Opinion issued September 5, 2013.




                                        In The

                                Court of Appeals
                                       For The

                           First District of Texas
                              ————————————
                                NO. 01-13-00052-CV
                             ———————————
       FORT BEND INDEPENDENT SCHOOL DISTRICT, Appellant
                                          V.
                         TYRA P. WILLIAMS, Appellee


                    On Appeal from the 268th District Court
                           Fort Bend County, Texas
                     Trial Court Case No. 08-DCV-164954


                           MEMORANDUM OPINION

      Tyra Williams sued her former employer, Fort Bend Independent School

District, for unlawful employment practices under the Texas Commission on

Human Rights Act. See TEX. LAB. CODE ANN. § 21.001−.556 (West 2006 & Supp.

2012). In this interlocutory appeal, the District challenges the trial court’s denial of
its combined plea to the jurisdiction and motion for summary judgment based on

immunity from suit and exhaustion of administrative remedies. We reverse and

render judgment dismissing the case.

                                     Background

      Tyra Williams worked for the Fort Bend Independent School District as a

teacher for four years before she resigned. When she resigned, Williams filed suit

alleging that she had suffered race discrimination, a hostile work environment, and

retaliation, ultimately culminating in her constructive discharge. 1 Williams is an

African-American female.

      Williams’s lawsuit alleges that she began to suffer discriminatory treatment

when she was hired to teach English at Elkins High School, a school Williams

describes as a “white school.” According to Williams, other teachers in the English

Department treated her “oddly” because of her race and suggested that she was not

qualified to teach at Elkins because she previously worked at a “black school.” At

least one student was permitted to withdraw from Williams’s class after

complaining that “he didn’t do black teachers.” Williams alleges that, when she

complained of unequal treatment to school administrators, she was subjected to a

campaign of harassment, excessive scrutiny, and unwarranted discipline. Tempers


1
      Williams initially sued the District and eleven individuals in the District’s employ;
      however, Williams later non-suited all of the individual defendants, leaving the
      District as the only remaining defendant.
                                            2
flared at one disciplinary meeting, and Williams was escorted off campus and

placed on paid administrative leave. 2

      After she was placed on administrative leave, Williams filed a charge of race

discrimination and retaliation with the EEOC. While the EEOC charge was

pending, Williams extended her absence from the school by taking temporary

disability leave to recover from anxiety, panic attacks, and depression allegedly

caused by work-related stress. When Williams returned from temporary disability

leave, there was no longer a teaching position for her at Elkins. Williams alleges

that the District discriminated and retaliated against her by removing her from her

position at Elkins and replacing her with a less qualified white teacher. Williams

also claims that she was treated differently from other similarly situated teachers

because another teacher in the English Department, who is white, was not replaced

after taking a leave of absence.

      While she could not return to Elkins, Williams was not terminated, demoted,

or paid less; instead, the District transferred her to M.R. Wood, the alternative high

school to which Williams had requested reassignment in an employee grievance

2
      The letter notifying Williams of her placement on administrative leave indicated
      that the leave was “due to an investigation of [Williams’s] alleged misconduct.” A
      grievance hearing officer instructed that the letter should be removed from
      Williams’s file because the reason for the placement was not to allow further
      investigation but was to allow Williams to “cool off.” The grievance hearing
      findings indicate that the leave period was for the remainder of the school day.
      Williams did not return the following day because she took temporary disability
      leave.
                                          3
form. Williams alleges that she had to take another leave of absence when an M.R.

Wood student verbally abused and physically intimidated her. Williams’s doctor

authorized her return to work the next school year “in a non-alternative setting,”

but the District initially placed her back at M.R. Wood. The District claimed the

assignment was a mistake and offered Williams her choice of teaching positions

from a list of schools with job openings. Williams filed an amended charge with

the Equal Employment Opportunity Commission, alleging that the District’s

decision to reassign her to M.R. Wood was an act of retaliation.

      Ultimately Williams was placed at Willowridge High School. Williams

contends that the environment at Willowridge was immediately hostile, and she

attributes that hostility to her opposition to race-based discrimination. After about

six months at Willowridge, Williams, along with seventeen other teachers, was

placed on a staff-reduction list for the next school year. Williams alleges that she

was unfairly targeted for reduction. In support of her allegation, she offered the

affidavit of a Willowridge parent recalling a conversation in which the

Willowridge principal told the parent that Williams had been transferred to the

school due to her disciplinary record and probably would not be returning. The

District, on the other hand, presented evidence that the staff-reduction list was

based primarily on the identification of teachers with the fewest years of

continuous employment along with the school’s needs. The District’s evidence also


                                         4
showed that the list included teachers of varying races. The District’s contract with

its teachers allows reassignments to other schools in the District.

      Williams’s inclusion on the staff-reduction list did not result in her

termination; instead, she was offered another teaching contract for the next school

year and was reassigned to another high school. This time, however, the school

was located more than sixty miles from Williams’s home. Williams resigned

during the summer break before the new school year.

