Opinion filed August 30, 2018




                                      In The


        Eleventh Court of Appeals
                                   __________

                                No. 11-16-00104-CV
                                    __________

                 CHRISTOPHER WERNERT, Appellant
                                         V.
                         CITY OF DUBLIN, Appellee

                     On Appeal from the 266th District Court
                              Erath County, Texas
                        Trial Court Cause No. CV-32924


                                   OPINION
      This is an appeal from a summary judgment in an employment
discrimination/retaliation case. Christopher Wernert sued his former employer, the
City of Dublin, complaining of unlawful discrimination and retaliation under the
Texas Commission on Human Rights Act (“TCHRA”). See TEX. LAB. CODE ANN.
§§ 21.001–.556 (West 2015 & Supp. 2017).            Wernert alleged that the City
discriminated and retaliated against him because of his physical disability. The City
filed a “Motion for Summary Judgment Asserting a Plea to the Jurisdiction.” The
City alleged in the motion that Wernert failed to pursue requisite administrative
remedies prior to filing suit. The City also asserted that Wernert failed to establish
a prima facie case for his discrimination and retaliation claims. The trial court
granted the City’s motion for summary judgment without specifying the grounds
upon which it was based. Wernert challenges the summary judgment in three issues.
We affirm.
                                 Background Facts
      The City hired Wernert as a police officer in 2010. He suffered a serious knee
injury on the job in February 2011 when he slipped and fell on an icy street while
directing traffic.    Wernert’s treating physician determined that he suffered
permanent impairment as a result of the injury. Wernert contends that his injury is
continuing in nature and that it substantially limits his ability to run, jump, climb,
lift heavy objects, kneel, and stoop. Additionally, Wernert took pain medication for
his knee that prevented him from carrying a gun or driving while on duty.
      Prior to the injury, Wernert performed both patrol duties and investigative
duties. Upon his return to work after the injury, Wernert performed full-time
investigative duties but no patrol duties because of his physical limitations. Wernert
asserts that in January 2013, Police Chief Lannie Lee called him a “cripple.”
Wernert made a complaint to the City’s human resources department about Chief
Lee’s statement. Wernert asserts that in February 2013, Chief Lee unilaterally
changed Wernert’s job duties to require him to perform patrol duties again. Wernert
contends that his physical disabilities continued to prevent him from performing
patrol duties at that time.
      In May 2013, Wernert filed a “Charge of Discrimination” form with the Equal
Employment Opportunity Commission (EEOC). For “Cause of Discrimination,”
Wernert checked boxes for “retaliation,” “disability,” and “other” which he
designated as “Texas Labor Code.” As for the “Date Discrimination Took Place,”
                                          2
Wernert indicated that it began in January 2013. He did not list a date for “latest”
with respect to the “Date Discrimination Took Place,” but he checked a box for
“continuing action.” He alleged in the Charge that the City was discriminating
against him because of his disability. The gist of Wernert’s complaint in the Charge
was that the City was discriminating and retaliating against him by requiring him to
perform patrol duties when a physical disability prevented him from doing so and
that the City was not going to promote him to the position of Chief of Police when
the position would soon become open.
      In July 2013, new Chief of Police Shawn Fullagar placed Wernert on
involuntary leave, informing him that he needed to use his accumulated vacation and
sick time. On September 13, 2013, Chief Fullagar sent a letter to Wernert advising
him that he had used all of his accumulated leave time. The letter advised Wernert
that, unless he could return to performing all of the essential functions and physical
requirements of a police officer, he would be terminated effective September 20,
2013. Pursuant to the letter, the City terminated Wernert.
      Wernert filed the underlying lawsuit on August 8, 2014. In his petition,
Wernert alleged all of the factual matters that he had alleged in his Charge that he
filed with the EEOC in May 2013. However, he alleged some additional matters in
his petition, including events that occurred after he filed his Charge with the EEOC.
Those additional matters included Chief Fullagar requiring him in July 2013 to use
all of his accumulated leave and Chief Fullagar terminating him in September 2013.
With respect to his claim for disability discrimination, Wernert alleged that the City
violated Chapter 21 of the Texas Labor Code when it forced him to take leave and




