Affirmed and Memorandum Opinion filed July 30, 2013.




                                      In The

                    Fourteenth Court of Appeals

                              NO. 14-11-00977-CV

                        MATHEW ESTERS, Appellant
                                        V.
TEXAS DEPARTMENT OF TRANSPORTATION AND STANLEY YIN IN
HIS OFFICIAL CAPACITY ONLY FOR THE TEXAS DEPARTMENT OF
                TRANSPORTATION, Appellees

                   On Appeal from the 333rd District Court
                            Harris County, Texas
                      Trial Court Cause No. 2006-43005

                 MEMORANDUM                      OPINION

      In this employment discrimination case, appellant Mathew Esters challenges
the trial court’s overruling of his objection to the jury charge. He argues that the
trial court incorrectly instructed the jury to consider only a 300-day period based
upon 42 United States Code section 2000e-5(e), and should instead have instructed
the jury to consider a two-year period based upon Texas Labor Code section
21.256. Because the correct statutory period is not two years, we affirm.

                                      BACKGROUND

       Esters allegedly endured deplorable treatment while employed by appellee
Texas Department of Transportation. He testified that problems with his eventual
supervisor, appellee Stanley Yin, began in the 1980s. For example, in the ’80s or
early ’90s, Yin allegedly tried to force Esters, who is African–American, to take
Confederate Heroes Day as an optional holiday instead of Martin Luther King Day.
Esters testified that, between 1997 and 2000, Yin told him that he would never be
promoted as long as he worked in Yin’s lab.

       Esters’s most disturbing allegations, however, occurred after 2002,
following Esters’s testimony against Yin in another employee’s race discrimination
lawsuit. Yin allegedly told Esters that “if [Esters] testified it was gonna be hell to
pay.” Esters interpreted this statement to mean that Yin was “out to get [him], to
terminate [him], to hold [him] back.”

       There was evidence that, after Esters testified, Yin’s alleged racist behavior
escalated.    According to Esters, Yin called him “stupid [expletive] black,”
“nigger,” and “stupid boy.”1 Yin allegedly “joke[d]” that Esters was “the minority
token black boy.” There was evidence that Yin described black employees as
“crippled mentally,” that he limited their restroom breaks, and that he interfered
with their ability to advance in the Department.             Another African–American
employee testified that Yin told him “blacks have no standards.” The employee
said that even though he had an advanced engineering degree, Yin assigned him
janitorial duties that “non-black” employees were not assigned. Yin allegedly told
African–American employees that they “could file all the law suits [they]
       1
          We do not in any way approve of such language, but we include it here because it is
relevant to Esters’s claims.

                                             2
want[ed],” “[h]e w[ould] continue to treat [them] the same[ ] because [the
Department] w[ould] back him.”

      This behavior reached a crescendo in 2005, when Yin allegedly began
taunting Esters by placing items around Esters’s desk. In January of that year, it
was job fliers. In April, Yin allegedly hung a noose above the desk. In May, it
was a flier that read “GO BACK TO AFRICA YOU NIGGERS.”                    And in
September, it was a flier describing African–Americans as “Big lipped monkies!!!”

      The alleged use of abusive, racist language also increased in 2005. In June,
Yin allegedly called Esters “a lazy [expletive] non-production black employee.”
When Esters took sick leave in July, Yin allegedly criticized him, saying
“‘[t]hat[’s] just like blacks always want[ ] something free.”      In September,
according to Esters, Yin described him as “one more worthless black [expletive] to
run off.”

      There was evidence that Esters filed fifteen or sixteen internal complaints
about Yin’s behavior, including a letter about the noose incident to a Department
supervisor. For his part, Yin denied Esters’s allegations. There is no indication
that the Department ever disciplined Yin.

      According to Esters, the Department’s abusive environment led him to suffer
a nervous breakdown. He considered suicide. In 2006, Esters paid over $27,000
to begin collecting his retirement early and leave the Department. Social Security
later determined that, by the time Esters retired, he was “100-percent mental[ly]
disabled.” Although Esters worked for the Department for twenty-six years, he
received only one promotion, which he testified came in the wake of the other
racial discrimination lawsuit involving allegations against Yin.

      On March 3, 2006, twenty-eight days before his retirement on March 31,


                                          3
Esters filed a charge of discrimination (complaint) with the federal Equal
Employment Opportunity Commission (EEOC) and with the Texas Workforce
Commission Civil Rights Division (TWC). The EEOC processed and investigated
Esters’s complaint. The EEOC closed its file on this complaint because, based on
its investigation, it was unable to conclude that the information obtained
established any statutory violations. The EEOC and the TWC each gave Esters a
notice of his right to sue the Department.

