                                                                 United States Court of Appeals
                                                                          Fifth Circuit
                                                                       F I L E D
                 IN THE UNITED STATES COURT OF APPEALS                 February 6, 2004

                          FOR THE FIFTH CIRCUIT                    Charles R. Fulbruge III
                          _____________________                            Clerk

                               No. 03-20663
                          _____________________

OLIVER MANUEL,
                                                        Plaintiff - Appellant,

versus

SANDERSON FARMS INC., Processing Division
                                                        Defendant - Appellee.


                          ---------------------

             Appeal from the United States District Court
         for the Southern District of Texas, Houston Division
                            (No. 02-CV-4837)
                         ---------------------

BEFORE HIGGINBOTHAM, SMITH, and WIENER Circuit Judges.

PER CURIAM:*

     Plaintiff–Appellant Oliver Manuel appeals the district court’s

grant    of   summary   judgment    in   favor    of    his   former   employer,

Defendant-Appellee      Sanderson    Farms,      Inc.    (“Sanderson    Farms”),

dismissing his Texas state law racial discrimination claims.                     We

affirm, albeit for different reasons.1

                         I. FACTS AND PROCEEDINGS

     *
       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this opinion should not be published and is not precedent except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.
     1
       See S&W Enters., L.L.C. v. SouthTrust Bank of Ala., NA, 315
F.3d 533, 537-38 (5th Cir. 2003)(“Summary judgment must be affirmed
if it is sustainable on any legal ground in the record, . . . . and
it may be affirmed on grounds stated or not stated by the district
court.”)(cites omitted).
      Manuel filed suit in the County Court of Law No. 2 of Brazos

County, Texas against Sanderson Farms, alleging discriminatory

discharge and hostile work environment claims under the Texas

Commission on Human Rights Act (“TCHRA”).2          Sanderson Farms had

hired Manuel in April 2000 as one of three superintendents at its

poultry processing plant in Bryan, Texas.        Each superintendent was

in charge of one of the plant’s three shifts.            Manuel, a black

male, was hired as superintendent of the second shift.           Brian Otto

and Ed Cammack, both white males, were superintendents of the first

and third shifts, respectively.

      The second shift operated from 6:00 p.m. to 2:30 a.m., but

Manuel would occasionally leave his shift early.         On July 10, 2001,

Manuel’s supervisor, David Jarrett, instructed Manuel that, from

that day on, he would be required to stay until the second shift

had ended.     (Although Jarrett did not give similar instructions to

Otto and Cammack, neither does Manuel contest the record evidence

that Otto and Cammack had no history of early departure.)              The

following week, Jarrett arrived at the plant around midnight and

discovered that Manuel had left.         Jarrett promptly recommended to

Sanderson Farms’ Division Manager, Eric Erickson, that Manuel’s

employment be terminated because of his poor performance and his

failure to follow Jarrett’s directive that he remain at work until

the   end     of   his   shift.     Erickson    agreed    with   Jarrett’s


      2
          TEX. LABOR CODE ANN. § 21.001, et seq. (Vernon 1996).

                                     2
recommendation and, on July 19, 2001, informed Manuel that his

employment at Sanderson Farms would be terminated.3

     On February 20, 2002, more than 200 days after being informed

of his discharge, Manuel filed a charge of discrimination with the

Texas Commission on Human Rights (“the Commission”) and with the

EEOC.     The Commission issued Manuel a right to sue letter on

September 26, 2002.4     Manuel filed suit in state court within 60

days after receiving the Commission’s letter, as required by Texas

Labor Code Annotated section 21.254.5   His complaint asserted only

state law causes of action.

     Sanderson Farms removed the case to federal court on the basis

of diversity, and, following an expedited discovery schedule, moved

for summary judgment on Manuel’s claims.       The district court

granted Sanderson Farms’s motion in June 2003.        In its stated

reasons, the court said that it found Manuel’s claims time-barred

     3
       Neither side disputes that the date Manuel was unequivocally
informed that his employment at Sanderson Farms would be
terminated, and not the date of his actual termination, triggers
the 180 day time limit for filing his complaint with the Texas
Commission on Human Rights.      See TEXAS LABOR CODE ANN. § 21.202
(Vernon 1996); see also Specialty Retailers, Inc. v. DeMoranville,
933 S.W.2d 490, 492-93 (Tex. 1996)(“[t]he limitations period begins
when the employee is informed of the allegedly discriminatory
employment   decision,    not   when   that   decision    comes  to
fruition”)(citing Delaware State College v. Ricks, 449 U.S. 250,
258 (1980)).
     4
         The EEOC issued Manuel a right to sue letter on October 7,
2002.
     5
       TEX. LABOR CODE ANN. § 21.254 (Vernon 1996)(“Within 60 days
after the date the right to file a civil action is received, the
complainant may bring a civil action against the respondent.”).

                                  3
under federal law, and, alternatively, that he had failed to

establish genuine issues of material fact with regards to the

merits of both his hostile work environment and discriminatory

discharge claims.      Manuel timely appealed.

