio would also comment about her own sex life to male and female employees, including sexual escapades involving three men in three nights. She would send vulgar cartoons intended to be humorous.  The Court noted the multitude of other events were not sexual in nature, but were merely rude or crass. Monterrubio’s behavior was the same whether it was addressed to a male, female, parent, teach or student. AHISD investigated Clark’s complaints each time, either at the campus level or district level. At one point the district did transfer Monterrubio to a different campus. However, Clark continued to have personality conflicts with other employees and her performance was continuously documented as being low. AHISD eventually terminated Clark.

The Court went through a very detailed analysis of same-sex harassment standards under Title VII and the Texas Commission on Human Rights Act (“TCHRA”). Citing the seminal case of Oncale v. Sundowner Offshore Services, Inc., the U.S. Supreme Court held Title VII’s protection against workplace discrimination “because of . . . sex” applies to harassment between members of the same gender. The Court recognized same-sex discrimination cases are more complicated because of their nature. In addition to sexual desire, the Court noted a same-sex case can be established by showing general hostility to a particular gender in the workplace or direct comparative evidence of treatment of both sexes. However, all of the methods require conduct to have more than offensive sexual connotations, but to be discriminatory because of the gender.

The Court stressed and restressed that the context of the workplace and the individual acts is critical to an analysis of the sexual desire method. Clark never alleged, and no evidence established, Monterrubio was homosexual and none of the contexts demonstrate any sexual desire towards Clark, so the sexual desire method was disposed of. Next the Court noted there was no evidence of a general hostility towards women. None of the record “even hints” that Monterrubio’s behavior, characterized as mistreatment of men and women alike, evinces hostility towards women in the workplace. Finally, the Court noted there was no evidence of a comparative discrimination. The Court held comments about gender-specific anatomy, alone, does not create an inference of harassment.  Clark made over 100 wide ranging complaints about Monterrubio and only a handful were about gender-specific anatomy. Focusing “only on gender-specific anatomy and ignoring motivation is legally unsound and is a misreading of Oncale.” Regardless of how it might apply in opposite-sex cases, a standard that considers only the sex-specific nature of harassing conduct without regard to motivation is clearly wrong in same-sex cases.  Motivation, informed by context, is the essential inquiry. Under the retaliation claim, the Court held that permitting a retaliation case, predicated on a but-for analysis, to proceed to trial when the prima facie case has been rebutted and no fact issue on causation exists “defies logic.”  To qualify as a protected activity, complaining of harassment is not enough. The complainer must show some indication gender is the motive.  Therefore, none of Clark’s internal complaints constitute protected activity. However, the EEOC complaint does qualify as protected. The TCHRA does not protect employees from all forms of retaliation, only those actions which are materially adverse. The only actions taken against Clark which qualified was placing her on an intervention plan and the eventual termination. However, Clark failed to establish causal link between either of these actions and her EEOC complaint. Eight months elapsed between the EEO charge and recommendation for termination. Such is too long in this situation. Further, nothing shows the stated reasons for Clark’s termination were false. It is undisputed Clark failed to follow lesson plans, failed to maintain student grades properly and had low performance reviews. An employer is not forbidden from addressing performance issues involving employees who have engaged in protected activity, including following through on known pre-existing issues. As the jurisdictional analysis for the plea requires a full analysis of the factual issues, and Clark failed to carry her burden, the plea should have been granted.

The Majority’s opinion spends the last several pages responding to the dissent’s analysis (found here), calling the legal theories flawed and the listing of facts a distortion. The Court held the purported harassment is “repugnant and unacceptable in a civilized society. But we cannot step beyond the words of the statute…”  Plaintiff’s claims were therefore dismissed.

If you would like to read this opinion click here. JUSTICE GUZMAN delivered the opinion of the Court, joined by CHIEF JUSTICE HECHT, JUSTICE GREEN, JUSTICE JOHNSON, JUSTICE DEVINE, and JUSTICE BROWN. JUSTICE BOYD filed a dissenting opinion, in which JUSTICE LEHRMANN joined. JUSTICE BLACK did not participate.

