Reversed and Remanded and Opinion filed November 6, 2014.




                                       In The

                     Fourteenth Court of Appeals

                               NO. 14-14-00214-CV

     UNIVERSITY OF TEXAS M.D. ANDERSON CANCER CENTER,
                          Appellant

                                         V.

                         NEVINE ELTONSY, Appellee

                    On Appeal from the 125th District Court
                            Harris County, Texas
                      Trial Court Cause No. 2012-69063

                                 OPINION


      In this interlocutory appeal from a workplace-discrimination case, we agree
with the University of Texas MD Anderson Cancer Center that the trial court erred
in denying its plea to the jurisdiction concerning its employee’s gender-
discrimination and sexual-harassment claims, and that its arguments regarding
retaliation are moot. We accordingly reverse the trial court’s order and remand the
case for further proceedings consistent with this opinion.
                  I. FACTUAL AND PROCEDURAL BACKGROUND

      Appellee Nevine Eltonsy was hired by the University of Texas MD
Anderson Cancer Center (“MD Anderson”) in 2009 and terminated in March 2012.
She filed a charge of discrimination with the Equal Employment Opportunity
Commission (“EEOC”) on March 23, 2012, alleging that she was discharged based
on her gender because she complained that males throughout the University of
Texas System holding the same position that she held were paid more. She further
asserted that she had begun making these complaints in 2009.

      After receiving notice of her right to file a civil action, Eltonsy sued her
employer under the Texas Commission on Human Rights Act. She alleged that
(a) MD Anderson engaged in pay discrimination based on her gender; (b) it
terminated her employment based on her gender; (c) it terminated her employment
in retaliation for her complaints of gender-based pay discrimination; and (d) her
supervisors sexually harassed her, creating a hostile work environment that altered
a term, condition, or privilege of her employment. MD Anderson filed a plea to
the jurisdiction asserting sovereign immunity to Eltonsy’s claims.          Eltonsy
responded with evidence that she argued supported the existence of jurisdiction,
and MD Anderson filed a reply. After the hearing but before the trial court ruled,
Eltonsy amended her petition, and MD Anderson accordingly amended its plea to
the jurisdiction. Once again, Eltonsy responded with evidence for the trial court to
consider in determining whether it has jurisdiction over her claims. After an oral
hearing, the trial court denied the plea to the jurisdiction.       MD Anderson
challenges that ruling.

                            II. STANDARD OF REVIEW

      The University of Texas MD Anderson Cancer Center is a governmental
unit generally entitled to sovereign immunity. See Hampton v. Univ. of Tex.-M.D.
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Anderson Cancer Ctr., 6 S.W.3d 627, 628 (Tex. App.—Houston [1st Dist.] 1999,
no pet.). Sovereign immunity bars suits against the state and its entities unless the
state waives immunity. Tex. Adjutant Gen.’s Office v. Ngakoue, 408 S.W.3d 350,
353 (Tex. 2013). One such waiver can be found in Chapter 21 of the Texas Labor
Code, commonly referred to as the Texas Commission on Human Rights Act (“the
TCHRA”); Mission Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653, 660
(Tex. 2008) (“Garcia I”) (holding that “the TCHRA clearly and unambiguously
waives immunity”).1 The TCHRA provides that an employer may not, on the basis
of “race, color, disability, sex, national origin, or age,” discriminate in any manner
against an employee in connection with compensation or the terms, conditions, or
privileges of employment. See TEX. LAB. CODE § 21.051 (West 2006).

       The TCHRA’s waiver of immunity applies only if the plaintiff actually
alleges a violation within the scope of the statute. See Mission Consol. Indep. Sch.
Dist. v. Garcia, 372 S.W.3d 629, 636 (Tex. 2012) (“Garcia II”). If the plaintiff
does not plead facts sufficient to state a prima facie case of discrimination under
the TCHRA, the governmental unit may challenge the pleadings with a plea to the
jurisdiction. See id. at 632. Whether the pleadings contain factual allegations
affirmatively demonstrating the trial court’s subject-matter jurisdiction is a
question of law that we review de novo. Univ. of Tex. Med. Branch at Galveston v.
Petteway, 373 S.W.3d 785, 789 (Tex. App.—Houston [14th Dist.] 2012, no pet.)
(citing Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex.
2004)). We determine whether the plaintiff’s pleadings, construed in the plaintiff’s
favor, allege facts sufficient to affirmatively demonstrate the trial court’s


       1
          See Prairie View A&M Univ. v. Chatha, 381 S.W.3d 500, 502 n.1 (Tex. 2012)
(explaining that although courts continue to refer to Chapter 21 of the Texas Labor Code as the
Texas Commission on Human Rights Act, the Commission on Human Rights has been replaced
by the civil-rights division of the Texas Workforce Commission).