      Esters filed this action asserting various claims, including claims based upon
alleged violations of the Texas Labor Code and Title VII of the federal Civil
Rights Act of 1964 (see 42 U.S.C. §§ 2000e-1 to -17 (2012)). Esters alleged,
among other things, racially discriminatory treatment, constructive discharge, and
a racially hostile work environment. Esters’s claims were tried to a jury, and the
trial court submitted the following five liability questions to the jury: (1) “Was
race a motivating factor in [the Department’s] decision, if any, not to promote
[Esters] from June 4, 2005 through March 31, 2006?”; (2) “Was race a motivating
factor in [the Department’s] decision, if any, to discharge [Esters]?”; (3) “Did the
[Department] discharge [Esters] because [Esters] filed a charge with the [EEOC]
on or about March 3, 2006?”; (4) “Was [Esters] subjected to harassment based on
his race by [the Department] during the period of June 4, 2005 through March 31,
2006?”; and (5) “Was [Esters] subjected to a hostile working environment during
the period of June 4, 2005 through March 31, 2006?”. The jury answered “no” to
each of these questions, and the trial court rendered judgment that Esters take
nothing based on the jury’s verdict.

      The only issue before us is whether the trial court should have instructed the
jury to consider a two-year period rather than a 300-day period. Both Texas and
federal law require that administrative complaints regarding workplace

                                             4
discrimination be submitted within a fixed period after “the alleged unlawful
employment practice occurred.” 42 U.S.C. § 2000e-5(e)(1); Tex. Lab. Code Ann.
§ 21.202 (West 2006).

       At trial, the Department contended that Esters filed his administrative
complaint too long after the Department’s discriminatory conduct had ceased and
argued that Esters cannot recover based upon conduct that occurred outside the
applicable statutory time period. To address this issue, the trial court instructed the
jury to consider only events that occurred within 300 days of Esters’s retirement.2
Esters objected to the first, fourth, and fifth questions quoted above, arguing that a
Texas statute and United States Supreme Court precedent required a two-year
period. This colloquy ensued:

             [Esters’s counsel]: . . . [U]nder Section 21.256 [of the Texas
       Labor Code], it is my interpretation of the statute that it provides for a
       two-year anniversary from the date of the charge and in this particular
       case the charge was filed in March, 2006 and based on that
       anniversary date we would be allowed to go back for all actions that
       took place in the past two years from the date of the charge of
       discrimination.
              THE COURT: . . . [T]here’s no dispute that the charge was
       filed on March 3rd, 2006, right?
               [The Department’s counsel]: Correct.
               ....
            THE COURT: So that would roughly take you back under your
       argument to March 3rd, 2004?
               [Esters’s counsel]: Correct.
               THE COURT: I want you to make your argument fully. I
       2
          At trial, neither party asserted that the period should have begun 300 days before Esters
filed his complaint on March 3, 2006, rather than 300 days before he retired on March 31, 2006.
See 42 U.S.C.A. § 2000e-5(e); Tex. Labor Code Ann. § 21.202. Use of the retirement date
effectively shortened the period under consideration by twenty-eight days. Because Esters failed
to raise this issue in the trial court, however, we may not consider it.

                                                5
      didn’t mean to interrupt you, but I want your point on the record
      clearly.
             [Esters’s counsel]: So what that would do is allow us to go back
      and bring in this case all the way back to 2004, . . . those
      discriminatory acts that occurred back in 2004, including Mr. Mathew
      Esters’ application for promotion to a Material Processor V, as well as
      all those acts that were delineated in Mr. Esters’ . . . time line of all
      the discrete discriminatory acts.
            Even if you look at it I think that what the courts have done in
      these cases is they apply the same standard that they applied in those
      personal injury cases which is a two-year statute of limitation for
      those acts.
              . . . I would also like to cite a case which is -- this is a U.S.
      Supreme Court case which is National Railroad Passenger Corp.,
      versus Morgan and that is a 2002 opinion, and they go into not only
      just the two-year statute of limitation, they go as far as talking about
      what they call a continuing violation.
              ....
            . . . [A]nd in that case they even let time barred issues be
      considered by the Court. Some time barred claims were even
      allowed.
             And so what we’re arguing here today is that the 300-day
      window is not the appropriate window as far as limitation is
      concerned on Mr. Esters’ claim, but the appropriate remedy would
      be -- the appropriate limitation period would be the two-year as
      opposed to the one-year -- 300-day statute of limitation.