Ex-employee failed to allege she was qualified for her position but court held she was entitled to amend in discrimination/retaliation case


City of Granbury v. Christine Willsey 02-17-00343-CV (Tex. .App. — Fort Worth, March 15, 2018)

This is an age/sex discrimination and retaliation case where the Fort Worth Court of Appeals affirmed-in-part and reversed-in-part the order denying the City’s plea to the jurisdiction.

Willsey worked for the City for over seventeen years, including nine years as a police officer and almost nine years as a public works inspector.  In 2016 the City eliminated her inspector position but reassigned her to be a permit clerk. Three days after she inquired as to how long before her retirement would vest, the City terminated her. The City asserts the inspector as well as the permit clerk position were eliminated and absorbed into the existing number of employees. The City filed a combined answer/plea to the jurisdiction. The trial court denied the plea. The City appealed.

The court went through a detailed point-by-point prima facie analysis. To be successful in an age discrimination claim a plaintiff must plead that she was either (1) replaced by someone outside the protected class, (2) replaced by someone younger, or (3) otherwise discharged because of her age. Willsey did not plea or establish she was qualified for the inspector position, only that she was eliminated. Simply because she was an inspector for nine years does not equate to her continued qualifications for the position. The same goes for her sex discrimination claims. Under the retaliation claims, Willsey asserts that the City pursued her after her termination by “making up false accusations against her and seeking criminal charges against her” for stealing records, interfering with her future employment. However, the court responded “[e]ven construing Willsey’s pleadings liberally in her favor, we are left to guess what the protected activity is that Willsey participated in prior to her termination that the final decisionmaker for the City was aware of and the causal link between that protected activity and her termination.” However, the court then analyzed whether the lack of pleading sufficiency could be cured by allowing her the ability to amend. Because this is a reduction-in-force case rather than a true replacement case, and the City’s arguments focus on a replacement case, it has not established an amendment would be futile. As a result, it remanded the case to allow the trial court to allow an amendment after some level of discovery has occurred.

If you would like to read this opinion click here. Panel consists of Justice Walker, Justice Kerr and Justice Pittman. The attorney listed for Willsey is Christopher S. Medlenka. The attorney listed for the County are Fredrick ‘Fritz’ Quast.

14th Court of Appeals holds employee does not have to file TWC charge of retaliation if the employee asserts retaliation for filing discrimination charge


Metropolitan Transit Authority of Harris County, Texas v. Viola M. Douglas 14-17-00176-CV (Tex. App— Houston [14th Dist.] February 27, 2018)

This is an employment discrimination and retaliation case where the 14th District Court of Appeals affirmed the denial of the employer’s plea to the jurisdiction.

Douglas is a lieutenant with the Metro Police Department (“Metro”). She applied for one of two available captain positions. Metro had procedures to use an outside agency to do competency assessments of candidates, but the Chief, at the time, decided to use a five-person panel of Metro employees. The panel scored Douglas the highest of the candidates. The Chief then interviewed the candidates and promoted both male candidates. Douglas was not promoted. Douglas filed a discrimination charge with the Texas Workforce Commission Civil Rights Division (“TWC”) but after 180 days without a right-to-sue letter, Douglas filed suit. After her charge was filed, Douglas asserts the incoming Chief (who was a female) had her performance review lowered. So, she added a retaliation charge to the suit. Metro filed its plea to the jurisdiction, which the trial court denied.

An appeal is moot when there is no longer a live controversy between the parties and appellate relief would be futile. Live controversies exist so the claims are not moot. An adverse employment action in the context of a retaliation claim is not limited to conduct that constitutes ultimate employment decisions. Actionable conduct includes any actions that a reasonable employee would find materially adverse. A downgrade of an employee’s performance evaluation may constitute an adverse employment action if it might have dissuaded a reasonable worker from making or supporting a charge of discrimination. As a result, Douglas jurisdictionally asserted an adverse employment action. Douglas argues she was not required to exhaust her administrative remedies because the trial court has ancillary jurisdiction over retaliation claims that grow out of an earlier discrimination charge. The court analyzed the different U.S. Supreme Court opinions on this type of argument. Ultimately, it held that a plaintiff cannot rely upon a continuing violation theory for retaliatory conduct which occurred prior to the original charge, but when the retaliatory conduct is allegedly in response to the original charge (i.e. retaliation grows out of a discrimination charge filed), the plaintiff need not exhaust a new set of administrative remedies. As a result, the trial court properly denied the plea.