                                          3
terminated him. 1 Wernert alleged these same two acts with respect to his retaliation
claim. 2
       The City filed its motion for summary judgment on February 3, 2016.
Because we find it to be dispositive, we direct our attention to the City’s contention
that Wernert failed to pursue available administrative remedies with respect to the
City’s actions of requiring him to use accumulated leave and terminating him. The
City alleged that these were discrete acts for which Wernert was jurisdictionally
required to file an additional Charge of Discrimination. There is no dispute that
Wernert did not file an additional Charge of Discrimination after these acts occurred
or that he attempted to amend his previous Charge of Discrimination to allege these
subsequent events. Wernert asserts that he was not required to file an additional


       1
        Wernert pleaded his claim for disability discrimination as follows:
               51. The City violated Chapter 21 of the Texas Labor Code when it discriminated
       against and terminated Mr. Wernert because of his disability.
               52. The City is a governmental entity.
               53. Mr. Wernert has a disability, which affects one or more major life activities.
               54. Mr. Wernert is able to perform the essential functions of his job.
                55. Mr. Wernert was discriminated against and suffered adverse actions because
       of his disability, including being forced to take leave and ultimately being terminated.
                56. Because of the actions of the Defendant, Plaintiff suffered damages within the
       jurisdictional limits of this Court.
       2
        Wernert pleaded his claim for retaliation as follows:
              59. Defendant violated Chapter 21 of the Texas Labor Code when it forced Mr.
       Wernert to take leave and ultimately terminated [him] from the Department.
               60. The City is a local governmental entity.
               61. Mr. Wernert opposed disability discrimination when he complained about Mr.
       Lee’s statements to [human resources].
              62. Mr. Wernert suffered adverse actions when he was forced to take leave from
       work and ultimately was terminated from the Department because of his complaint.
                63. Because of the actions of the Defendant, Plaintiff suffered damages within the
       jurisdictional limits of this Court.

                                                    4
Charge of Discrimination because his suspension and termination were directly
related to his previous Charge of Discrimination.
                                        Analysis
      Governmental units, including cities, are immune from suit unless the state
consents. Alamo Heights Indep. Sch. Dist. v. Clark, 544 S.W.3d 755, 770 (Tex.
2018); see Harris Cty. v. Sykes, 136 S.W.3d 635, 638 (Tex. 2004) (citing Wichita
Falls State Hosp. v. Taylor, 106 S.W.3d 692, 694 n.3 (Tex. 2003)). The TCHRA
waives immunity when the plaintiff states a claim for conduct that violates the
statute. Mission Consol. Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629, 637 (Tex.
2012) (citing TEX. LAB. CODE ANN. § 21.254). Additionally, before a plaintiff can
maintain a suit for employment discrimination under the TCHRA, the plaintiff first
must file a complaint of employment discrimination with the Texas Workforce
Commission’s civil rights division or with the EEOC. Prairie View A & M Univ. v.
Chatha, 381 S.W.3d 500, 502–03 (Tex. 2012); Harris Cty. Hosp. Dist. v. Parker,
484 S.W.3d 182, 192–93 (Tex. App.—Houston [14th Dist.] 2015, no pet.); see LAB.
§ 21.201. The complaint “must be filed not later than the 180th day after the date
the alleged unlawful employment practice occurred.” LAB. § 21.202(a).
      Section 21.202’s administrative filing requirement is “a mandatory statutory
requirement that must be complied with before filing suit,” and claims against
governmental entities that are not timely filed are jurisdictionally barred. Chatha,
381 S.W.3d at 514 (citing TEX. GOV’T CODE ANN. § 311.034 (West 2013)
(“Statutory prerequisites to a suit, including the provision of notice, are jurisdictional
requirements in all suits against a governmental entity.”)). Accordingly, Wernert’s
compliance with the TCHRA’s administrative filing requirement is a matter bearing
on the City’s immunity from suit. See Chatha, 381 S.W.3d at 514; Parker, 484
S.W.3d at 192–93.


