Opinion issued December 6, 2018




                                   In The

                            Court of Appeals
                                  For The

                        First District of Texas
                         ————————————
                            NO. 01-18-00221-CV
                         ———————————
  THE UNIVERSITY OF TEXAS – MD ANDERSON CANCER CENTER,
                         Appellant

                                     V.

                      RACHEL PHILLIPS, Appellee


                 On Appeal from the 334th District Court
                          Harris County, Texas
                    Trial Court Case No. 2017-49643


                       MEMORANDUM OPINION

     Appellee, Rachel Phillips, sued her employer, appellant, The University of

Texas – MD Anderson Cancer Center (“UTMDA”), for sex discrimination and
retaliation under the Texas Commission on Human Rights Act (“TCHRA”).1

UTMDA brings this interlocutory appeal,2 challenging the trial court’s denial of its

plea to the jurisdiction. In its sole issue, UTMDA contends that the trial court lacked

subject-matter jurisdiction over Phillips’s claims because the evidence establishes

that she did not timely exhaust her administrative remedies under the TCHRA.

      We vacate the trial court’s order and dismiss the case.

                                    Background

      In 2013, Phillips began her employment as an administrative assistant at

UTMDA. In November 2013, after having her first child and returning to work from

maternity leave, Phillips utilized a facility at UTMDA for nursing mothers each day.

Phillips alleged that, thereafter, UTMDA Department Administrator Aaron Walton

began to harass her, including waiting for her outside the facility. On one occasion,

Walton interrupted her while she was using the facility, asked to meet with her

immediately, and humiliated her by forcing her to attend a meeting with colleagues

while she was visibly “still lactating underneath her shirt.”

      Within a month after Phillips contacted the UTMDA Ombuds Office and an

ombudsperson attempted to mediate, Walton and Operations Manager Gina Dimiceli

began retaliating against Phillips by falsely accusing her of workplace violations.



1
      See TEX. LAB. CODE ANN. §§ 21.051, 21.055.
2
      See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(8).
                                          2
Despite her having been punctual to work and having received positive performance

reviews, Phillips was written up for being late to work.

      In 2014, Phillips complained to UTMDA Vice Chair Bill Plunkett. Upon her

attempt to resign, Plunkett proposed that she continue her employment and work

part-time, with the possibility of being promoted to the position of Grant Program

Coordinator. Later, however, Phillips was told that she could not be promoted

because of her childcare duties, which would not allow her to work remotely.

      In 2015, during a UTMDA party, Phillips and her husband told Walton that

they were expecting a second child, and he responded, “[T]hat is going to cost you.”

Subsequently, after Phillips returned from maternity leave, Walton again began to

harass and discriminate against her. He was resistant to her requests to use the key

to access the facility for nursing mothers. On one or more occasions, upon exiting

the facility, Phillips again found Walton standing outside the door and looking

inside. On one occasion, Walton commented to her that she was “disgusting.”

Phillips was also reprimanded for wearing maternity clothes, while other employees

were allowed to wear flip-flop sandals and to expose tattoos. After Walton and

Dimiceli began heavily scrutinizing Phillips’s attendance, conduct, and work

performance, and accused her of falsifying her “badge times,” Phillips’s

employment was terminated.




                                          3
      At a meeting on March 14, 2016, Walton, on behalf of UTMDA, presented

Phillips with an “Intent to Terminate” letter, stating, in pertinent part, as follows:

      It is my intent to terminate your employment for unacceptable conduct
      for falsification of time. . . .
      In October 2015, a complaint was received from your manager
      concerning your availability during work hours. Upon an investigatory
      audit, it revealed that between the period of October 1, 2015 and March
      1, 2016 there were approximately 28 instances where you had an
      unscheduled PTO request, did not work your scheduled shift or failed
      to badge during a shift. It also revealed that between January 1, 2016
      and March 1, 2016, you were out of the building on 10 incidents for
      periods of time ranging from 1 to 3 hours. You were clocked in and
      being paid during those times and there [were] no apparent work tasks
      that needed to be done outside the building.
      You will have an opportunity to provide a written response as to why
      this termination should not occur. . . .
      You will not be required to report to work during this time period.
      However, you will be required to remain available and fully cooperate
      with any requests for information until a final decision is communicated
      to you.
      You are required to return your identification badge and all other
      University of Texas property to me pending the final decision about
      your employment. If a decision is made not to terminate your
      employment, you will be notified of the decision and I will make
      arrangements to reinstate you and your badge and institutional property
      will be returned.