If you would like to read this opinion click here. Panel consists of Justice Jamison, Busby and Donovan. Justice Jamison delivered the opinion of the court. The attorney listed for Douglas is Linda D. King. The attorney listed for Metropolitan Transit Authority is Daniel Nicholas Ramirez and Hao Pham Le.

Austin Court of Appeals holds ex-professor properly alleged disability and age discrimination claim even where there is no legal obligation to renew a term contract



Texas State University v. Dr. Kathleen Quinn 03-16-00548-CV (Tex.App—— Austin, Texas November 29,2017)

This is an interlocutory appeal from the denial of a plea to the jurisdiction in an employment-discrimination dispute where the Austin Court of Appeals affirmed the denial.

Quinn accepted an “emergency hire”  professor position for the University’s doctoral nursing program when it was just starting the program. When the University made the position permanent, Quinn applied.   She was  had progressive and severe nerve damage to her hands and feet. The pain in her feet made walking difficult. She requested an accommodation while in the temporary position, but nothing was done. The University did not hire Quinn and did not renew her contract the following year. She sued the University claiming disability and age discrimination and retaliation. She cast her case against the University as one coming within the terms of the Texas Labor Code section 21.051. The University filed a plea to the jurisdiction, which was denied. It appealed.

The court held “[c]ontrary to the University’s argument, Quinn discharged her pleading requirement in her amended petition by asserting in minute detail the facts supporting her discrimination and retaliation claims. [she] filed a lengthy fact-studded response in which she marshaled evidence in support of each contested element of her discrimination and retaliation claims.”  Quinn brought forward evidence that she was qualified for the job she had and for the post she sought. Apparently satisfied with her qualifications, the University kept her on for two years in “emergency hire” status. The University argued because there is no legal obligation to renew a term contract, as a matter of law no “adverse action” can occur.  However, the court declined to make that holding as a bright line rule. Quinn established she was replaced by a non-disabled, younger female. She also complained to her employers about the failure to accommodate her disability, which can form the basis of her retaliation claim. As a result, the plea was properly denied.

If you want to read the opinion, click here. The panel consists of Justices Puryear, Field and Shannon. Justice Shannon delivered opinion of the court. To see the attorneys listed for the Appellant and Appellee’s click here.

U.S. Supreme Court holds statutory deadlines are jurisdictional, court rule deadlines are not and may be waived


Hamer v Neighborhood Housing Services of Chicago, et al, No. 16-658, Slip. Op.,  2017 WL 5160782 — U.S.–,  (November 8, 2017).

This is an employment dispute, but the key point before the U.S. Supreme Court was the jurisdictional aspects of the timing for certain deadlines.

Hamer filed an age discrimination suit against her former employer, the Neighborhood Housing Services of Chicago (“NHSC”).  The trial court granted NHSC’s motion for summary judgment and entered final judgment on September 14, 2015.  Hamer’s notice of appeal was due, pursuant to the Federal Rules of Appellate Procedure, by October 14, 2015. Hamer’s attorneys filed for a 60 day extension but also filed for withdrawal which the trial court granted.  Hamer filed an appeal on December 11, 2015, which should have been timely under the extension. However, the Court of Appeals, on its own, questioned its jurisdiction and timeliness of the appeal. At this point the NHSC chimed in with an objection to the timeliness of the notice of appeal, arguing the court could not extend jurisdiction as such extensions, by Rule, were applicable for only 30 days, not 60. Concluding that it lacked jurisdiction to reach the merits, the Court of Appeals dismissed Hamer’s appeal.  Hamer appealed and the U.S. Supreme Court granted review.