      The trial court overruled the objection and submitted a charge that limited
the jury’s consideration of the Department’s liability to events during the 300-day
period from June 4, 2005, to March 31, 2006. The jury answered “No” to all
questions on the Department’s liability, but included with its verdict a note reading
as follows:

              ALL
               THE JURORS WERE DISTURBED BY THE EVENTS IN THE
      HOUSTON DISTRICT LAB OF THE TEXAS DEPARTMENT OF
      TRANSPORTATION.

                                         6
            HOWEVER GIVEN THE CONSTRAINTS AND EVIDENCE DURING THE
       WINDOW FROM JUNE 4, 2005 UNTIL MARCH 31, 2006 WE WERE
       OBLIGATED TO ANSWER THE QUESTIONS AS WE DID.

              TEXAS DEPARTMENT   OF TRANSPORTATION SHOULD NOT FEEL
       VINDICATION BY THIS VERDICT, AND SHOULD TAKE THIS OPPORTUNITY
       TO EXAMINE COMPANY CULTURE AND PRACTICES.

                                           THE JURY OF THE FIGHTING 333RD
Twelve signatures appear below the note.

       Esters moved for a new trial, arguing, among other things, that the jury
should have been instructed to consider a two-year period instead of a 300-day
period. The trial court denied the motion, and Esters appeals the overruling of his
jury charge objection.

                                         ANALYSIS

       In two issues on appeal, Esters asserts the same two arguments he raised in
the above-quoted discussion with the trial court.             We conclude that neither
argument required the court to instruct the jury to consider a two-year period. But,
we begin by examining why the trial court may have instructed the jury to consider
a 300-day period in the first place.

       Employees who file administrative complaints regarding Title VII claims
with the EEOC and the TWC simultaneously must do so “within three hundred
days after the alleged unlawful employment practice occurred.” Urrutia v. Valero
Energy Corp., 841 F.2d 123, 125 (5th Cir. 1988) (quoting 42 U.S.C. § 2000e-5(e)).
If a plaintiff does not file an administrative complaint within 300 days, the plaintiff
cannot recover on a Title VII claim based on this alleged unlawful employment
practice.3 See Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 115–18

       3
         The time period for filing an administrative complaint regarding a Title VII claim is
subject to doctrines such as waiver, estoppel, and equitable tolling. See Nat’l R.R. Passenger
                                              7
(2002).

       In this case, Esters filed his complaints simultaneously. In the jury charge,
the trial court incorporated the 300-day window as a “look-back period” in its
liability questions.4 Neither party objected to this manner of submitting the issue
to the jury, and neither complains about it on appeal. Therefore, we express no
opinion on whether the trial court’s instruction was correct in this regard. See
Akin, Gump, Strauss, Hauer & Feld, L.L.P. v. Nat’l Dev. & Research Corp., 299
S.W.3d 106, 112 (Tex. 2009). Instead, we proceed to Esters’s arguments that the
trial court should have instructed the jury to consider a period of two years instead
of 300 days. We determine whether this challenged portion of the charge is legally
correct using a de novo standard of review. Hatfield v. Solomon, 316 S.W.3d 50,
57 (Tex. App.—Houston [14th Dist.] 2010, no pet.).5

       Esters argues that the trial court should have instructed the jury to consider a
two-year period for two reasons: (1) Texas Labor Code section 21.256 entitled him
to a two-year period; and (2) the “continuing violation doctrine” required the jury


Corp. v. Morgan, 536 U.S. 101, 113–14 (2002). Nonetheless, Esters has not raised waiver,
estoppel, or equitable tolling arguments.
       4
         In addition to his Title VII claims, Esters brought claims under the Texas Commission
on Human Rights Act (TCHRA), a Texas statute that parallels Title VII. To the extent the trial
court may have applied a 300-day statutory period to Esters’s TCHRA claims, its decision to do
so is not before us, and we express no opinion upon it. We note that the TCHRA requires
administrative complaints to be filed within 180 days after the date on which the alleged
unlawful employment practice occurred, see Tex. Lab. Code Ann. § 21.202, and some authorities
have held Title VII’s 300-day period does not apply to TCHRA claims. See, e.g., Pope v. MCI
Telecomms. Corp., 937 F.2d 258, 264 (5th Cir. 1991); Ashcroft v. HEPC-Anatole, Inc., 244
S.W.3d 649, 651 (Tex. App.—Dallas 2008, no pet.).
       5
          In his second issue, Esters contends that “the jury’s answers . . . [are] against the great
weight and preponderance of the evidence and [are] manifestly unjust because of the application
of the wrong 300 days actionable liability period.” We understand this issue to attack the trial
court’s legal conclusion that 300 days was the correct period, as does Esters’s first issue. Thus,
we consider both issues together.