Phillips signed the letter, indicating her receipt, and signed a “Demotion/Suspension/

Termination Disciplinary Record.”

      On March 17 and 28, 2016, Phillips sent email responses to UTMDA human

resources personnel regarding her concerns that she had been the target of

discrimination.

                                           4
      On April 19, 2016, Walton, on behalf of UTMDA, sent Phillips a

“Termination Decision” letter, stating, in pertinent part, as follows:

      This Letter is to inform you of the termination of your employment with
      [UTMDA] effective immediately. The decision to terminate your
      employment was based on your violation of conduct and attendance
      expectations in accordance with [UTMDA’s] Disciplinary Action
      Policy.
      An “Intent to Terminate” memorandum was presented to you on
      3/14/2015 that outlined the violations. You were subsequently
      provided an opportunity to respond to the “Intent to Terminate”
      memorandum before a final decision was made. I reviewed your
      response and did not find that you provided new or different
      information that would change the decision to terminate your
      employment. In view of these circumstances and as noted above, your
      employment with [UTMDA] will be terminated effective 4/15/2016.
      Your employment record will also reflect that you will not be eligible
      to be rehired in the future.
      Please return your identification badge and any [UTMDA] issued
      property and equipment that is still in your possession immediately. . . .

      On October 11, 2016, Phillips filed with the Texas Workforce Commission

(“TWC”) and Equal Employment Opportunity Commission (“EEOC”) a “Charge of

Discrimination” (“TWC complaint”) against UTMDA. In her TWC complaint,

which she attached to her petition, Phillips alleged that, beginning in November 2013

and continuing until March 2016, UTMDA, through its employees, discriminated

against her on the basis of, as pertinent here, sex and that it retaliated against her by

firing her. Namely, as discussed above, her supervisor and manager subjected her

to employment actions not required of similarly situated personnel who were not

female. She was also informed that, based on her childcare duties, she could not be

                                           5
promoted. Phillips asserted that gender was the motivating factor in UTMDA’s

decision to take adverse employment action against her.              Further, UTMDA

employees retaliated against her for reporting the discriminatory actions. After she

complained to Plunkett, Walton and Dimiceli falsified allegations of work

misconduct in order to terminate her employment, and her employment was

subsequently terminated. Subsequently, the TWC issued Phillips a right-to-sue

letter, and she filed the instant lawsuit.

      UTMDA filed a plea to the jurisdiction, arguing that Phillips’s suit was barred

by sovereign immunity because she did not timely exhaust her administrative

remedies by filing a TWC complaint within 180 days of the allegedly discriminatory

acts.3 UTMDA asserted that the 180-day period begins when an employee is

informed of an allegedly discriminatory employment decision, not when that

decision comes to fruition. It asserted that the jurisdictional evidence establishes

that it informed Phillips on March 14, 2016 of its intent to terminate her employment.

Thus, the deadline for her to file any administrative complaint was September 10,

2016. Because it is undisputed that she did not file her TWC complaint until October

11, 2016, her claims are barred.




3
      See TEX. LAB. CODE ANN. § 21.202(a) (“A complaint under this subchapter must
      be filed not later than the 180th day after the date the alleged unlawful employment
      practice occurred.”).
                                             6
      In her response to the plea, Phillips argued that she timely exhausted her

administrative remedies because only a “final decision triggers the commencement

of the statutory limitations period of 180 days.” She asserted that the period

commenced when UTMDA formally and finally terminated her employment in its

April 19, 2016 “Termination Decision” letter. In the April letter, which Phillips

incorporated into her response, UTMDA noted that it had previously provided

Phillips an opportunity to respond “before a final decision was made” and that her

employment would be terminated “effective 4/15/2016.” The letter also states that

Phillips’s employment was terminated “effective immediately,” i.e., April 19, 2016.

Phillips asserted that, whether she was terminated on April 15 or 19, 2016, her

October 11, 2016 TWC complaint was filed within the 180-day limitations period.