Section 2107 of Title 28 of the U. S. Code,  allowed extensions of the time to file a notice of appeal, not exceeding 30 days, for the lack of notice of the entry of judgment.  The U.S. Code does not address the situation, as here, a party has notice of the judgment.  But Federal Rule of Appellate Procedure 4(a)(5)(C) does prescribe a limit of 30 days.  Rule 4(a)(5)(C) limits extensions of time to file a notice of appeal in all circumstances, not just in cases in which the prospective appellant lacks notice of the entry of judgment.  However, the Court of Appeals erred in applying the Rule as  a jurisdictional bar equal to that of the statute. Only Congress may determine a lower federal court’s subject-matter jurisdiction. Failure to comply with a statutory jurisdictional time prescription, deprives a court of adjudicatory authority over the case, necessitating dismissal. Conversely, claim-processing rules are less stern. If properly invoked, mandatory claim-processing rules must be enforced, but they may be waived or forfeited and do not implicate subject-matter jurisdiction.  Stated another way, if the time limitation is in a statute, it can be jurisdictional. A time limit prescribed only in a court-made rule is not jurisdictional. Since NHSC did not object to the extensions when made, it waived the ability to complain about the extensions on appeal.

If you would like to read this opinion click here. Justice Ginsburg delivered the opinion of the Court.

Two year SOL is independent of 60-day deadline to sue after receipt of right-to-sue letter says 14th Court of Appeals

The University of Texas – MD Anderson Cancer Center v. April Porter 14-17-00107-CV (Tex.app—- Houston, Texas November 2, 2017)

In this case, the 14th Court of Appeals reversed the denial order and allowed MD Anderson to utilize a Rule 91a motion to dispose of a suit filed outside the statute of limitations.

Porter filed suit against MD Anderson for race and gender discrimination and for retaliation in employment. MD Anderson filed a motion to dismiss under Rule 91a on the basis that its immunity was not waived because Porter failed to file suit within the two-year statute of limitations. The trial court denied the motion and MD Anderson appealed.

Rule 91a allows a party to move to dismiss a cause of action on the ground that it has no basis in law or in fact. See Tex. R. Civ. P. 91a. The timely filing of an employment lawsuit is a statutory prerequisite to filing suit and as such is jurisdictional when the defendant is a governmental entity. The limitations period for the plead claims is two years. Rule 91a motions to dismiss are analogous to pleas to the jurisdiction, requiring a court to determine whether the pleader has alleged facts demonstrating jurisdiction.  Porter’s pleadings fail to state any dates applicable to establish a timely suit. However, MD Anderson’s motion contained the TWC charge information, noting the complaint was filed August 20, 2013. Porter filed suit on October 10, 2016, more than two years after her complaint was filed.  Porter counters that she timely filed her TWC charge, then filed suit within 60 days of receiving her right to sue letter. Therefore the statute of limitations is tolled. However, the court held the 60-day filing date is independent of the two-year statute-of-limitations. Accordingly, the two-year statute of limitations barred Porter’s claims.

If you want to read this opinion, click here. The panel consists of Justice Jamison Justices, Busby, and Donovan. Justice Donovan delivered the opinion of the court. To see the attorneys listed for the Appellant and Appellee’s click here.


Notice of non-renewal letter triggered date for EEOC complaint filing, not the date internal grievance was completed says San Antonio Court of Appeals


Alamo Community College District d/b/a Alamo Colleges v. Douglas Ryan 04-17-00196-CV (Tex.App– San Antonio, Texas November 1, 2017)

This is an interlocutory appeal in an employment discrimination case where the San Antonio  Court of Appeals reversed the denial of the District’s jurisdictional challenge and dismissed the Plaintiff’s claims.

Ryan was a full-time probationary faculty member at Northwest Vista College, which is part of the Alamo Community College District (“District”). In July 2012 Ryan was informed his contract would not be renewed based on performance and disciplinary issues. However, the letter stated Ryan was being offered a “terminal year contract” for the 2012-2013 academic year. The letter advised that if Ryan accepted the terminal year contract his employment would cease Spring of 2013. Ryan accepted the terminal year but appealed the non-renewal. He lost the administrative appeal and filed a complaint with the EEOC on January 31, 2013, then sued after receiving his right-to-sue letter. The District filed a summary judgment asserting Ryan failed to file an EEOC charge of discrimination within 180 days of the adverse employment action, specifically the July 2012 notice of non-renewal. Ryan asserted the date of adverse action was the loss of his administrative appeal in September 2012. The order was granted-in-part and denied-in-part. The District filed this appeal.

