                              Fourth Court of Appeals
                                    San Antonio, Texas
                                MEMORANDUM OPINION

                                        No. 04-17-00197-CV

                                     Francisco SANCHEZ, Jr.,
                                             Appellant

                                                 v.

                         TEXAS A&M UNIVERSITY-SAN ANTONIO,
                                      Appellee

                     From the 285th Judicial District Court, Bexar County, Texas
                                  Trial Court No. 2015-CI-06141
                            Honorable Karen H. Pozza, Judge Presiding

Opinion by:      Luz Elena D. Chapa, Justice

Sitting:         Karen Angelini, Justice
                 Luz Elena D. Chapa, Justice
                 Irene Rios, Justice

Delivered and Filed: December 12, 2018

AFFIRMED

           Francisco Sanchez, Jr. appeals the trial court’s judgment dismissing his employment

discrimination claims against Texas A&M University-San Antonio (the University). Sanchez

argues the trial court erred by granting the University’s combined plea to the jurisdiction,

traditional motion for summary judgment, and no-evidence motion for summary judgment.

Because Sanchez did not timely file his charge of discrimination or demonstrate the University’s

reason for its employment decisions was a pretext, we affirm the trial court’s judgment.
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                                          BACKGROUND

       The University hired Sanchez in 2001 to manage student enrollment. In 2009, Sanchez was

promoted to Assistant Vice President (AVP) for Enrollment Management. At the time, the

University admitted only college juniors and seniors. The University decided to pursue “downward

expansion” and to start admitting freshmen and sophomores. The University also sought

accreditation from the Southern Association of Colleges and Schools.

       To accomplish these goals, the University identified Sanchez as the most qualified

candidate to lead a project of implementing a resource planning software system known as

“Banner,” which was used by other universities in the A&M University System. The parties refer

to the implementation of Banner as the “Banner project” and “Banner Implementation Project.”

Sanchez was notified by a June 25, 2012 letter that he was being transferred to work on the project.

The letter, sent from then-President Dr. Maria Hernandez Ferrier, stated:

       It is with great enthusiasm that I offer you the position of Special Assistant for
       Finance and Administration to serve as a critical member of the Banner
       implementation team. This move will be considered a transfer . . . effective
       . . . Monday July 2, 2012. Your salary will increase effective July 1, 2012 from
       $95,000 to $100,000 for work completed during the Banner Implementation
       Project. Your salary will be reduced $5,000 at the end of the Banner
       Implementation Project with an expected end date of August 31, 2014.

Sanchez was led to believe that he either still held his AVP position or that the position would be

held open for him until the end of the Banner Project on August 31, 2014.

       In April 2013, the University hired Dr. Melissa Mahan to serve as the new Vice President

of Student Affairs. When she was hired, Dr. Mahan believed she was tasked with building her own

team and implementing a structure for student enrollment, engagement, and success, although the

University never expressly directed her to do so. On May 2, 2013, the University posted a job

opening for an AVP for Enrollment. Later that month, Sanchez complained to his supervisor that

he felt the University’s decision to post a job opening for the AVP for Enrollment was wrong and
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discriminatory. Sanchez applied for the position, but he was not interviewed. Instead, in September

2013, Sanchez discovered the University had hired Dr. Eric Cooper.

       On May 1, 2014, Sanchez was informed that his current position would be eliminated on

August 31, 2014, which was the expected end date stated in Dr. Ferrier’s June 25, 2012 letter. The

University sought to terminate the position in accordance with a Texas A&M University System

regulation outlining the procedure for implementing a reduction in force (or RIF). The RIF targeted

two positions for elimination: Sanchez’s position and “the Banner Implementation Team Member”

position, with an effective end date of August 31, 2014. In lieu of termination, the University

offered Sanchez a position of ITS Project Manager with a salary of $30,000 below his current

salary. Sanchez accepted the transfer under protest.

       On September 29, 2014, Sanchez filed a charge of discrimination with the Equal

Employment Opportunity Commission (EEOC). In the EEOC charge of discrimination, Sanchez

complained about both the hiring of Dr. Cooper and the elimination of his position on the Banner

project. Sanchez stated the employment actions were based on retaliation and his national origin.

Sanchez received his right to sue letter from the EEOC on February 23, 2015.