                                              3
jurisdiction to hear the case. Hearts Bluff Game Ranch, Inc. v. State, 381 S.W.3d
468, 476 (Tex. 2012). Unless the pleadings affirmatively demonstrate the absence
of jurisdiction, a plaintiff must be afforded a reasonable opportunity to amend if
the pleading defect can be cured. Tex. A&M Univ. Sys. v. Koseoglu, 233 S.W.3d
835, 839–40 (Tex. 2007). Incurably defective claims, however, must be dismissed
with prejudice. See id. at 846.

      If the plaintiff pleaded facts making out a prima facie case and the
governmental unit instead challenges the existence of jurisdictional facts, we
consider the relevant evidence submitted. Miranda, 133 S.W.3d at 227–28. If the
governmental unit’s evidence shows that the trial court lacks jurisdiction, the
plaintiff must show that there is a disputed material fact on the issue. See id. at
228. We review the trial court’s ruling, taking as true all evidence favoring the
plaintiff, indulging every reasonable inference and resolving any doubts in her
favor. See id. If the evidence fails to raise a genuine issue of material fact on the
existence of jurisdiction, the claim must be dismissed with prejudice. See Harris
County v. Sykes, 136 S.W.3d 635, 640–41 (Tex. 2004).

             III. ALLEGED PAY DISCRIMINATION BASED ON GENDER

      Before a plaintiff can maintain a suit for employment discrimination, the
plaintiff first must file a complaint of employment discrimination with the Texas
Workforce Commission’s civil rights division, or alternatively, with the EEOC.
Prairie View A&M Univ. v. Chatha, 381 S.W.3d 500, 503 (Tex. 2012). Although
the complaint can be filed with either agency, it must be filed within 180 days
“after the alleged unlawful employment practice occurred.” TEX. LAB. CODE ANN.
§ 21.202 (West 2006). This statutory prerequisite to suit is itself a jurisdictional
requirement. Chatha, 381 S.W.3d at 510 & n.15 (citing TEX. GOV’T CODE ANN.
§ 311.034 (West 2013)).

                                         4
      MD Anderson asserted in its plea to the jurisdiction that Eltonsy’s pay-
discrimination claim is untimely. Eltonsy alleged in her pleadings that she was
informed of the pay-setting decision on February 2, 2009, and MD Anderson
asserted in its plea to the jurisdiction that Eltonsy did not file a charge of
discrimination until March 23, 2012. MD Anderson argues that Eltonsy could not
maintain her claim for pay discrimination because she admitted that she was
informed of the pay-setting decision more than 180 days before she filed her
complaint. As part of the jurisdictional evidence, both MD Anderson and Eltonsy
produced copies of Eltonsy’s EEOC complaint dated March 23, 2012. Moreover,
Eltonsy admitted that “[t]he 180 day filing period was September 25, 2011 through
March 23, 2012.” She argues that her pay-discrimination claim nevertheless is
timely because she filed her EEOC complaint three days after she was terminated
for complaining to her employer about the discrimination. Thus, the relevant facts
are undisputed, and the legal question presented is whether the 180-day deadline
began to run when Eltonsy was told of the pay-setting decision in February 2009 or
when she was terminated in March 2012.

      In pay-discrimination claims, the 180-day deadline begins to run on the date
that the employee “is informed of the alleged discriminatory pay decision.” Id. at
510. As the Texas Supreme Court explained,

      In pay discrimination cases, the setting of an alleged discriminatory
      pay rate is a discrete act—that is, the only act taken with a
      discriminatory motive is the pay-setting decision. Subsequent
      paychecks containing an alleged discriminatory pay amount are
      merely consequences of past discrimination and do not constitute an
      unlawful employment practice under the TCHRA. Thus, an employee
      must file a complaint under the TCHRA within 180 days of the date
      she is informed of the alleged discriminatory pay decision.
Id. Because the undisputed facts conclusively establish that Eltonsy filed her
EEOC complaint more than 180 days after MD Anderson informed her of its pay-
                                         5
setting decision, the trial court erred in denying MD Anderson’s plea to the
jurisdiction as to Eltonsy’s claim of pay discrimination based on gender.

      Eltonsy argues that because she was terminated for complaining to her
employer about the pay discrimination less than 180 days before she filed a
complaint with the EEOC, her claim for gender discrimination is timely. But, as
explained further infra, that is not a claim of gender discrimination but instead is a
separate claim for retaliation.