      The District challenged the trial court’s jurisdiction to hear Williams’s

claims in a combined plea to the jurisdiction and motion for summary judgment.

The District alleged that Williams could not establish a prima facie case of

discrimination or retaliation and failed to exhaust her administrative remedies with

respect to her hostile work environment and constructive discharge claims. The

District alternatively argued that neither race-based discrimination nor retaliation

motivated its employment decisions. After considering the motion, Williams’s

response, the evidence, and the arguments of counsel, the trial court denied the

District’s plea. This appeal followed.

                               Standards of Review

      Although the District challenged the trial court’s jurisdiction in a combined

plea to the jurisdiction and motion for summary judgment, we review the filing as




                                          5
a plea to the jurisdiction. 3 See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(8)

(West Supp. 2012). A plea to the jurisdiction is a dilatory plea that seeks dismissal

of a case for lack of subject-matter jurisdiction. Harris Cnty. v. Sykes, 136 S.W.3d

635, 638 (Tex. 2004). Whether a court has subject-matter jurisdiction is a question

of law. Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex.

2004); Tex. Natural Res. Conservation Comm’n v. IT-Davy, 74 S.W.3d 849, 855

(Tex. 2002).

      Typically, a plea to the jurisdiction challenges whether the plaintiff has

alleged facts that affirmatively demonstrate the trial court’s jurisdiction to hear the

case. See Miranda, 133 S.W.3d at 226. But a plea to the jurisdiction can also

challenge the existence of those jurisdictional facts. Id. In such cases, we consider

evidence as necessary to resolve the jurisdictional issue, even if that evidence also

implicates the merits of the case. Id.

      The trial court’s review of a plea challenging the existence of jurisdictional

facts “mirrors that of a traditional summary judgment motion.” Mission Consol.

Indep. Sch. Dist. v. Garcia (Garcia II), 372 S.W.3d 629, 635 (Tex. 2012)

3
      Section 51.014(a)(8) of the Civil Practice and Remedies Code permits
      interlocutory appeals from the denial of a governmental unit’s challenge to the
      trial court’s subject-matter jurisdiction. TEX. CIV. PRAC. & REM. CODE ANN. §
      51.014(a)(8) (West Supp. 2012); Tex. Dep’t of Criminal Justice v. Simons, 140
      S.W.3d 338, 349 (Tex. 2004) (observing that interlocutory appeal may be taken
      under section 51.014(a)(8) whether jurisdictional argument is presented in a plea
      to jurisdiction or summary-judgment motion because right of appeal is tied to
      substance of issue raised and not to any particular procedural vehicle).
                                          6
(referencing TEX. R. CIV. P. 166a(c)); Miranda, 133 S.W.3d at 228 (same). The

defendant must first meet the summary-judgment proof standard for its assertion

that the trial court lacks jurisdiction; once the defendant meets its burden, the

plaintiff is required to show that a disputed material fact exists regarding the

jurisdictional issue. Garcia II, 372 S.W.3d at 635; Miranda, 133 S.W.3d at 228. “If

a fact issue exists, the trial court should deny the plea. 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.” Garcia II, 372 S.W.3d at 635.

                       Immunity from Suit and the TCHRA

      Governmental immunity deprives a trial court of jurisdiction over suits

against a governmental unit absent the legislature’s consent to suit. See Garcia II,

372 S.W.3d at 636; City of Houston v. Rhule, 377 S.W.3d 734, 744 (Tex. App.—

Houston [1st Dist.] 2012, no pet.). The legislature has waived immunity from suit

for employment discrimination and retaliation claims falling under the Texas

Commission on Human Rights Act. See TEX. LAB. CODE ANN. § 21.051 (making it

unlawful for “employer” to discriminate); § 21.055 (making it unlawful for

“employer” to retaliate); § 21.002(8)(D) (defining “employer” to include

governmental entities); Mission Consol. Indep. Sch. Dist. v. Garcia (Garcia I), 253

S.W.3d 653, 660 (Tex. 2008) (concluding that legislature waived immunity for

suits against school districts when plaintiff states claim for TCHRA violation).


                                            7
      Relevant here, the TCHRA prohibits an employer from refusing to hire,

discharging, or otherwise discriminating against an employee in connection with

compensation or the terms, conditions, or privileges of employment on the basis of

race. See TEX. LAB. CODE ANN. § 21.051(1). An employer also commits an

unlawful employment practice by retaliating or discriminating against a person

who makes or files a charge of discrimination under the TCHRA. TEX. LAB. CODE

ANN. § 21.055(2). Texas courts evaluate discrimination and retaliation claims

using federal employment discrimination law, as the legislature, in adopting the

TCHRA, intended to correlate state law with federal law. Autozone, Inc. v. Reyes,

272 S.W.3d 588, 592 (Tex. 2008) (citing Ysleta Indep. Sch. Dist. v. Monarrez, 177

S.W.3d 915, 917 (Tex. 2005)); see also Shackelford v. Deloitte & Touche, LLP,

190 F.3d 398, 403 n.2 (5th Cir. 1999) (“[T]he law governing claims under the

TCHRA and Title VII is identical.”).