       On April 14, 2015, Sanchez filed suit. The University filed an answer, as well as its

combined plea to the jurisdiction, traditional motion for summary judgment, and no-evidence

motion for summary judgment. The University argued Sanchez failed to timely file his EEOC

charge and failed to timely bring suit. The University also challenged the elements of Sanchez’s

employment claims and argued there was no evidence showing the RIF was a pretext. After a

hearing, the trial court signed a final judgment granting the combined plea and motion without

stating the grounds. Sanchez timely filed a notice of appeal.




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                                       STANDARDS OF REVIEW

A. Plea to the Jurisdiction

        “In Texas, sovereign immunity deprives a trial court of subject matter jurisdiction for

lawsuits in which the state or certain governmental units have been sued unless the state consents

to suit.” Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 224 (Tex. 2004). A party’s

“statutory cause of action against a governmental entity” is jurisdictionally barred unless it

complies with the statutory prerequisites. Prairie View A & M Univ. v. Chatha, 381 S.W.3d 500,

512 (Tex. 2012). A party may challenge the trial court’s subject matter jurisdiction by filing a plea

to the jurisdiction. Miranda, 133 S.W.3d at 225-26. “Whether a court has subject matter

jurisdiction is a question of law.” Id. at 226. “[W]hether undisputed evidence of jurisdictional facts

establishes a trial court’s jurisdiction is also a question of law.” Id.

        “However, in some cases, disputed evidence of jurisdictional facts that also implicate the

merits of the case may require resolution by the finder of fact.” Id. If a plea to the jurisdiction

challenges the existence of jurisdictional facts that also implicate the merits of a case, a court

considers “relevant evidence submitted by the parties when necessary to resolve the jurisdictional

issues raised.” Id. “If the evidence creates a fact question regarding the jurisdictional issue, then

the trial court cannot grant the plea to the jurisdiction, and the fact issue will be resolved by the

fact finder.” Id. at 227-28. “However, if the relevant evidence is undisputed or fails to raise a fact

question on the jurisdictional issue, the trial court rules on the plea to the jurisdiction as a matter

of law.” Id. at 228. “When reviewing a plea to the jurisdiction in which the pleading requirement

has been met and evidence has been submitted to support the plea that implicates the merits of the

case, we take as true all evidence favorable to the nonmovant.” Id. “We indulge every reasonable

inference and resolve any doubts in the nonmovant’s favor.” Id.



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B. Motions for Summary Judgment

       We review the trial court’s grant of a summary judgment de novo, regardless of whether

the summary judgment motion was a traditional motion or a no-evidence motion. Valence

Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). To prevail on a traditional motion for

summary judgment, the movant must show that no genuine issue of material fact exists and that it

is entitled to judgment as a matter of law. TEX. R. CIV. P. 166a(c); Provident Life & Accident Ins.

Co. v. Knott, 128 S.W.3d 211, 215-16 (Tex. 2003). In reviewing a summary judgment, we take as

true all evidence favorable to the non-movant, indulging every reasonable inference and resolving

any doubts in the non-movant’s favor. Knott, 128 S.W.3d at 215.

       We review a no-evidence summary judgment using a legal sufficiency standard. King

Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750-51 (Tex. 2003); see also TEX. R. CIV. P. 166a(i).

“When reviewing a summary judgment, we take as true all evidence favorable to the nonmovant,

and we indulge every reasonable inference and resolve any doubts in the nonmovant’s favor.” Joe

v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 157 (Tex. 2004); accord Strandberg v.

Spectrum Office Bldg., 293 S.W.3d 736, 738 (Tex. App.—San Antonio 2009, no pet.). If the

nonmovant’s summary judgment evidence contains “more than a scintilla of probative evidence

to raise a genuine issue of material fact,” the trial court may not properly grant the no-evidence

motion. Smith v. O’Donnell, 288 S.W.3d 417, 424 (Tex. 2009).

                                            DISCUSSION

       At oral argument, Sanchez explained the nature of his employment claims against the

University that centered on two series of actions taken by the University. The first series of actions

begins with the posting of the AVP for Enrollment position and includes the University’s actions

through the hiring of Dr. Cooper for the position. The second series of actions begins with the May

1, 2014 notification that Sanchez’s temporary position would be eliminated on August 31, 2014,
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and included the University’s actions through Sanchez’s involuntary transfer to the position of ITS

Project Manager. Sanchez characterizes the two series of actions as each resulting in a forced

demotion. For clarity, we refer to the first alleged demotion as the “AVP demotion” and the second

as the “Banner project demotion.”