                                                 8
to consider a two-year period.6 See Nat’l R.R. Passenger Corp., 536 U.S. at 109.
We address each argument in turn.

       A.      Texas Labor Code section 21.256 does not address the period for
               filing an administrative complaint and therefore did not require
               the jury to consider a two-year period.
       Texas Labor Code section 21.256 provides, in its entirety, that “[a] civil
action may not be brought under [the Judicial Enforcement subchapter of the Labor
Code] later than the second anniversary of the date the complaint relating to the
action is filed.” Esters contends that because he filed his administrative complaint
on March 31, 2006, this statute makes the complaint timely as to all acts by the
Department after March 31, 2004.7 We disagree.

       Under this statute, “a plaintiff . . . must file suit within two years of the date
he filed his complaint with the Texas Workforce Commission [or EEOC].” Goss
v. City of Houston, 391 S.W.3d 168, 172 (Tex. App.—Houston [1st Dist.] 2012, no
pet.). If an employee fails to file suit within two years of his initial administrative
complaint, the statute bars his suit. See id. Here, no one contends—or has ever
contended—that Esters’s lawsuit was untimely under this statute. Esters filed his
administrative complaint on March 3, 2006 and brought this suit on July 11, 2006,
well within the required two-year period.

       In sum, section 21.256 sets a two-year deadline for filing a lawsuit by
reference to the date the administrative complaint was filed, and it is undisputed


       6
          On appeal, Esters occasionally argues that he was entitled to a period of two years “or
more” and contends he raised this issue in the trial court. Regardless of the actual period Esters
requested, however, his arguments do not justify altering the period in the jury instructions. For
the reasons we discuss below, the continuing violation doctrine does not support a jury
instruction to consider a two-year period or any other specific period in excess of two years.
       7
        As noted above, Esters actually filed his administrative complaint on March 3, 2006,
not March 31, 2006.

                                                9
that deadline was met here. This particular statute says nothing about when the
administrative complaint had to be filed or how far back the jury may look in
determining the employer’s liability. Thus, it provides no support for Esters’s
objection to instructing the jury to consider a 300-day period in determining
liability.8

       B.      The continuing violation doctrine did not entitle Esters to an
               instruction on a two-year period.
       Esters next contends that the continuing violation doctrine required the trial
court to instruct the jury to consider a two-year period. We disagree.

       The continuing violation doctrine is an exception to statutes that require an
administrative complaint to be filed within a certain period of time after an
unlawful employment practice occurs. See Nat’l R.R. Passenger Corp., 536 U.S.
at 115–21; Santi v. Univ. of Texas Health Sci. Ctr. at Houston, 312 S.W.3d 800,
804 (Tex. App.—Houston [1st Dist.] 2009, no pet.). The doctrine applies when an
unlawful employment practice manifests itself over time, rather than as a series of
discrete acts. See Nat’l R.R. Passenger Corp., 536 U.S. at 115–21; Santi, 312
S.W.3d. at 804–05. To invoke the doctrine, an employee must show an organized
scheme leading to and including a present violation, so that the cumulative effect
of the discriminatory practice, rather than any discrete occurrence, gives rise to the
cause of action. Davis v. Autonation USA Corp., 226 S.W.3d 487, 493 (Tex.
App.—Houston [1st Dist.] 2006, no pet.). For example, hostile work environment,

       8
          Esters also contends that section 21.258(c) of the Texas Labor Code entitled him to an
instruction based on a two-year period because it provides that “[l]iability under a back pay
award may not accrue for a date more than two years before the date a complaint is filed with the
commission.” Section 21.258 limits a court’s ability to award equitable relief in the form of back
pay, but does not govern—or even mention—administrative filing requirements. Therefore, like
section 21.256, section 21.258 does not support Esters’s request for a two-year period. Cf.
Morgan, 536 U.S. at 119 (although administrative Title VII complaint must be within either 180
or 300 days of alleged unlawful practice, back pay for up to two years available as damages).