      There are two alternative methods by which a plaintiff can prove

discrimination or retaliation. Quantum Chem. Corp. v. Toennies, 47 S.W.3d 473,

476−77 (Tex. 2001) (adopting U.S. Supreme Court’s alternative analyses for

employment discrimination cases); Dias v. Goodman Manufacturing Co., 214

S.W.3d 672, 676−77 (Tex. App.—Houston [14th Dist.] 2007, pet. denied)

(applying same analyses in retaliation case). The first method is by direct evidence

of the employer’s actions or words. Quantum Chem., 47 S.W.3d at 476. The


                                         8
second method―the McDonnell Douglas burden-shifting scheme―applies in

cases like this one, involving only circumstantial evidence of discrimination or

retaliation. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802−05, 93 S. Ct.

1817, 1824−26 (1973); see also Garcia II, 372 S.W.3d at 634. Under McDonnell

Douglas, courts presume discrimination or retaliation if the plaintiff meets her

initial burden of establishing a prima facie case. McDonnell Douglas, 411 U.S. at

802, 93 S. Ct. at 1824; Garcia II, 372 S.W.3d at 634. The trial court has no

jurisdiction if the plaintiff fails to demonstrate the prima facie elements of her

case.4 Garcia II, 372 S.W.3d at 635−38.

      “Although the precise elements of this [prima facie] showing will vary

depending on the circumstances, the plaintiff’s burden at this stage of the case ‘is

not onerous.’” Id. at 634. The plaintiff “must plead the elements of her statutory

cause of action—here the basic facts that make up the prima facie case—so that the

court can determine whether she has sufficiently alleged a TCHRA violation,” but



4
      Once the plaintiff establishes a prima facie case under McDonnell Douglas, the
      burden shifts to the defendant to rebut the presumption of discrimination with
      evidence of a legitimate, nondiscriminatory reason for the employment action. 411
      U.S. at 802, 93 S. Ct. at 1824. It then becomes the plaintiff’s burden to show that
      the reason offered was a pretext for discrimination. Id. at 807, 93 S. Ct. at 1826–
      27; Quantum, 47 S.W.3d at 477. However, the Texas Supreme Court determined
      in Garcia II that only the prima facie elements of the plaintiff’s case are
      jurisdictional. 372 S.W.3d at 635−38. Because our review of this interlocutory
      appeal is limited to the trial court’s determination of its own subject-matter
      jurisdiction, we do not consider any matters beyond whether Williams presented a
      prima facie case of discrimination or retaliation.
                                           9
“she will only be required to submit evidence if the [employer] presents evidence

negating one of those basic facts.” Id. at 637.

A.     Race discrimination

       According to Williams, the District violated the TCHRA’s prohibition

against race-based discrimination. See TEX. LAB. CODE ANN. § 21.051. Williams’s

petition states in pertinent part:

              . . . [Williams] was fully qualified to perform her duties as an
       English teacher for [the District]. [Williams], a black female, was
       treated differently than similarly situated persons who were non-black
       by being subjected to hostile treatment by non-black employees and
       subjected to different rules based upon her race and/or color.

               [Williams] was subjected to excessive scrutiny while other non-
       black employees were not being treated in the same or similar manner
       . . . . Additionally, [Williams] was replaced by a non-certified white
       teacher while out on leave, where similarly situated teachers were not
       treated in the same manner. By being replaced, [Williams] was subject
       to adverse employment conditions. Said acts were taken against
       [Williams] because of her race. [Williams] was subject to disparate
       treatment on the basis of her race. [Williams’s] treatment was in
       violation of TCHRA.

These allegations track the elements of a prima facie claim for race discrimination

under the TCHRA, which are that Williams was (1) a member of a protected class,

(2) qualified for her teaching position, (3) subjected to an adverse employment

decision, and (4) replaced by someone outside of the protected class or treated less

favorably than similarly situated members outside of the protected class. Autozone,

272 S.W.3d at 592 (citing Ysleta Indep. Sch. Dist., 177 S.W.3d at 917).


                                          10
      The first and second elements of Williams’s prima facie case are not in

dispute in this appeal, as the District’s jurisdictional arguments relate only to the

third and fourth elements. We limit our discussion to the third element―whether

the District subjected Williams to an adverse employment decision―because it is

dispositive of the discrimination claim. The District argues that Williams’s

allegations of excessive scrutiny, replacement by a member outside of the

protected class, and constructive discharge do not rise to the level of an adverse

employment action as a matter of law. We agree.