                                            5
        Immunity from suit generally bars actions against governmental entities
unless the legislature expressly consents to suit. Reata Constr. Corp. v. City of
Dallas, 197 S.W.3d 371, 375 (Tex. 2006); Tooke v. City of Mexia, 197 S.W.3d 325,
332 (Tex. 2006).          Immunity from suit deprives the courts of subject-matter
jurisdiction and thus completely bars the plaintiff’s claims. Wichita Falls State
Hosp., 106 S.W.3d at 696. Whether a court has subject-matter jurisdiction is a legal
question that we review de novo. Tex. Dep’t of Parks & Wildlife v. Miranda, 133
S.W.3d 217, 226 (Tex. 2004); Ector Cty. v. Breedlove, 168 S.W.3d 864, 865 (Tex.
App.—Eastland 2004, no pet.).
        Immunity from suit may be asserted through a plea to the jurisdiction or other
procedural vehicle, including a motion for summary judgment. Clark, 544 S.W.3d
at 770 (citing Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000)). A
jurisdictional plea may challenge the pleadings, the existence of jurisdictional facts,
or both. Id. In this appeal, the City is challenging the existence of jurisdictional
facts. 3 If the governmental unit challenges the existence of jurisdictional facts, we
consider the relevant evidence submitted. Miranda, 133 S.W.3d at 227. The
standard of review mirrors that of a traditional motion for summary judgment.
Clark, 544 S.W.3d at 771 (citing Miranda, 133 S.W.3d at 225–26).                                 If the
governmental unit’s evidence shows that the trial court lacks jurisdiction, then the
plaintiff must show that there is a disputed material fact on the issue. See Miranda,
133 S.W.3d at 228. In determining whether a material fact issue exists, we must
take as true all evidence favorable to the plaintiff, indulging every reasonable
inference and resolving any doubts in the plaintiff's favor. Clark, 544 S.W.3d at
771. If a fact issue exists, the trial court should deny the plea. Garcia, 372 S.W.3d


        3
      We note that Wernert did not plead any jurisdictional facts with respect to his compliance with the
TCHRA’s administrative filing requirement.