      In its reply in support of its plea, UTMDA again argued that an adverse

employment action accrues when a plaintiff is informed of an alleged discriminatory

employment action, and not when the action comes to fruition. And, it is undisputed

that UTMDA informed Phillips on March 14, 2016 of its intent to terminate her

employment. UTMDA attached to its reply a copy of the March 14, 2016 letter.

      After a hearing, the trial court denied UTMDA’s plea to the jurisdiction.

                              Plea to the Jurisdiction

      In its sole issue, UTMDA argues that the trial court erred in denying its plea

to the jurisdiction because the evidence establishes that Phillips did not exhaust her

                                          7
administrative remedies by timely filing a TWC complaint. Thus, its immunity is

not waived, and the trial court lacked subject-matter jurisdiction over her claims.

I.    Standard of Review

      We review de novo a trial court’s ruling on a jurisdictional plea. See Ben Bolt-

Palito Blanco Consol. Indep. Sch. Dist. v. Tex. Political Subdivisions Prop./Cas.

Joint Self-Ins. Fund, 212 S.W.3d 320, 323 (Tex. 2006); City of Hous. v. Vallejo, 371

S.W.3d 499, 501 (Tex. App.—Houston [1st Dist.] 2012, pet. denied). A plea to the

jurisdiction is a dilatory plea that seeks dismissal of a case for lack of subject matter

jurisdiction. Harris Cty. v. Sykes, 136 S.W.3d 635, 638 (Tex. 2004); Villarreal v.

Harris Cty., 226 S.W.3d 537, 541 (Tex. App.—Houston [1st Dist.] 2006, no pet.).

A plea to the jurisdiction may be utilized to challenge whether the plaintiff has met

its burden of alleging jurisdictional facts or to challenge the existence of

jurisdictional facts. See Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217,

226–27 (Tex. 2004).

      Review of a plea challenging the existence of jurisdictional facts, as here,

mirrors that of a matter-of-law summary-judgment motion. Mission Consol. Indep.

Sch. Dist. v. Garcia, 372 S.W.3d 629, 635 (Tex. 2012); City of Hous. v. Guthrie, 332

S.W.3d 578, 587 (Tex. App.—Houston [1st Dist.] 2009, pet. denied) (“[T]his

standard generally mirrors that of a summary judgment under Texas Rule of Civil

Procedure 166a(c) . . . . By requiring the [political subdivision] to meet the

                                           8
summary judgment standard of proof . . . , we protect the plaintiffs from having to

put on their case simply to establish jurisdiction.”); see also TEX. R. CIV. P. 166a(c).

“[A] court deciding a plea to the jurisdiction . . . may consider evidence and must do

so when necessary to resolve the jurisdictional issues raised.” Bland Indep. Sch.

Dist. v. Blue, 34 S.W.3d 547, 555 (Tex. 2000). A court may consider evidence as

necessary to resolve a dispute over the jurisdictional facts even if the evidence

“implicates both the subject matter jurisdiction of the court and the merits of the

case.” Miranda, 133 S.W.3d at 226. 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. Id. at 228. If the defendant meets its burden to establish that

the trial court lacks jurisdiction, the plaintiff is then required to show that there is a

material fact question regarding the jurisdictional issue. Id. at 227–28. If the

evidence raises a fact issue regarding jurisdiction, the plea cannot be granted, and a

fact finder must resolve the issue. Id. On the other hand, if the evidence is

undisputed or fails to raise a fact issue, the plea must be determined as a matter of

law. Id. at 228; Garcia, 372 S.W.3d at 635.

II.   Sovereign Immunity

      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




                                            9
state consents to suit.4 Tex. Parks & Wildlife Dep’t, 133 S.W.3d at 224. UTMDA

is a governmental agency of the State of Texas; it is a “[m]edical and dental unit” of

The University of Texas System.          See TEX. EDUC. CODE ANN. §§ 61.003(5);

65.02(a)(11).    “State universities are agencies of the State and enjoy sovereign

immunity.” Bansal v. Univ. of Tex. MD Anderson Cancer Ctr., 502 S.W.3d 347,

353 (Tex. App.— Houston [14th Dist.] 2016, pet. denied) (quoting Hencerling v.