Ryan asserted the June 28, 2012, letter was merely a “proposal” or a “notice of an intended adverse action.” Ryan argued because he grieved the notice to the chancellor, “[t]he action did not become an adverse action until the Chancellor denied his grievance on September 27, 2012.” An unlawful employment practice occurs “when a discriminatory employment decision is made—not when the effects of that decision become manifest in later events.” The “180-day limitations period in the TCHRA begins ‘when the employee is informed of the allegedly discriminatory employment decision.’” There was nothing tentative or preliminary about the language in the June 2012 letter. The grievance procedure, by its nature, is a remedy for a prior decision, not an opportunity to influence that decision before it is made. The trial court denied the District’s motion for summary judgment as to Ryan’s contention that the District prevented him from being employed by any other college in the District. Ryan argues this claim did not accrue when he received notice of the employment decision and the dean acted in an ultra vires manner by including it in the letter. However, the dean simply notified Ryan of the District Board of Trustees’ policy regarding ineligibility for rehire. Thus, Ryan’s ineligibility for an adjunct position throughout the District was a decision made by the Board of Trustees and was an automatic consequence of the non-renewal. As a result, the deadline was the same date as the non-renewal. The record conclusively established the trial court did not have jurisdiction and the motion should have been granted in full.

If you want to read this opinion, click here. The panel consists of Justice Barnard Justices, Martinez, and Chapa. Justice Luz Elena D. Chapa delivered the opinion of the court. To see the attorneys listed for the Appellant and Appellee’s click here.

TxDOT former employee failed to establish disability discrimination or retaliation claims


Melissa K. Ferguson v. Texas Department of Transportation, 11-15-00110-CV (Tex. App. – Eastland, August 31, 2017).

This is an employment disability discrimination and retaliation case where the Eastland Court of Appeals affirmed a judgment in favor of the employer.

Ferguson was employed with the Texas Department of Transportation (“TxDOT”) as an account specialist at the time she was terminated. Prior to termination, Ferguson was diagnosed with severe clinical depression and requested an accommodation via transfer away from her current supervisors. Ferguson’s job duties included paying vendor invoices and providing customer service.  Ferguson sued alleging disability discrimination and a failure to accommodate. TxDOT filed a plea to the jurisdiction and a combined traditional and no-evidence motion for summary judgment. After the trial judge recused himself, a retired judge presided over the hearing and granted TxDOT’s summary judgments. Ferguson appealed.

The record reflected a tense working relationship between Ferguson and her supervisors for almost a year. HR warned Ferguson she needed to improve communications with her supervisors, which did not appear to occur.  The record also reflects Ferguson failed to timely pay certain invoices resulting in contractual consequences to TxDOT and other job-related performance issues. The termination occurred in November of 2012. While Ferguson’s discrimination and retaliation claims were timely as to her termination, the alleged failure to accommodate occurred in 2011 and early 2012. As a result, the 180-day jurisdictional window to file a failure to accommodate complaint had passed and no indications exist it was a continuing violation. As a result, jurisdiction only existed for the termination. As to the termination, even if the court assumed Ferguson presented a prima facie case, she failed to create a fact issue as to pretext. Ferguson admitted that the failure to pay other fuel invoices was because she either “forgot” to do them or was “not sure” why they had not been paid. Ferguson acknowledged that she had communication issues with her supervisors. Further, she failed to show a causal link between protected conduct and the adverse employment action taken by TXDOT.  As a result, summary judgment was proper. Ferguson failed to object to the assigned judge, in writing within seven days and therefore waived the objection on appeal. Judgment affirmed.

If you would like to read this opinion click here. Panel includes Chief Justice Wright, Justice Willson and Justice Bailey. Memorandum Opinion by Justice Willson.  The attorney listed for TxDOT is Susan Desmarais Bonnen.  The attorneys listed for Ferguson are Kolter McKenzie and John E. Wall, Jr.

Since manager’s position was reorganized into director position, former manager was not “replaced” with someone outside of her protected class


DISD reorganized the CAFD, renamed it the Finance and Accounting Support for Campuses Department (the FASCD), and decided the new department should be led by a Director, a position one managerial level higher than Manager. The DISD hired Donna Zemanek, an Anglo woman, to be the Director and terminated Allen by the elimination of her position.  Allen sued for race discrimination and other claims.  After three pleas to the jurisdiction, only the race claim remained. The trial court denied the final plea regarding race discrimination and the DISD appealed.