                                          EEOC CHARGE

       Sanchez argues he filed his EEOC charge within 180 days of the University’s adverse

employment actions. See Tex. A&M Univ. v. Starks, 500 S.W.3d 560, 568 (Tex. App.—Waco

2016, no pet.) (stating an employment claim is jurisdictionally barred if the charge of

discrimination is not filed within 180 days of the adverse employment action). The jurisdictional

facts, which do not implicate the merits of Sanchez’s claims, are undisputed. Sanchez filed his

EEOC charge on September 29, 2014. The parties do not dispute the EEOC charge was filed more

than 180 days after the AVP demotion, which culminated a year earlier when Sanchez discovered

the University had hired Dr. Cooper. The parties also do not dispute the EEOC charge was timely

filed less than 180 days after the Banner project demotion.

       Instead, Sanchez argues the EEOC charge was timely filed as to both demotions under the

“continuing violation” doctrine. “When a charge is timely filed as to one act of discrimination, the

doctrine of continuing violation expands the scope of those discriminatory events that are

actionable, as long as one of the events occurs within the 180-day period.” Wal-Mart Stores, Inc.

v. Davis, 979 S.W.2d 30, 41 (Tex. App.—Austin 1998, pet. denied). “This doctrine applies when

an unlawful employment practice manifests itself over time, rather than as a series of discrete acts.”

Id. at 41-42.

       “The core idea of the continuing-violation doctrine is that equitable considerations may

require that the filing period not begin until acts supportive of a civil rights action are, or should

be, apparent to a reasonably prudent person in the same or a similar position.” Id. at 42. “The focus
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is on what event should, in fairness and logic, have alerted the average layperson to act to protect

his or her rights.” Id. Consequently, the continuing violation doctrine may apply to hostile work

environment claims and constructive discharge cases. See, e.g., Cooper-Day v. RME Petroleum

Co., 121 S.W.3d 78, 86 (Tex. App.—Fort Worth 2003, pet. denied). But the doctrine generally

does not apply to discrete acts such as “termination, failure to promote, denial of transfer, or refusal

to hire.” Id. (citing Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 114 (2002)).

        We hold the continuing violation doctrine does not apply to Sanchez’s claims. Sanchez

claimed the AVP demotion began with the job posting for the AVP for Enrollment. When he

learned about the posting, Sanchez promptly complained about discrimination to the University.

After making this internal complaint, Sanchez was not interviewed for the AVP for Enrollment

position and the University hired Dr. Cooper, who was not in any applicable protected class. At

the time Sanchez discovered Dr. Cooper was hired, the alleged demotion and the discriminatory

basis therefor were, or should have been, apparent to a reasonably prudent person in the same or a

similar position. See Wal-Mart Stores, Inc., 979 S.W.2d at 41.

        Even accepting as true Sanchez’s characterization of the University’s employment decision

as a demotion, the continuing violation doctrine generally does not apply to demotions because

demotions are generally discrete acts. Olivarez v. Univ. of Tex. at Austin, No. 03-05-00781-CV,

2009 WL 1423929, at *2 (Tex. App.—Austin May 21, 2009, no pet.) (mem. op.) (stating a

“demotion is a discrete adverse action that cannot be lumped together with the day-to-day patter[n]

of . . . harassment and cannot be saved by the continuing-violation doctrine.”) (internal quotation

marks omitted). Because the continuing violation doctrine does not apply, Sanchez’s EEOC charge

was untimely as to the AVP demotion. We therefore hold the trial court did not err by dismissing

Sanchez’s claims to the extent they are based on the AVP demotion. See Starks, 500 S.W.3d at

568.
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                                   REDUCTION IN FORCE (RIF)

       To the extent his claims are based on the Banner project demotion, Sanchez argues he

timely brought suit after receiving his right to sue letter and presented sufficient evidence to raise

a fact issue regarding the merits of his claims. When, as here, a plaintiff cannot prove

discrimination through direct evidence, courts apply the burden-shifting mechanism described in

McDonnell Douglas Corp. v. Green. 411 U.S. 792, 802-05 (1973); accord Mission Consol. Indep.

Sch. Dist. v. Garcia, 372 S.W.3d 629, 634 (Tex. 2012). A plaintiff raises a presumption of

discrimination if he meets the initial burden of presenting a prima facie case of discrimination.