      The District correctly asserts that, in the discrimination context, not every

employment decision is actionable as an unlawful employment practice. Anti-

discrimination laws address “ultimate employment decisions,” such as decisions on

hiring, firing, promoting, or compensating; they do not address every decision

made by employers that might have some tangential effect upon employment

decisions. See Green v. Adm’rs of Tulane Educ. Fund, 284 F.3d 642, 657 (5th Cir.

2002); Winters v. Chubb & Son, Inc., 132 S.W.3d 568, 575 (Tex. App.—Houston

[14th Dist.] 2004, no pet.). Poor performance evaluations, unjust criticism, and

being placed on probation historically are not ultimate employment decisions. See

McCoy v. City of Shreveport, 492 F.3d 551, 559 (5th Cir. 2007).

      The excessive scrutiny and unwarranted discipline alleged by Williams fall

within the category of employment decisions that are not ultimate decisions and


                                         11
thus do not contribute to her prima facie case as adverse employment decisions.

See Winters, 132 S.W.3d at 575 (“[A]dverse employment actions do not include

‘events such as disciplinary filings, supervisor’s reprimands, and even poor

performance by the employee―anything which might jeopardize employment in

the future.’”) (quoting Mattern v. Eastman Kodak Co., 104 F.3d 702, 708 (5th Cir.

2007)); Elgaghil v. Tarrant Cnty. Junior Coll., 45 S.W.3d 133, 143 (Tex. App.—

Fort Worth 2000, pet. denied) (“Ultimate employment decisions that are actionable

include decisions to hire, discharge, promote, compensate, or grant leave, but not

events such as disciplinary filings, supervisor’s reprimands, or even poor

performance reviews.”) (citing Messer v. Meno, 130 F.3d 130, 140 (5th Cir.

1997)). Williams’s allegations that the District replaced her with a Caucasian

teacher at Elkins and constructively discharged her by transferring her to a school

more than sixty miles from her home, however, require closer examination.

      We turn first to the matter of Williams’s replacement. While the word

“replaced” frequently is used as a synonym for “discharged” in employment

discrimination cases, it is undisputed in this case that the District did not terminate

Williams’s employment when she returned from her leave of absence at Elkins.

Rather, the District transferred Williams to a teaching position at another school,

M.R. Wood. In some cases, a transfer may be the equivalent of a demotion and,

hence, qualify as an adverse employment action. See Alvarado v. Tex. Rangers,


                                          12
492 F.3d 605, 612 (5th Cir. 2007) (noting that transfer can be an adverse

employment action if “the new position proves objectively worse―such as being

less prestigious or less interesting or providing less room for advancement”); see

also Scott v. Godwin, 147 S.W.3d 609, 617 (Tex. App.—Corpus Christi 2004, no

pet.) (analyzing adverse-employment-action requirement for retaliation claim

under different statute but explaining that employee must show transfer makes job

objectively worse).

      The District presented undisputed evidence that the transfer was not the

equivalent of a demotion. Williams’s title, salary, and job responsibilities were not

reduced. The District also presented evidence that Williams requested an

assignment at either M.R. Wood or one other school in the employee grievance

form she filed after being denied permission to return to Elkins. Because the

District’s evidence negated a jurisdictional fact―whether the District subjected

Williams to an adverse employment decision―it was incumbent upon Williams to

respond with evidence raising a fact issue. See Garcia II, 372 S.W.3d at 637; see

also Cox v. Waste Mgmt. of Tex., Inc., 300 S.W.3d 424, 433 (Tex. App.—Fort

Worth 2009, pet. denied) (observing, in sexual harassment case, that transfer

unaccompanied by change in salary, benefits, job responsibilities, or career

opportunities is insufficient as matter of law to qualify as adverse employment

action); Padilla v. Flying J, Inc., 119 S.W.3d 911, 915−16 (Tex. App.—Dallas


                                         13
2003, no pet.) (holding that transfer that does not result in economic harm or

significantly different job responsibilities is not actionable employment action).

She complains in this Court that M.R. Wood was “an undesirable campus

placement” and that her assignment there was “outside of her teaching

certification,” but she does not cite to any supporting evidence. For example,

beyond the bare assertion in her brief that teaching at M.R. Wood was undesirable,

Williams did not present evidence that the school was less prestigious than Elkins.

Nor did she present evidence that teaching at M.R. Wood required fewer

qualifications or involved fewer opportunities for advancement or increases in pay.

We therefore conclude that the transfer from Elkins to M.R. Wood was not an

adverse employment decision and thus does not contribute to Williams’s prima

facie case.

      The District’s same evidence influences our determination of whether

Williams satisfied the adverse employment decision element by establishing that

she was constructively discharged when she was placed on the staff-reduction list

at Willowridge and transferred to a school sixty miles away. See Winters, 132

S.W.3d at 575 (observing that proof of constructive discharge permits employee

who resigned to satisfy adverse employment decision element). “A constructive

discharge occurs when an employer makes conditions so intolerable that an

employee reasonably feels compelled to resign.” Hammond v. Katy Indep. Sch.