Tex. A&M Univ., 986 S.W.2d 373, 374 (Tex. App.— Houston [1st Dist.] 1999, pet.

denied)).

      The legislature has provided a limited waiver of immunity from suit for

employment discrimination and retaliation claims falling within the scope of the

TCHRA. See TEX. LAB. CODE ANN. §§ 21.051, 21.055; Prairie View A&M Univ. v.

Chatha, 381 S.W.3d 500, 513 (Tex. 2012); Garcia, 253 S.W.3d at 660. The TCHRA

provides that an employer commits an “unlawful employment practice” if, because

of race, color, disability, religion, sex, national origin, or age, the employer:

      (1)    fails or refuses to hire an individual, discharges an individual, or
             discriminates in any other manner against an individual in
             connection with compensation or the terms, conditions, or
             privileges of employment; or

4
      “Sovereign immunity” and “governmental immunity” are sometimes treated as
      interchangeable terms. See Reata Constr. Corp. v. City of Dall., 197 S.W.3d 371,
      374 n.1 (Tex. 2006). Sovereign immunity is available to the state and its agencies,
      and governmental immunity is available to political subdivisions. Harris Cty. v.
      Sykes, 136 S.W.3d 635, 638 (Tex. 2004); Univ. of Tex. M.D. Anderson Cancer Ctr.
      v. King, 329 S.W.3d 876, 878 n.1 (Tex. App.—Houston [14th Dist.] 2010, pet.
      denied).
                                           10
      (2)    limits, segregates, or classifies an employee or applicant for
             employment in a manner that would deprive or tend to deprive
             an individual of any employment opportunity or adversely affect
             in any other manner the status of an employee.

TEX. LAB. CODE ANN. § 21.051.          Further, an employer commits an unlawful

employment practice if it retaliates or discriminates against a person who opposes a

discriminatory practice or makes or files a charge or complaint. Id. § 21.055.

      “[A] claimant can bring suit under the TCHRA against a governmental entity

only after [the] claimant strictly satisfies the procedural requirements outlined in the

TCHRA.” Chatha, 381 S.W.3d at 513–14. The claimant must first file a sworn,

written complaint with the TWC “not later than the 180th day after the date the

alleged unlawful employment practice occurred.” TEX. LAB. CODE ANN. §§ 21.201–

.202; see Yeh v. Chesloff, 483 S.W.3d 108, 112–13 (Tex. App.—Houston [1st Dist.]

2015, pet. denied). This is a mandatory statutory requirement and claims that are

not timely filed are jurisdictionally barred. Chatha, 381 S.W.3d at 514; Davis v.

Autonation USA Corp., 226 S.W.3d 487, 491 (Tex. App.—Houston [1st Dist.] 2006,

no pet.).

      With respect to when an unlawful employment practice accrues, the Texas

Supreme Court has held: “Our precedent establishes that the 180–day limitations

period in the TCHRA begins ‘when the employee is informed of the allegedly

discriminatory employment decision, not when that decision comes to fruition.’”

Chatha, 381 S.W.3d at 516 (quoting Specialty Retailers, Inc. v. DeMoranville, 933
                                          11
S.W.2d 490, 493 (Tex. 1996)); see also Delaware State College v. Ricks, 449 U.S.

250, 258, 101 S. Ct. 498, 504 (1980) (“The proper focus is upon the time of the

discriminatory acts, not upon the time at which the consequences of the acts become

most painful.” (internal quotations omitted)). That an employee may have felt the

effects of discriminatory treatment later, or that the damage may continue to occur

for an extended period of time after the discriminatory treatment, does not extend

the commencement of limitations. Specialty Retailers, 933 S.W.2d at 493. This

Court has concluded that an unlawful employment practice occurs on the date that

the “terms and conditions of . . . employment [are] affected.” Davis, 226 S.W.3d at

492 (discussing Specialty Retailers, 933 S.W.2d at 491); see also TEX. LAB. CODE

ANN. § 21.051.

III.   Analysis

       We address each of Phillips’s claims to determine whether UTMDA

conclusively established its immunity from suit. See Univ. of Hous. Main Campus

v. Simons, No. 01-02-00368-CV, 2002 WL 31388906, at *1 (Tex. App.—Houston

[1st Dist.] Oct. 24, 2002, no pet.).

