           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                           July 18, 2008

                                     No. 08-10027                     Charles R. Fulbruge III
                                   Summary Calendar                           Clerk


ETTA LOWERY

                                                  Plaintiff – Appellant
v.

ALLSTATE TEXAS LLOYDS INC, in its assumed or common name, also
known as Allstate Insurance Co; ALLSTATE COUNTY MUTUAL
INSURANCE COMPANY, in its assumed or common name, also known as
Allstate Insurance Co; SANDRA MOBLEY, Individually; BRIAN VIOHL,
Individually

                                                  Defendants – Appellees



                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:06-cv-01886


Before STEWART, OWEN, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Etta Lowery appeals the district court’s grant of summary judgment in
favor of the defendants (collectively “Allstate”) on her claims of discrimination
and retaliation under the Texas Commission on Human Rights Act. We affirm



       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
                                 No. 08-10027

because Lowery did not timely file a charge of discrimination as required under
Texas law.
              I. FACTS AND PROCEDURAL BACKGROUND
      Lowery, a long-time employee of Allstate, began her career with the
company in Wisconsin. In the mid-1990s, Lowery relocated to Texas and was
employed by Allstate as a Market Business Consultant (“MBC”), a sales
management position.      In 2005, Allstate implemented a company-wide
reduction-in-force (“RIF”) that reduced the total number of sales management
positions in Texas from 75 to 65. Of the ten employees laid off in the RIF, six
were MBCs, Lowery among them.
      On March 7, 2005, Allstate’s human resources manager, Ross Carnes, met
with Lowery to explain that her position had been eliminated as part of the RIF.
At this meeting, Lowery was provided with a form letter that contained the
following relevant language:
      A Corporate business decision has been made to transition the
      Regional Field Sales Leadership functions to align with the new
      Field Leadership Enablement (FLE) project. As a result of this
      business decision, your position as Market Business Consultant is
      being eliminated. Every effort will be made to place you in a
      position at Allstate for which you qualify. This letter is formal
      notification that, should you either not be offered a position or
      should you choose not to accept an offer for an alternative position
      at Allstate by May 6, 2005, your employment will be terminated.
      Carnes then informed Lowery that she would not be eligible for any other
positions with Allstate because she had previously received an “unacceptable”
performance review.     On this same day, Lowery turned in her company
computer, employee identification badge, and company credit card. Lowery
never again performed any work for Allstate. However, she remained on the
Allstate payroll until September 30, 2005.
      Lowery filed a complaint with the Texas Commission on Human Rights on
October 27, 2005, alleging that Allstate had discriminated against her on the

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basis of age and race and retaliated against her for engaging in protected
activity. In August 2006, after receiving a right-to-sue letter, Lowery sued
Allstate in Texas state court, alleging that her termination was motivated by
age- and race-based discrimination and unlawful retaliation for a previous
charge of discrimination that she filed against Allstate in Wisconsin.
      Allstate removed the suit to federal court and then responded, arguing
first that Lowery’s claims should be dismissed because her initial charge of
discrimination and retaliation was untimely. Alternatively, Allstate argued that
Lowery’s termination was based on the same race-neutral, job-performance
factors that were used to evaluate every MBC under the RIF. According to
Allstate, Lowery’s termination was the result of her declining performance, not
a discriminatory or retaliatory animus.
      The district court dismissed the claims against Defendants Mobley and
Viohl. The court then granted summary judgment in favor of Allstate, holding
that Lowery’s suit was barred because she failed to timely file an administrative
charge of discrimination. The district court also held that even if Lowery’s
administrative charge was deemed to be timely filed, she had not rebutted the
legitimate, nondiscriminatory reasons that Allstate offered for her termination.
Lowery timely appealed the judgment in favor of Allstate as to her race
discrimination and retaliation claims. On appeal, she does not challenge the
dismissal of Defendants Mobley and Viohl, nor the finding that she abandoned
her age discrimination claim.
                                II. DISCUSSION
      We review a summary judgment de novo, applying the same standard as
did the district court. Roberson v. Alltel Info. Sys., 373 F.3d 647, 650 (5th Cir.
2004). Summary judgment is only appropriate “if the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the affidavits,
if any, show that there is no genuine issue as to any material fact and that the