                                                   6
at 635. But if the relevant evidence is undisputed or the plaintiff fails to raise a fact
question on the jurisdictional issue, the trial court rules on the plea as a matter of
law. Id.
      The TCHRA “is a comprehensive fair employment practices act and remedial
scheme, modeled after Title VII of the federal Civil Rights Act of 1964 (Title VII),
that provides the framework for employment discrimination claims in Texas.”
Chatha, 381 S.W.3d at 502–03 (footnote omitted). “The TCHRA was ‘enacted to
address the specific evil of discrimination and retaliation in the workplace,’ as well
as to coordinate and conform with federal anti-discrimination and retaliation laws
under Title VII.” Id. at 504. Because the legislature intended for state law to
correlate with federal law in employment discrimination cases, Texas courts have
frequently looked to federal law for guidance. See id. at 505. As noted by the 5th
Circuit in McClain v. Lufkin Industries, Inc.:
      Failure to exhaust [administrative remedies] is not a procedural
      ‘gotcha’ issue. It is a mainstay of proper enforcement of Title VII
      remedies. . . .
             ....
            Courts should not condone lawsuits that exceed the scope of
      EEOC exhaustion, because doing so would thwart the administrative
      process and peremptorily substitute litigation for conciliation.
519 F.3d 264, 272–73 (5th Cir. 2008).
      The City relies on National Railroad Passenger Corp. v. Morgan, 536 U.S.
101, 114 (2002), to assert that Wernert was required to file a subsequent
administrative charge with the EEOC or the TWC after he was required to use his
accumulated leave and after the City terminated him. The Supreme Court held in
Morgan that each discrete incident of discrimination—such as termination, failure
to promote, denial of transfer, or refusal to hire—and each retaliatory adverse
employment decision constitutes a separate actionable unlawful employment
                                           7
practice. 536 U.S. at 114. Discrete discriminatory acts are not actionable if time-
barred, and each discrete discriminatory act starts a new clock for filing charges
alleging that act. Id. at 113. Thus, as was the case in Parker, if a plaintiff filed his
first EEOC Charge on September 28, 2012, any claim regarding discrete
discriminatory acts occurring before April 1, 2012 (180 days before the EEOC
Charge was filed) would be untimely. See Parker, 484 S.W.3d at 193.
      The City is relying on Morgan for a somewhat different purpose. Rather than
trying to foreclose a claim for conduct occurring prior to the filing of the
administrative claim, the City relies on Morgan to assert that Wernert had to file an
additional administrative claim for acts occurring after the filing of the initial
administrative claim. There is a recent law review article addressing the impact of
Morgan on the requirement to file a subsequent or amended EEOC Charge for
conduct occurring after the initial EEOC charge. Lawrence D. Rosenthal, To File
(Again) or Not to File (Again): The Post-Morgan Circuit Split Over the Duty to File
an Amended or Second EEOC Charge for Claims of Post-Charge Employer
Retaliation, 66 Baylor L. Rev. 531 (2014). Rosenthal notes that some federal
circuits have relied on Morgan to require either an additional or amended
administrative claim for discrete discriminatory acts occurring after the initial
charge. Id. at 553–60; see Richter v. Advance Auto Parts, Inc., 686 F.3d 847, 852
(8th Cir. 2012); Martinez v. Potter, 347 F.3d 1208, 1210 (10th Cir. 2003) (relying
upon Morgan to hold that each incident of discrimination and each retaliatory
employment decision constitutes a separate actionable unlawful employment
practice for which administrative exhaustion is required for each act).
      Rosenthal opined that the Fifth Circuit may be “heading in [the] direction” of
the Eighth Circuit and the Tenth Circuit on this question. 66 Baylor L. Rev. at 552
n.156, 560–61. Rosenthal cited Simmons-Myers v. Caesars Entertainment Corp.,
515 F. App’x 269, 273 (5th Cir. 2013), for this proposition. Id. at 561. In Simmons-
                                           8
Myers, the plaintiff filed an EEOC charge alleging she was the victim of gender
discrimination. 515 F. App’x at 271. After filing the charge, the plaintiff’s position
was eliminated. Id. at 272. Despite losing her job, the plaintiff never filed another
administrative charge. Id. Relying on Morgan, the court stated that the plaintiff’s
“termination was a separate employment event for which [the plaintiff] was required
to file a supplemental claim, or at the very least, amend her original EEOC charge.”
Id. at 273.
        We note that the opinion in Simmons-Myers is designated as unpublished and
“not precedent” as per Rule 47.5.4 of the Fifth Circuit Rules. But see FED. R.
APP. P. 32.1 (permitting citation to unpublished federal judicial opinions issued after
January 1, 2007). However, the facts in Simmons-Myers are similar to the facts in
this appeal. On issues of federal law, we are bound only by the decisions of the
United States Supreme Court and the Texas Supreme Court. Penrod Drilling
Corp. v. Williams, 868 S.W.2d 294, 296 (Tex. 1993). We may, however, look to
decisions of other federal courts such as the Fifth Circuit for persuasive authority on
federal questions. Id.; see Pidgeon v. Turner, 538 S.W.3d 73, 83 (Tex. 2017), cert.
denied, 138 S. Ct. 505. Because of the analogous nature of Simmons-Myers, we
believe that its analysis is relevant to this appeal.
        The female plaintiff in Simmons-Myers filed an EEOC charge alleging gender
discrimination based on the allegation that male co-workers had received
preferential treatment. Simmons-Myers, 515 F. App’x 269 at 271. The employer
subsequently terminated the plaintiff. Id. at 272. The plaintiff filed suit against the
employer alleging gender discrimination as a basis for her post-charge termination
as well as retaliation.4 Id. Citing Morgan, the Fifth Circuit concluded that the


        4
          The plaintiff in Simmons-Myers also alleged racial discrimination. The Fifth Circuit’s treatment
of the plaintiff’s racial discrimination claim is not relevant to our analysis.