Garcia, 372 S.W.3d at 634. Once the plaintiff presents a prima facie case, the burden shifts to the

employer to articulate a legitimate non-discriminatory reason for its treatment of the employee.

McDonnell Douglas, 411 U.S. at 802; Donaldson v. Tex. Dep’t of Aging & Disability Servs., 495

S.W.3d 421, 437 (Tex. App.—Houston [1st Dist.] 2016, pet. denied). The burden then shifts back

to the plaintiff to produce evidence showing the legitimate non-discriminatory reason is actually a

pretext. See McDonnell Douglas, 411 U.S. at 802; Donaldson, 495 S.W.3d at 438.

       Assuming Sanchez timely brought suit and presented a prima facie case that the Banner

project demotion was discriminatory and retaliatory, the University articulated a legitimate non-

discriminatory reason for the alleged demotion: the reduction in force (RIF). See McDonnell

Douglas, 411 U.S. at 802; Donaldson, 495 S.W.3d at 438. Human Resources Director Karen

Collins swore in her affidavit, “[T]he RIF was needed because the Banner Implementation Project

was put on hold and there was no work for Mr. Sanchez and [the other banner project employee].”

Collins further swore the RIF was initiated “per policy.” Her affidavit also stated, “The RIF was

not ultimately implemented because both affected employees accepted other positions within the

University.” Because the University articulated a legitimate non-discriminatory reason for the

Banner project demotion, Sanchez had the burden to produce some evidence showing the RIF was
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a pretext for discrimination or retaliation. See McDonnell Douglas, 411 U.S. at 802; Donaldson,

495 S.W.3d at 438. To raise a fact issue regarding pretext, the nonmovant must present evidence

indicating that the non-discriminatory reason given by the employer is false or not credible, and

that the real reason for the employment action was unlawful discrimination. See Donaldson, 495

S.W.3d at 438.

       Sanchez argues the RIF was a pretext for two reasons. First, he argues there was no actual

reduction in force, and the University actually created a new position for him. However, Texas

A&M University System Regulation 33.99.15, Reduction in Force for Nonfaculty Employees,

provides the “lack of funds, lack of work, [or] reorganization . . . may require [an] RIF.” The

regulation also states that an RIF need not be in “the form of elimination of jobs” and may include

a “reduction in salary.” Simply because there was no actual elimination of jobs does not show the

RIF was a pretext. As Collins’s affidavit explained, “The RIF was not ultimately implemented

because both affected employees accepted other positions within the University.” Although

Sanchez argues the University actually created a new position for him, the creation of another

position in a different department does not violate the RIF regulation. Instead, the RIF regulation

provides, “Every reasonable effort will be made by human resources offices to place dismissed

employees in comparable positions for which they are qualified.” Sanchez does not argue that the

University failed to comply with the RIF regulation in a way that raises a fact issue that the RIF

was a pretext.

       Second, Sanchez argues that, because the Banner project was merely delayed and not

eliminated, the University did not need to eliminate the Banner project positions. Sanchez cites to

evidence showing that after he was demoted, the University resumed the Banner project,

completed the project two years after his demotion, and even had him work on the project. The

delay in the Banner project that Sanchez describes is consistent with the University’s explanation
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of the need for the RIF because there was no work for Sanchez to do on the Banner project for

some time after August 31, 2014. The evidence Sanchez cites establishes he resumed working on

the Banner project a year after the Banner project demotion. Thus, Sanchez’s evidence is consistent

with the reason given for the RIF; at the time of the Banner project demotion, there was no work

for Sanchez to do on the Banner project for over a year.

       Neither of Sanchez’s arguments regarding pretext demonstrate how the evidence raises a

fact issue that the non-discriminatory reason given by the University is false or not credible, and

that the real reason for the employment action was unlawful discrimination. See Donaldson, 495

S.W.3d at 438. We hold Sanchez has failed to produce evidence showing the University’s

legitimate non-discriminatory reason for the Banner project demotion was actually a pretext for

discrimination or retaliation. See McDonnell Douglas, 411 U.S. at 802; Donaldson, 495 S.W.3d at

438. We therefore conclude the trial court did not err by dismissing Sanchez’s claims to the extent

they were based on the Banner project demotion.

                                          CONCLUSION

       We affirm the trial court’s judgment.

                                                  Luz Elena D. Chapa, Justice




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