                                               10
which was one of Esters’s claims, is a continuing violation.                  See Nat’l R.R.
Passenger Corp., 536 U.S. at 115–17. Termination, failure to promote, denial of
transfer, or refusal to hire are discrete acts. Id. at 114.9

       Under the continuing violation doctrine, if the plaintiff can show a series of
related acts, only one act need fall within the filing period.                See Nat’l R.R.
Passenger Corp., 536 U.S. at 117; Wal-Mart Stores, Inc. v. Davis, 979 S.W.2d 30,
42 (Tex. App.—Austin 1998, pet. denied). But the doctrine does not alter the
relevant statutory timeframes; it only changes the extent to which actionable
behavior must occur within these timeframes. See Nat’l R.R. Passenger Corp., 536
U.S. at 115–21; Davis, 979 S.W.2d at 41–42. The relevant filing period is still 300
days,10 but the jury could consider related acts prior to the period as long as one act
contributing to the claim occurred within it. See id. Simply instructing the jury to
consider a two-year period, as Esters argues the trial court should have, is
inconsistent with the nature of the doctrine. An instruction incorporating a two-
year period would have enabled the jury to award damages even if no event
contributing to the hostile work environment occurred within the 300-day filing
period for an administrative complaint. Thus, the instruction Esters sought would
have changed the deadline for filing an administrative complaint to two years after
the date on which the alleged unlawful employment practice occurred.                       The
continuing violation doctrine does not provide this relief. Even assuming, without
deciding, that Esters proved a hostile work environment, that fact would not entitle
him to a jury instruction on a two-year period. Accordingly, the trial court did not
err in overruling Esters’s objection.
       9
          If an employee’s administrative complaint is not timely as to some discrete
discriminatory acts, those acts may still be used “as background evidence in support of a timely
claim.” Nat’l R.R. Passenger Corp., 536 U.S. at 113.
       10
         In some circumstances, the period is 180 days. See 42 U.S.C.A. § 2000e-5(e); Tex.
Lab. Code Ann. § 21.202.

                                              11
       Moreover, to the extent Esters contends the trial court erred by failing to
instruct the jury on the continuing violation doctrine, Esters neither requested such
a supplemental instruction nor tendered a substantially correct instruction to the
trial court. See Tex. R. Civ. P. 278 (“Failure to submit a definition or instruction
shall not be deemed a ground for reversal of the judgment unless a substantially
correct definition or instruction has been requested in writing and tendered by the
party complaining of the judgment.”). Instead, he urged the trial court to instruct
the jury on a two-year period to which he was not entitled. Thus, even if we
construe the remarks of Esters’s counsel as a request for an instruction using a two-
year period based upon the continuing violation doctrine, this request for an
affirmatively incorrect instruction does not satisfy the requirement for submission
of a substantially correct instruction in writing. See Baylor Univ. v. Coley, 221
S.W.3d 599, 607 (Tex. 2007) (Johnson, J., concurring) (“A requested instruction
that is affirmatively incorrect is not ‘substantially correct’ . . . .”).11 For these
reasons, we hold that the trial court did not err by in overruling Esters’s
objection.12

                                         CONCLUSION

       If Esters’s allegations are true, severe racial discrimination occurred in this

       11
          As explained above, the only issue before us regarding the trial court’s jury instructions
is whether the 300-day period should instead have been a two-year period. Thus, beyond
holding that a two-year period is not correct, this case does not require us to prescribe a correct
instruction regarding the administrative filing period or the continuing violation doctrine. Trial
courts have broad discretion to use evidentiary rulings, limiting instructions, or jury charge
instructions to ensure that the jury considers the relevant acts in determining liability. See Thota
v. Young, 366 S.W.3d 678, 687 (Tex. 2012) (“The trial court has considerable discretion to
determine proper jury instructions . . . .”); Exxon Pipeline Co. v. Zwahr, 88 S.W.3d 623, 629
(Tex. 2002) (“[T]he trial court . . . has broad discretion to determine the admissibility of
evidence.”).
       12
           Because the trial court did not err, we need not address Esters’s contentions that the
trial court’s instruction harmed him.

                                                12
case. Like the jury, we do not condone such behavior. But it is not this Court’s
role to find facts or to consider arguments the parties have not made. Because the
trial court did not err in refusing to instruct the jury to apply a two-year period, we
affirm its judgment.



                                        /s/    J. Brett Busby
                                               Justice




Panel consists of Justices Frost, Brown, and Busby.




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