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moving party is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c).
We view the evidence on file and draw all reasonable inferences therefrom in the
light most favorable to Lowery, the nonmovant. Roberson, 373 F.3d at 651.
      Lowery alleges that Allstate’s actions violated the Texas Commission on
Human Rights Act, which prohibits discrimination and retaliation by employers.
See Tex. Lab. Code Ann. § 21.001 et seq. (Vernon 2006); Pineda v. United Parcel
Serv., Inc., 360 F.3d 483, 487-88 (5th Cir. 2004). However, before suing her
employer, an aggrieved employee must first exhaust administrative remedies.
Schroeder v. Texas Iron Works, Inc., 813 S.W.2d 483, 485-86 (Tex. 1991). The
Act provides that an administrative complaint “must be filed not later than the
180th day after the date the alleged unlawful employment practice occurred.”
Tex. Lab. Code Ann. § 21.202(a). This 180-day time limit is “mandatory and
jurisdictional.” Ashcroft v. HEPC-Anatole, Inc., 244 S.W.3d 649, 650 (Tex. App.
2008) (citing Specialty Retailers, Inc. v. DeMoranville, 933 S.W.2d 490, 492 (Tex.
1996)).
      Under this Act, the “limitations period begins when the employee is
informed of the allegedly discriminatory employment decision, not when that
decision comes to fruition.” DeMoranville, 933 S.W.2d at 493. Thus, in an
unlawful discharge case, the final date of employment will not always trigger the
running of the limitations peroid. Rather, the 180-day period commences when
an employee receives unequivocal notice of his termination or when a reasonable
person would know that he will be terminated. See Johnson & Johnson Med.,
Inc. v. Sanchez, 924 S.W.2d 925, 928 (Tex. 1996); Texas Parks & Wildlife Dep’t
v. Dearing, 150 S.W.3d 452, 459 (Tex. App. 2004). This is analogous to our
application of similar limitations periods contained in federal anti-discrimination
statutes. See Conaway v. Control Data Corp., 955 F.2d 358, 362 (5th Cir. 1992).
      As noted above, Allstate provided Lowery with a form letter on March 7,
2005, informing her that her position was being eliminated.            The letter

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suggested that efforts would be made to place her in another position for which
she was qualified. Lowery argues that the limitations period did not begin on
this March date because the form letter did not unequivocally inform her that
she was ineligible for another position at Allstate. Instead, she suggests that the
operative date is September 19, 2005, when Allstate mailed her a letter that
stated: “This letter is formal notification that your employment is being
terminated effective Friday, September 30, 2005.” Alternatively, she argues that
the May 6, 2005 date referenced in the form letter was the first date on which
she could have reasonably known that she had actually been terminated.
      These arguments rely on the date of formal notification of termination.
Such an emphasis is at odds with the settled jurisprudence, under which “[t]he
proper focus is upon the time of the discriminatory acts, not upon the time at
which the consequences of the acts become most painful.” DeMoranville, 933
S.W.2d at 492 (quoting Delaware State College v. Ricks, 449 U.S. 250, 258
(1980)) (emphasis in original). What Lowery disregards is that simultaneously
with delivery of the letter, Carnes orally informed her that she was not qualified
for any other positions at Allstate. At this point, any reasonable employee would
or should have known that her employment with Allstate was at an end.
      Lowery’s own account of her meeting with Carnes confirms this point.
Lowery’s deposition reveals that, in response to her request for access to
Allstate’s internal job posting system, Carnes informed her that “there would be
no way because . . . once you get an unacceptable rating, you will not be able to
get another position in Allstate Insurance Company.” Lowery further testified
that Carnes “informed me that [there] would be no way that I could continue my
employment with Allstate because of my unacceptable performance rating.”
Thus, Lowery’s subjective understanding of the import of the letter and meeting
with Carnes supports our objective determination that any reasonable employee
would have known that her employment was terminated as of March 7, 2005.

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      Because Lowery was “informed of the allegedly discriminatory
employment decision” on March 7, 2005, the 180-day period for filing an
administrative complaint expired on September 3, 2005. Lowery did not file a
charge with the Texas Commission on Human Rights until October 27, 2005.
Because her discrimination complaint was untimely, her suit is barred. We
therefore do not analyze the merits of her claims.
      The judgment of the district court is AFFIRMED.




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