                                        14
Dist., 821 S.W.2d 174, 177 (Tex. App.—Houston [14th Dist.] 1991, no writ). In

determining whether an employee acted reasonably, courts consider the following

factors, singly or in combination: (1) demotion; (2) reduction in salary; (3)

reduction in job responsibilities; (4) reassignment to menial or degrading work; (5)

reassignment to work under a supervisor who subjected the plaintiff to

discriminatory or harassing behavior; (6) badgering, harassment, or humiliation by

the employer calculated to encourage the employee’s resignation, or (7) any offers

of early retirement on terms that would make the employee worse off whether or

not she accepted the offer. Winters, 132 S.W.3d at 575 (citing Barrow v. New

Orleans S.S. Ass’n., 10 F.3d 292, 297 (5th Cir. 1994)); Machado v. Goodman Mfg.

Co., L.P., 10 F. Supp. 2d 709, 719 (S.D. Tex. 1997).

      The District negated the only factual allegations in the petition that could

support Williams’s claim that her transfer constituted a constructive discharge. It

directly negated the first, second, and third factors with undisputed evidence that

Williams was not demoted, her salary was not reduced, and her job responsibilities

remained the same; the only change was her location. The District also

demonstrated that the staff-reduction list was prepared by its central administration

using staffing-allocation formulas based primarily on seniority and the school’s

needs and that Williams agreed in her teaching contract that she was subject to

reassignment within the District. This evidence negates the sixth factor―a


                                         15
humiliation calculated to encourage Williams’s resignation. Because Williams

does not allege that the District assigned her to menial or degrading tasks or made

any offers of voluntary resignation, the fourth and seventh factors also weigh

against a finding of constructive discharge.

      Williams’s response did not raise a fact issue on whether she was

constructively discharged. Although she presented evidence that she felt compelled

to resign when she was placed on the staff-reduction list at Willowridge and

subsequently transferred to a campus more than sixty miles from her home, her

subjective feelings are insufficient to raise a fact issue as to whether another

similarly situated employee reasonably would have felt compelled to resign. See

Hammond, 821 S.W.2d at 177; Robinson v. Waste Mgmt. of Tex., 122 F. App’x

756, 758 (5th Cir. 2004) (explaining that “subjective state of mind of the employee

is irrelevant” to constructive discharge analysis). Neither did Williams present any

evidence that her placement on the staff-reduction list or her reassignment to a

more distant campus was calculated by the District to encourage her resignation.

For example, there is no evidence that there were openings closer to her home or

that similarly situated white employees from Willowridge were offered positions at

schools in more desirable locations. Finally, she did not show how much farther

the new school was from her home than the other District schools where she taught




                                         16
or where she could have been assigned. 5 We therefore conclude that there is not a

fact issue with regard to whether Williams was constructively discharged.

      Accordingly, we hold that the relevant undisputed evidence presented by the

District negates the adverse employment decision element of Williams’s prima

facie case for race discrimination. Because Williams has not established a prima

facie case of race discrimination, the trial court lacks subject-matter jurisdiction

over that claim and erred in denying the District’s plea.

B.    Retaliation

      Williams’s lawsuit also includes a claim for violation of the TCHRA’s

prohibition against retaliation. See TEX. LAB. CODE ANN. § 21.055. To establish a

prima facie case of retaliation under the TCHRA, Williams had to show that: (1)

she engaged in a protected activity; (2) the District took an adverse employment

action; and (3) the District did so because of her participation in the protected

activity. Dias v. Goodman Mfg. Co., L.P., 214 S.W.3d 672, 676 (Tex. App.—

Houston [14th Dist.] 2007, pet. denied); see also Pineda v. United Parcel Serv.,

Inc., 360 F.3d 483, 487 (5th Cir. 2007). The District does not dispute that Williams

engaged in a protected activity. Again, the District’s jurisdictional challenge relates



5
      The record indicates in various places that Williams lived either in Pearland or
      near downtown Houston, but the record does not include the dates of residence at
      either place or the distance between either those places and the various schools at
      which Williams taught.
                                          17
primarily to whether Williams suffered an adverse employment action.6 Williams

responds that the District took actions that might well dissuade a reasonable

teacher from opposing discrimination by placing her on paid administrative leave,

denying her the opportunity to regain employment at Elkins, reassigning her to

M.R. Woods after a student verbally abused and physically intimidated her there,

subjecting her to excess scrutiny, placing her on the Willowridge staff-reduction

list, and reassigning her to a campus located sixty miles from her home.

      Although there is significant overlap between the facts alleged in support of

Williams’s discrimination and retaliation claims, our holding that Williams did not

suffer an adverse employment decision in the discrimination context does not

dictate the same conclusion in the retaliation context. Both federal and Texas

courts afford adverse employment actions a broader scope in the retaliation

context. See Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68, 126 S.