The court went through an employment history of Allen’s supervisors (their race), the people she supervised (their race) and different performance issues at different times with Allen.  She asserted a specific Director (before he became CFO) made a comment about another department as “wannabees” which she felt was discriminatory.  However, the court held Allen failed to establish the “wannabe” comment was anything other than a “stray remark.” There is no evidence the comment was related to Allen’s protected class. Rather, the Director addressed the comment at the W/MBE Department, which consisted of one African- American woman, one Hispanic woman, and one Hispanic man and was a play on words from the anacronym. There is no evidence the comment related to the decision to terminate Allen. Further, the new Director of the FASCD did not “replace” Allen in her position. The job duties and qualifies for the Director position and Allen’s Manager position were distinctly and rather dramatically different. This is consistent with the reorganization goals. The evidence established that all jobs in the CAFD, including Allen’s position as Manager, were eliminated when the CAFD was reorganized into the newly-created FASCD. The FASCD had much broader responsibilities than the CAFD, and all positions in the CAFD were “upgraded” to higher level positions.  All employees of the CAFD were invited to apply. Allen did not apply for the Director of the FASCD position, which would have been a promotion, or for any other position in the FASCD. The other employees of the CAFD, all of whom were African-American women, were hired back. Further, there is no evidence Allen was treated less favorable than any employee who was similarly situated. Because Allen failed to create a fact issue, the plea should have been granted.

If you would like to read this opinion click here. The Panel includes Justice Lang- Miers , Justice Stoddart and Retired Justice O’Neill. Justice O’Neill delivered the opinion of the court. Attorneys’ for the Appellant: Holly Mclntush, Carlos G. Lopez, and Kathryn E. Long. Attorneys for the Appellee: Giana Ortiz and Daniel A. Ortiz.

College’s evidence established employee was incompetent for her job; therefore not qualified; therefore could not make a prime facie case for discrimination


Darla Lackey v. Lone Star College System, 09-15-003999-CV (Tex. App— Beaumont, October 20, 2016)
This is an employment discrimination case where the Beaumont Court of Appeals affirmed the granting of the College’s plea to the jurisdiction.

Lackey is a forty-three-year-old Caucasian female who was employed by the Lone Star College System (“LSCS”) as a human resource manager.” Lackey pleaded that a shooting and then a stabbing occurred at LSCS’s campuses and afterwards LSCS opened its employee assistance program (“EAP”) to all employees, although the EAP had previously only been available for full-time employees. When an adjunct professor asserted he was suffering from post-traumatic stress disorder and wanted to use the EAP, Lackely allowed it. She asserted she double-checked the policy change before offering the EAP. LSCS leadership asserted she did not follow the policy correctly and terminated her. Lackely asserts a non-Caucasian Hispanic employee also violated the same policy but was not terminated. Lackey asserted causes of action for disparate treatment and replacement under the Texas Commission on Human Rights Act (“TCHRA”). LSCS filed a plea to the jurisdiction which the trial court granted. Lackey appealed.

A Plaintiff must make a prima facie case showing a waiver of immunity exists. The waiver of governmental immunity contained in the TCHRA only applies if the plaintiff alleges a violation within the scope of the statute. For Lackey to establish a prima facie case as to both of the causes of action (discrimination and discriminatory replacement) she must first establish that she was qualified for her position. LSCS attached a great deal of evidence indicated Lackely was incompetent to perform her position and, in one instance, causing LSCS to become $4 million behind in employee retirement payments. After analyzing the various collection of evidence and instances of incompetence and reviewing Lackey’s responses, the court concluded “LSCS’s evidence demonstrated that Lackey was not performing her job at a level that met LSCS’s legitimate expectations, and Lackey was therefore not qualified for her job.” Because Lackey did not establish that she was qualified, she failed to demonstrate a prima facie case under the TCHRA; therefore, LSCS’s governmental immunity is not waived. The plea was properly granted.

If you would like to read this opinion click here. Panel:  Chief Justice McKeithen, Justice Kreger, and Justice Johnson. Chief Justice McKeithen delivered the opinion of the court. Attorney for the Lackey is listed as Ellen Sprovach. Attorney for LCSC is listed as Daniel Nicholas Ramirez.