                                II. ANALYSIS

A. Standard of Review

     We review de novo a grant of summary judgment.6

B. Time Bar

     The district court held Manuel’s claims to be time-barred

under 42 U.S.C.S. § 2000e-5(e), because Manuel did not file suit

within 30 days following receipt of his right to sue letter from

the Commission. 7     Section 2000e-5(e) provides, in pertinent part,

that an aggrieved party who has filed a charge of discrimination

with a state or local agency, such as the Commission, has until the

earlier    of   300   days   after   the   date   of   the   alleged   unlawful

employment practice, or 30 days after the date on which he receives

notice that the state agency has terminated its proceedings in

which to file an EEOC charge.8             As Manuel correctly points out,

the district court erred in applying section 2000e-5(e), both

because that provision controls the time for filing an EEOC charge



     6
       See Conserv Ltd. Liability Corp. v. Southwestern Bell
Telephone Co., 350 F.3d 482, 486 (5th Cir. 2003)(cites omitted).
     7
         See 42 U.S.C.S. § 2000e-5(e)(Supp. 2003).
     8
         See id.

                                       4
and not the time for filing suit, and because the TCHRA, rather

than federal law, controls whether his claims were timely filed.

       Sanderson Farms concedes that the district court erred in

applying § 2000e-5(e) but argues that Manuel’s claims are time-

barred nevertheless under the applicable limitations provision,

section 21.202 of the TCHRA.             That section requires a complainant

to file a charge of discrimination with the Commission within 180

days following the date on which the alleged unlawful employment

practice occurred, and directs the Commission to dismiss a late-

filed complaint as untimely.9             The Texas Supreme Court has held

that       “[t]his   time   limit   is    mandatory   and   jurisdictional.”10

Sanderson Farms argues that, because Manuel waited until February

20, 2002 – well over 180 days after the date on which he was

informed of his termination – to file his complaint with the

Commission, his claims are time-barred under section 21.202.


       9
      See TEX. LABOR CODE ANN. § 21.202 (Vernon 1996). Section 21.202
provides:
     (a) A complaint under this subchapter must be filed not later
     than the 180th day after the date the alleged unlawful
     employment practice occurred.
     (b) The commission shall dismiss an untimely complaint.
Id.
       10
       Specialty Retailers, Inc. v. DeMoranville, 933 S.W.2d 490,
492 (Tex. 1996); see also Texas Parks & Wildlife Dept. v. Dearing,
– S.W.3d —, 2004 WL 35543, at *4 (Tex. App. - Austin 2004, no pet.
h.)(“[a] complaint with the Commission must be filed no later than
180 days after the alleged unlawful employment practice occurred”);
Cooper-Day v. RME Petroleum Co., 121 S.W.3d 78, 83 (Tex. App. -
Fort Worth 2003, pet. filed)(“[f]ailure to timely file an
administrative complaint [under Section 21.202] deprives Texas
trial courts of subject matter jurisdiction”).

                                           5
     Manuel responds, relying on a state intermediate appellate

court case, Gorges Foodservice, Inc. v. Huerta,11 that his receipt

of the Commission’s right to sue letter creates a presumption that

his complaint was filed timely.         His reliance is misplaced: Gorges

held only that, in the absence of any evidence to the contrary, a

jury could infer from the plaintiff’s receipt of the Commission’s

right to sue letter that his complaint was timely;12 it did not hold

that issuance of a right to sue letter creates a “presumption” of

timeliness.        Additionally, at least one Texas appellate court that

addressed this precise point held that issuance of a right to sue

letter      from     the   Commission   cannot   confer   subject   matter

jurisdiction over a plaintiff’s complaint when the plaintiff has

failed to file his charge with the Commission within 180 days after

the alleged adverse employment action, as required by section

21.202.13     Because it is undisputed that Manuel did not file his

charge with the Commission until more than 180 days had elapsed



     11
        964 S.W.2d 656 (Tex. App. - Corpus Christi 1997, pet.
withdrawn).
     12
       See id. at 664 (“[w]e hold . . . that the jury could have
rationally inferred that Huerta’s complaint was timely filed from
the Commission’s action in sending him a ‘notice of right to file
civil action’ letter rather than dismissing his complaint pursuant
to 21.202 of the Labor Code”).
     13
       Guevara v. H.E. Butt Grocery Co., 82 S.W.3d 550 (Tex. App.
-San Antonio 2002, pet. denied); see also Subaru of America, Inc.
v. David McDavid Nissan, Inc., 84 S.W.3d 212, 220 (Tex.
2002)(“[c]ourts   will   not   imply  additional   authority   to
[administrative] agencies, nor may agencies create for themselves
any excess powers”).

                                        6
following the alleged act of employment discrimination, his claims

are time-barred under the TCHRA.     As such, the district court

lacked subject matter jurisdiction over his action.14

                         III. CONCLUSION

     We affirm the district court’s grant of summary judgment.

Because we hold that Manuel’s claims were time-barred, and affirm

the dismissal of his action with prejudice on that ground, we do

not reach the merits of his case.

AFFIRMED.




     14
       See Jones v. Grinnell Corp., 235 F.3d 972, 974 (5th Cir.
2001)(“[i]f a complainant fails to exhaust his state administrative
remedies, the Texas Human Rights Act jurisdictionally bars this
court from hearing the case regardless of equitable and policy
concerns”)(cites omitted).

                                7