                 IV. ALLEGED TERMINATION BASED ON GENDER

      MD Anderson also argues that Eltonsy failed to plead a prima facie case of
gender discrimination in connection with her termination. To prevail on a claim of
gender discrimination, the plaintiff must establish that she was (a) a member of a
class protected by the TCHRA, (b) qualified for her position, (c) subjected to an
adverse employment action, and (d) treated less favorably than similarly situated
individuals outside of the protected class. See Coll. of the Mainland v. Glover, 436
S.W.3d 384, 393 (Tex. App.—Houston [14th Dist.] 2014, pet. filed).                MD
Anderson argues that Eltonsy failed to allege that in terminating her employment,
MD Anderson treated her less favorably than similarly situated males. Eltonsy
treated this as a challenge both to the pleadings and to the jurisdictional evidence.

      As to the pleadings, Eltonsy argued that her allegations were sufficient
because her pleadings included the following language: “Defendant discriminated
against Plaintiff in violation of the [TCHRA] based upon Plaintiff’s sex. She
alleges that sex, was a motivating factor in Defendant’s decision to terminate her
employment.” This conclusory assertion, however, does not constitute a prima
facie case of gender discrimination. See Farrington v. Sysco Food Servs., Inc., 865
S.W.2d 247, 251 (Tex. App.—Houston [1st Dist.] 1993, writ denied) (stating that
subjective beliefs are insufficient to establish a prima facie case). Eltonsy also
                                          6
pointed out that she pleaded that MD Anderson treats similarly situated males and
females differently with regard to pay; however, there are no factual allegations
that MD Anderson treats similarly situated males and females differently with
regard to discipline or termination.

      Regarding the evidence, Eltonsy asserted that in her answers to MD
Anderson’s interrogatories, she listed the names and salaries of three male
employees who were paid more than she was paid for the same work.2 But such
material suffers from the same flaw that Eltonsy’s pleading does: it pertains to the
question of whether MD Anderson treated males and females differently when
making decisions about compensation, not about whether it treated them
differently when making decisions about discipline or termination.

      Eltonsy appears to be conflating a prima facie case of gender discrimination
with a prima facie case of retaliation, but the two are not the same. See ATI
Enters., Inc. v. Din, 413 S.W.3d 247, 252 (Tex. App.—Dallas 2013, no pet.)
(“Retaliation is a distinct theory of liability that is not encompassed by other
theories of discrimination.”); Davis v. Educ. Serv. Ctr., 62 S.W.3d 890, 894 (Tex.
App.—Texarkana 2001, no pet.) (“Retaliation is an independent violation of the
TCHRA . . . .”). A plaintiff makes out a prima facie case of retaliation by showing
that (a) she engaged in a protected activity, (b) an adverse employment action
occurred, and (c) there is a causal link between the protected activity and the
adverse action. Navy v. Coll. of the Mainland, 407 S.W.3d 893, 900 (Tex. App.—
Houston [14th Dist.] 2013, no pet.). Whereas a claim of gender discrimination
requires a showing that the plaintiff belongs to a protected class, a claim of
retaliation requires a showing that the plaintiff engaged in a protected activity.
Expressing opposition to a discriminatory practice is a protected activity. See TEX.

      2
          The answers themselves are not in the record.

                                                7
LAB. CODE ANN. § 21.055(1) (West 2006) (“An employer . . . commits an unlawful
employment practice if the employer . . . retaliates or discriminates against a
person who, under this chapter . . . opposes a discriminatory practice . . . .”); City
of Waco v. Lopez, 259 S.W.3d 147, 152 (Tex. 2008) (“[A]ctionable retaliation
exists when an employer makes an adverse employment decision against an
employee who voices opposition to conduct made unlawful under the [TCHRA],
regardless of whether the employee has already filed a formal complaint with the
Commission.”).       Eltonsy’s assertion that she was terminated because she
complained about a discriminatory practice is not in itself an allegation of gender
discrimination; it is an allegation of retaliation. See Berry v. Delta Airlines, Inc.,
260 F.3d 803, 809 (7th Cir. 2001) (“Holding otherwise would force us to conclude
that ‘every claim of retaliation for filing charges of discrimination would be a
claim of discrimination, even thought [sic] Title VII makes discrimination and
retaliation separate wrongs.’” (quoting Heuer v. Weil-McLain, 203 F.3d 1021,
1022–23 (7th Cir. 2000))), cited with approval in Gonzalez v. Champion Techs.,
Inc., 384 S.W.3d 462, 475–76 (Tex. App.—Houston [14th Dist.] 2012, no pet.).

      In sum, there are neither allegations nor evidence that in terminating
Eltonsy, MD Anderson treated Eltonsy less favorably than similarly situated males.
The trial court accordingly erred in failing to grant MD Anderson’s plea to the
jurisdiction as to this claim.