Ct. 2405, 2415 (2006); Montgomery Cnty. v. Park, 246 S.W.3d 610, 614 (Tex.

2007) (approving of Supreme Court’s reasoning in Burlington as applied to

retaliation claim under Texas Whistleblower Act). “An employer’s action is an

adverse employment action for purposes of a retaliation claim when it is harmful to

the point that it could ‘dissuade a reasonable worker from making or supporting a


6
      The District also challenges whether there is a causal connection between
      Williams’s protected activity and its allegedly retaliatory acts, but we do not reach
      this issue given our resolution of the retaliation claim on other grounds.
                                           18
charge of discrimination.’” Cox, 300 S.W.3d at 438 (quoting Burlington N., 548

U.S. at 57, 126 S. Ct. at 2405).

      For the reasons we stated in our discussion of Williams’s discrimination

claim, the District’s undisputed evidence that Williams never suffered any change

in title, salary, or job responsibilities and that she contractually agreed that she was

subject to reassignment within the District satisfied the District’s burden to negate

the prima facie element of an adverse employment action and shifted the burden to

Williams to raise a fact issue. She has failed to direct us to any evidence indicating

that her transfer from Elkins to M.R. Wood or her placement on the staff-reduction

list at Willowridge made her circumstances objectively worse. Likewise, although

Williams was unwilling to work at a school located sixty miles from her home, she

presented no evidence that would support a conclusion the District could dissuade

a reasonable teacher from making a discrimination claim by assigning her to a

more remote campus.

      The only arguably adverse employment action taken by the District was

placing Williams on paid administrative leave. In McCoy v. City of Shreveport, the

Fifth Circuit suggested that placing an employee on paid administrative leave may

be, but is not necessarily, evidence of adverse employment action in a retaliation

case. See 492 F.3d at 560−61. But unlike in McCoy, there is no evidence here of

how the administrative leave impacted Williams’s employment. For instance,


                                          19
Williams does not direct us to any evidence regarding what stigma accompanied

placement on administrative leave, whether she had any control over her

reinstatement, or whether placement on administrative leave negatively affected

her chances for future advancement. When she returned to work, she was assigned

to a school that she requested.

      We conclude that there is not a fact issue as to whether Williams suffered an

adverse employment action for purposes of her retaliation claim. Because Williams

has not established a prima facie case of retaliation, we hold the trial court lacks

subject-matter jurisdiction over that claim and erred in denying the District’s plea.

                     Exhaustion of Administrative Remedies

      The District further argues that the trial court lacks subject-matter

jurisdiction over Williams’s remaining claims for hostile work environment and

constructive discharge because she failed to exhaust her administrative remedies

by omitting those claims from her EEOC charge. Williams responds that her

EEOC charge, read broadly, encompassed the challenged claims, but even if it did

not, the hostile work environment and constructive discharge claims could

reasonably be expected to grow out of the investigation of the discrimination and

retaliation claims stated in the charge.7


7
      Williams also asserts that the continuing-violation doctrine saves her claims
      related to events occurring after she filed her EEOC charge, including events
      contributing to the hostile work environment and her resignation. The continuing-
                                            20
      The exhaustion of administrative remedies is a jurisdictional prerequisite to

filing suit for unlawful employment practices. See City of Waco v. Lopez, 259

S.W.3d 147, 149 (Tex. 2008); Hoffman-La Roche, Inc. v. Zeltwanger, 144 S.W.3d

438, 446 (Tex. 2004); Santi v. Univ. of Tex. Health Sci. Ctr. at Houston, 312

S.W.3d 800, 804 (Tex. App.―Houston [1st Dist.] 2009, no pet.). Under the

TCHRA, the exhaustion of administrative remedies begins with the filing of a

charge of discrimination with either the Texas Workforce Commission or the

EEOC. 8 See TEX. LAB. CODE ANN. §§ 21.202, .208, .254, .256. The charge notifies

the employer of the claim, narrows the issues, and gives the employer and the

      violation doctrine is an exception to the 180-day limitations period for filing an
      administrative charge of unlawful employment practices. Santi v. Univ. of Tex.
      Health Sci. Ctr. at Houston, 312 S.W.3d 800, 804−05 (Tex. App.—Houston [1st
      Dist.] 2009, no pet.) (observing that failure to timely file administrative complaint
      deprives trial court of subject-matter jurisdiction). Generally, the limitations
      period begins upon the unlawful act’s occurrence, not when the act’s
      consequences are felt. See Davis v. Autonation USA Corp., 226 S.W.3d 487, 491
      (Tex. App.—Houston [1st Dist.] 2006, no pet.). By relying on the continuing-
      violation doctrine, a claimant may avoid a limitations bar if she “can show a series
      of related acts, one of which falls within the limitations period[.]” Huckabay v.
      Moore, 142 F.3d 233, 238−39 (5th Cir. 1998); see also Davis, 226 S.W.3d at 493
      (explaining that, “[u]nder the continuing violation theory, a plaintiff must show an
      organized scheme leading to and including a present violation so that it is the
      cumulative effect of discriminatory practice, rather than any discrete occurrence,
      that gives rise to the cause of action.”). But the District does not argue that
      Williams asserted her hostile work environment and constructive discharge claims
      too late; rather, the District argues that Williams did not assert those claims at all.
      Because there is no issue on appeal regarding whether any of Williams’s claims
      are time barred, we do not reach the applicability of the continuing-violation
      doctrine.
8
      “[C]harges that are filed by Texas employees with the EEOC are
      contemporaneously filed with the TWC.” Prairie View A & M Univ. v. Chatha,
      381 S.W.3d 500, 504 n.4 (Tex. 2012) (citing 42 U.S.C. § 2000e−5e(d)).
                                            21
investigating agency an opportunity to resolve the dispute. Lopez v. Tex. State