                                                    9
plaintiff in Simmons-Myers was required to either file a supplemental administrative
charge or amend her original administrative charge even though she had alleged
gender discrimination in her EEOC charge. Id. at 273.
      In this appeal, the City required Wernert to use accumulated leave and
terminated him after he filed his EEOC charge alleging discrimination based upon
his physical disability. Like the plaintiff in Simmons-Myers, Wernert did not file a
supplemental EEOC charge or amend his original EEOC charge after these discrete
employment actions occurred. If the holding in Simmons-Myers were controlling,
Wernert’s failure to file either an amended or supplemental administrative charge
would preclude his recovery under Morgan. For the reasons expressed in Simmons-
Myers, we agree with the City’s position that Wernert’s claims are precluded
because he did not file an administrative charge for these discrete acts that occurred
after his previous EEOC charge. See Martinez, 347 F.3d at 1210 (cited by Simmons-
Myers).
      The court in Simmons-Myers cited its previous decision in Gupta v. East Texas
State University, 654 F.2d 411, 414 (5th Cir. 1981). Wernert cites Gupta as a basis
for overturning the summary judgment. Some of our sister courts have recognized
Gupta as creating an exception to the requirement to pursue administrative remedies
for a retaliation claim arising out of a previously filed administrative charge. See
Metro. Transit Auth. of Harris Cty. v. Douglas, 544 S.W.3d 486, 495–99 (Tex.
App.—Houston [14th Dist.] 2018, pet. filed); Parker, 484 S.W.3d at 193, Lopez v.
Tex. State Univ., 368 S.W.3d 695, 705 (Tex. App.—Austin 2012, pet. denied).
Under Gupta, “there is an exception to the exhaustion requirement when a retaliation
claim grows out of a previously filed EEOC charge.” Lopez, 368 S.W.3d at 705. As
noted in Lopez, some courts have questioned the viability of the Gupta exception
after Morgan. 368 S.W.3d at 710 n.5 (citing Sapp v. Potter, 413 F. App’x 750, 752–
53 n.2 (5th Cir. 2011)). And in Simmons-Myers, the court noted “that Gupta may
                                         10
no longer be applicable after the Supreme Court’s decision in Morgan.” 515 F.
App’x at 273 n.1.
      The Gupta exception is not applicable to this appeal because Wernert is not
just asserting a retaliation claim arising from his act of filing the EEOC claim. In
this regard, a retaliation claim is related to, but distinct from, a discrimination claim,
and one may be viable even when the other is not. Clark, 544 S.W.3d at 763. Unlike
a discrimination claim, a retaliation claim focuses on the employer’s response to an
employee’s protected activity, such as making a discrimination complaint. Id. at
763–64. Wernert did not assert a claim for retaliation arising from the filing of his
EEOC claim. Instead, he based his retaliation claim on his act of complaining to the
City’s human resources department about Chief Lee’s comment to him.
Additionally, Wernert is also asserting a claim for discrimination. The Fifth Circuit
noted in Sapp that the Gupta exception does not apply when the plaintiff asserts
claims for both retaliation and discrimination. 413 F. App’x at 753. The court made
the same determination in Simmons-Myers. 515 F. App’x at 273–74.
      Wernert asserts that the EEOC investigation was pending at the time that the
City required him to use his accumulated leave and at the time that the City
terminated him. However, he does not cite any additional documents that he filed
with the EEOC or an amended charge that he filed to administratively assert these
two discrete, post-charge employment acts that are the basis of his lawsuit against
the City. Under Morgan, 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.     See Martinez, 347 F.3d at 1210 (“[Morgan] has effected
fundamental changes to the doctrine allowing administratively unexhausted claims
in Title VII actions. . . . [S]uch unexhausted claims involving discrete employment
actions are no longer viable. Morgan . . . [teaches] that each discrete incident of


                                           11
such treatment constitutes its own ‘unlawful employment practice’ for which
administrative remedies must be exhausted.”(citing Morgan, 536 U.S. at 110–13)).
        The trial court did not err in granting the City’s motion for summary judgment
because Wernert did not pursue administrative relief for the two discrete
employment acts for which he sought damages in the underlying action. We
overrule Wernert’s first issue. We do not reach Wernert’s other appellate issues
because our resolution of his first issue is dispositive of this appeal.
                                         This Court’s Ruling
        We affirm the judgment of the trial court.




                                                           JOHN M. BAILEY
                                                           JUSTICE


August 30, 2018
Panel consists of: Willson, J.,
Bailey, J., and Wright, S.C.J. 5

Willson, J., not participating.




        5
          Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland,
sitting by assignment.

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