  V. RETALIATION CLAIMS BASED ON CONDUCT BEFORE SEPTEMBER 25, 2011

      MD Anderson’s only appellate argument concerning retaliation is that
retaliation claims “based on actions prior to September 25, 2011 do not fall within
the statutory waiver of sovereign immunity and must be dismissed as a matter of
law.” (emphasis added). Moreover, MD Anderson stated in its reply brief:

             In Appellee’s Brief, Appellee makes it clear that she is not
                                          8
       bringing any claim of retaliation for any action of Appellant other
       than her termination. If this is Appellee’s position, the Appellant’s
       Brief regarding retaliation claims before September 25, 2011 is
       moot.3
       We agree that Eltonsy conceded in her brief that “events occurring more
than 180 days before a former employee filed a charge of discrimination cannot be
the basis for legal redress in an action under the TCHRA.” She further stated that
her retaliation claim is based on events that occurred on February 2, 2012; March
9, 2012; March 12, 2012; and March 20, 2012. In light of these admissions, we
agree that this issue is moot. See Thomas v. Cook, 350 S.W.3d 382, 390 (Tex.
App.—Houston [14th Dist.] 2011, pet. denied) (“A case becomes moot when (1) it
appears that one seeks to obtain a judgment on some controversy, when in reality
none exists, or (2) when one seeks a judgment on some matter which, when
rendered for any reason, cannot have any practical legal effect on a then-existing
controversy.” (quoting Pantera Energy Co. v. R.R. Comm’n of Tex., 150 S.W.3d
466, 471 (Tex. App.—Austin 2004, no pet.) (op. on reh’g))). We therefore treat
this issue as withdrawn.

VI. ALLEGED SEXUAL HARASSMENT BASED ON HOSTILE WORK ENVIRONMENT

       MD Anderson argues that the trial court lacks jurisdiction over Eltonsy’s
sexual-harassment claim because, among other things, Eltonsy failed to exhaust
administrative remedies4 and failed to allege facts constituting a prima facie case.5

       3
           Emphasis added.
       4
          In a civil action under the TCHRA, the plaintiff “is limited to the complaints made in
the discrimination charge and factually related claims that could reasonably be expected to grow
out of the Commission’s investigation of the charge.” Thomas v. Clayton Williams Energy, Inc.,
2 S.W.3d 734, 738 (Tex. App.—Houston [14th Dist.] 1999, no pet.).
       5
         To prevail on a claim of sexual harassment based on a hostile work environment, the
claimant must show that (a) she was an employee who belongs to a protected class; (b) she was
subjected to unwelcome harassment; (c) the harassment was based on sex; (d) the harassment
affected a term, condition, or privilege of employment; and (e) the employer knew or should
                                               9
       Eltonsy did not mention harassment in her administrative complaint; she did
not allege facts in her civil pleading constituting a prima facie case of sexual
harassment; she did not address this issue in her response to MD Anderson’s plea
to the jurisdiction; and she did not respond to it on appeal. Moreover, at the
hearing on the plea to the jurisdiction, Eltonsy’s counsel repeatedly represented
that Eltonsy no longer intended to pursue a sexual-harassment claim, and argued
that the plea to the jurisdiction “on all the grounds except the sexual harassment
claim should be overruled.” We accordingly agree that the trial court erred in
failing to grant MD Anderson’s plea to the jurisdiction as to this claim.

                                     VII. CONCLUSION

       We reverse the portions of the trial court’s order denying MD Anderson’s
plea to the jurisdiction as to Eltonsy’s claims that MD Anderson committed gender
discrimination in setting her pay or in terminating her employment or that MD
Anderson engaged in sexual harassment. We remand the case with instructions to
the trial court to dismiss these claims with prejudice.


                                            /s/     Tracy Christopher
                                                    Justice

Panel consists of Chief Justice Frost and Justices Christopher and Busby.


have known of the harassment and failed to take adequate remedial action. Tex. Dep’t of Aging
& Disability Servs. v. Iredia, No. 01-13-00469-CV, 2014 WL 890921, at *4 (Tex. App.—
Houston [1st Dist.] Mar. 6, 2014, no pet.) (mem. op.). “The work environment must be ‘both
objectively and subjectively offensive, one that a reasonable person would find hostile or
abusive, and one that the victim in fact did perceive to be so.’” Martinez v. AA Foundries, Inc.,
No. 04-11-00879-CV, 2013 WL 346814, at *6 (Tex. App.—San Antonio Jan. 30, 2013, no pet.)
(mem. op.) (quoting Aryain v. Wal–Mart Stores of Tex., LP, 534 F.3d 473, 479 (5th Cir. 2008)).
“Courts look to all the circumstances in determining whether a hostile work environment exists,
including the frequency of the discriminatory conduct and whether it unreasonably interfered
with the employee’s work performance.” Waffle House, Inc. v. Williams, 313 S.W.3d 796, 806
(Tex. 2010).

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