Univ., 368 S.W.3d 695, 700–01 (Tex. App.—Austin 2012, pet. denied) (citing

Pacheco v. Mineta, 448 F.3d 783, 789 (5th Cir. 2006); Manning v. Chevron Chem.

Co., LLC, 332 F.3d 874, 878−79 (5th Cir. 2003)).

      The factual statement in the administrative charge is crucial because

TCHRA litigation is limited in scope to claims stated in the charge and factually

related claims that could reasonably be expected to grow out of the investigation of

the stated claims. See Lopez, 368 S.W.3d at 701; Santi, 312 S.W.3d at 805; Bartosh

v. Sam Houston State Univ., 259 S.W.3d 317, 321 (Tex. App.―Texarkana 2008,

pet. denied). Because most complaints are made by persons unfamiliar with the

rules of pleadings, courts construe the charge liberally; however, the charge must

contain adequate facts to put the employer on notice of the existence and nature of

the claims. Santi, 312 S.W.3d at 805 (citing 29 C.F.R. § 1601.12(b) (2009) (“a

charge is sufficient when . . . sufficiently precise to identify the parties, and to

describe generally the action or practices complained of”)). Courts will not read the

charge to include facts that were initially omitted. Cnty. of Travis ex rel. Hamilton

v. Manion, No. 03–11–00533–CV, 2012 WL 1839399, at *4 (Tex. App.―Austin

May 17, 2012, no pet.) (mem. op.) (citing Harris v. David McDavid Honda, 213 F.

App’x 258, 261 (5th Cir.2006) (per curiam)).




                                         22
      On her original charge form, in the space titled “DISCRIMINATION

BASED ON (Check appropriate box(es)),” Williams checked race and retaliation.

There are no boxes for hostile work environment or constructive discharge. For the

“Date(s) Discrimination Took Place,” Williams listed a seven-month period during

which she worked at Elkins. Williams did not check the box for a “continuing

violation.” Within her description of the “particulars” of her charge, Williams

stated:

      I.     I was employed by the [District] in February 2006. I had
             previously worked for the [District] and returned. My position
             is a teacher in the English Department. [The District] is a public
             school district that employs more than 15 employees.

      II.    Beginning in August 2006 and continuing I have been subjected
             to unfair disciplinary action by Barbara Whittaker, Principal.

      III.   I had complained about the environment in the English
             Department and advised Paula Jay, Department Chair, that I
             believed there was racism in the department. Jay told me that it
             may be my minority perspective but there was no racism. After
             this I began to experience the frequent and unfair disciplinary
             action.

      IV.    Whittaker came to a department meeting on September 19,
             2006. After the meeting I sent her an email and then she had me
             taken from the classroom to her office. Tim Gloster, Assistant
             Principal, brought me to the office and remained during the
             meeting. As [a] result of the meeting I was removed from the
             campus and placed on leave of absence.

      V.     I believe I have been discriminated against because of my race,
             Black, and retaliated against because of my complaints of
             racism, in violation of Title VII of the Civil Rights Act of 1964,
             as amended.
                                         23
      Williams amended her charge approximately three months later by

submitting a separate type-written page containing these allegations:

            . . . On October 17, 2006, my doctor required me to take a stress
      leave due to the harassment and mental anguish imposed on me by
      Principal Barbara Whittaker and the Assistant Principal, Tim Gloster.
      On November 3, 2006, I was informed that my services were no
      longer needed at Elkins. No reason was provided for this action. I
      attempted to discuss this issue with Mr. Alfred R. Ray, Area
      Superintendent, but to no avail.

            I was also not allowed to retrieve my personal belongings. I
      was told that my belongings would be mailed to me. However, the
      school failed to return many of my valuables back to me.

             In December 2006, I anticipated being released to work from
      my medical leave of absence . . . . However, Ms. Connie Jones,
      Human Resources Director, informed me that I had to reapply for a
      position. This was against [the District’s] policies and procedures.
      Nonetheless, I reapplied and was assigned to work at the M.R. Wood
      Alternative School’s District Expulsion Program (DEP). Ms. Lydia
      Wright, Associate Principal, informed me that she would offer me a
      position as an English III Teacher at the Thurgood Marshall High
      School. However, Fort Bend ISD denied me this opportunity with no
      reason given.

            Due to my discriminatory assignment and the hostile working
      environment at M.R. Wood Alternative School, my doctor had to put
      me out on another [leave of absence], effective January 15, 2007.

            I believe that I have been retaliated against for participating in a
      protected activity, in violation of Title VII of the Civil Rights Act of
      1964, as amended.

A.    Hostile work environment

      William’s petition alleges “campaign of harassment based on her race” and

conduct by school and District administrators that “created an intimidating, hostile

                                         24
or offensive work environment.” According to the District, Williams’s charge and

amended charge only state claims for discrimination and retaliation and do not

contain any factual allegations of hostile work environment based on race.

      The TCHRA allows suits against a governmental unit only when it

discriminates because of a protected status. TEX. LAB. CODE ANN. § 21.051; see

Tex. Dep’t of Criminal Justice v. Cooke, 149 S.W.3d 700, 704 (Tex. App.—Austin

2004, no pet.) (“The Act here allows suit against a governmental unit only when it

discriminates because of race.”) (emphasis in original). Similarly, a claim of

hostile work environment entails harassment based on the plaintiff’s protected

status. Twigland Fashions, Ltd. v. Miller, 335 S.W.3d 206, 218 (Tex. App.—

Austin 2010, no pet.); Bartosh, 259 S.W.3d at 324. Although Williams used the

term “hostile work environment” once in her amended charge, neither the charge

nor amended charge contains any suggestion that the “hostile” conditions she

suffered were based on race. Rather, the charge and amended charge detail a series

of discrete acts allegedly taken in retaliation for Williams’s original outcry of

discrimination in the Elkins English Department. Discrete acts forming the basis

for discrimination or retaliation claims should be kept conceptually distinct from

hostile work environment claims. Olivarez v. Univ. of Tex. at Austin, No. 03-05-

00781-CV, 2009 WL 1423929, at *4 (Tex. App.—Austin May 21, 2009, no pet.)

(mem. op.) (citing Brierly v. Deer Park Union Free Sch. Dist., 359 F. Supp. 2d


                                        25
275, 293 (E.D.N.Y. 2005); Parker v. State of Del. Dep’t of Pub. Safety, 11 F. Supp.

2d 467, 475 (D. Del. 1998)). Consequently, we conclude that Williams did not

state facts that give rise to a claim of severe or pervasive harassment based on her

status as a member of a protected class or facts that could reasonably be expected

to lead the EEOC to investigate a hostile work environment claim. We therefore

hold that Williams failed to exhaust her administrative remedy with respect to her

hostile work environment claim. As a result, the trial court erred in denying the

District’s plea to the jurisdiction because the trial court lacked jurisdiction over

Williams’s hostile work environment claim.

B.    Constructive discharge

      Williams’s petition also includes a separately stated claim against the

District for constructive discharge. Constructive discharge occurs when an

employer makes conditions so intolerable that an employee reasonably feels

compelled to resign. See Baylor Univ. v. Coley, 221 S.W.3d 599, 605 (Tex. 2007)

(citing Penn. State Police v. Suders, 542 U.S. 129, 141, 124 S. Ct. 2342, 2351

(2004), for its definition of “constructive discharge” as “an employee’s reasonable

decision to resign because of unendurable working conditions”). Williams’s charge

does not include any allegation that her working conditions were intolerable.

Moreover, the constructive-discharge facts alleged by Williams in her petition

relate exclusively to her employment at Willowridge. She asserts that the working


                                        26
conditions at Willowridge became intolerable when school administrators placed

her on the staff-reduction list before other less qualified teachers with fewer years’

experience and subjected her unwarranted scrutiny and criticism. But the facts

stated in Williams’s charge and amended charge concern only her employment at

Elkins and M.R. Wood. We conclude that the charge contains no allegations that

would serve to put the District on notice that Williams was asserting a claim for

constructive discharge arising from her employment at Willowridge. We further

conclude that the factual allegations in the charge and amended charge could not

reasonably be expected to lead the agency to investigate a constructive discharge

claim; in fact, the agency’s investigation had concluded and Williams had received

her right to sue letter before the conduct giving rise to her resignation occurred.

      Consequently, we conclude that Williams failed to exhaust her

administrative remedy regarding her constructive discharge claim. As a result, the

trial court lacked jurisdiction over Williams’s constructive discharge claim, and we

hold that the trial court erred in denying the District’s jurisdictional plea.

                                      Conclusion

      Having concluded that the trial court lacks subject-matter jurisdiction over

Williams’s claims, we reverse and render judgment dismissing the case.




                                           27
                                            Harvey Brown
                                            Justice

Panel consists of Justices Jennings, Brown, and Huddle.




                                       28