       A.    Sex Discrimination

       The evidence shows that Phillips asserted in her TWC complaint that the

“[l]atest” date that discrimination took place was in “March 2016.” She asserted

that in “March of 2016,” she was told to relocate her desk closer to Walton and that

                                        12
he began to “pester” her by asking her the reasons that she was frequently away from

her desk; Walton resisted her requests to use the key to access the facility for nursing

mothers; and she “sometimes” found Walton waiting for her outside the facility. In

addition, she was reprimanded for wearing jeans, which were actually maternity

clothes, although other employees were allowed to wear flip-flop sandals and to

expose tattoos.

      Phillips does not allege any gender-motivated discriminatory acts occurring

after “March 2016.” Thus, she was required to file any administrative complaint

regarding such acts, i.e., those occurring on or before March 31, 2016, within 180

days thereafter, or no later than September 27, 2016. See TEX. LAB. CODE ANN.

§§ 21.201–.202; Yeh, 483 S.W.3d at 112–13. It is undisputed that Phillips did not

file her complaint until October 11, 2016.

      Because the evidence conclusively establishes that Phillips filed her TWC

complaint more than 180 days after the discriminatory acts of which she complains,

the trial court erred in denying UTMDA’s plea to the jurisdiction as to Phillips’s

claims based on sex discrimination. See Miranda, 133 S.W.3d at 228 (holding that

if evidence is undisputed or fails to raise fact issue, plea must be determined as

matter of law).

      2.     Retaliatory Discharge




                                          13
      UTMDA argued in its plea that the evidence conclusively establishes its

immunity from Phillip’s retaliatory-termination claim because the 180-day period

began to run on March 14, 2016, the date that it informed Phillips of its intent to

terminate her employment and affected the terms and conditions of her employment,

i.e., required her to surrender her badge and UTMDA property and told her not to

report to work.

      In Specialty Retailers, the complainant alleged that her employer had

discriminated against her by favoring younger workers and continually criticizing

her and requiring her to work after hours. 933 S.W.2d at 491. On April 8, 1991, the

complainant took medical leave from her job. Id. at 492. On May 10, 1991, her

employer informed her that she was being replaced as a buyer and that, according to

company policy, she would be fired if her leave lasted longer than one year. Id. The

complainant did not return to work and was terminated on either April 8, 1992

(according to the complainant) or May 1, 1992 (according to the employer). Id. On

June 2, 1992, the complainant filed an administrative complaint, alleging that a

discriminatory employment decision had occurred on April 8, 1992. Id. The

supreme court concluded that the 180-day period “begins when the employee is

informed of the allegedly discriminatory employment decision, not when that

decision comes to fruition.” Id. at 493. The court held that, even if the termination

of the complainant’s employment in 1992 could be considered a discriminatory act,

                                         14
her complaint was nevertheless untimely because she was notified on May 10, 1991,

that it intended to terminate her if she did not return to work within one year of the

start of her medical leave. Id. Because the complainant did not file her TWC claim

within 180 days after May 10, 1991, her complaint was not timely filed. Id.

      In Davis, the complainant filed a charge of discrimination against her

employer, alleging actions that occurred between April 1, 2001 and January 2, 2002.

226 S.W.3d at 490. She further alleged that, on November 9, 2001, she was

reprimanded for not meeting performance standards and was told that she could

either transfer to a different department or be terminated. Id. at 492. She was told

to take a couple of days and think about it. Id. After accepting the transfer and a

significant decrease in her salary, she resigned. Id. at 489. On June 5, 2002, she

filed a charge of discrimination against her employer. Id. at 490. We concluded that

the date of the alleged discriminatory employment decision was November 9, 2001,

the date that the terms and conditions of the complainant’s employment were

affected. Id. at 492. We held that her complaint was untimely because she did not

file it within 180 days of November 9, 2001. Id.

      Here, the evidence is undisputed that UTMDA informed Phillips on March

14, 2016 of its intent to terminate her employment. And, Phillips was instructed to

surrender her badge and UTMDA property and told not to report to work. Thus, the

180-day administrative-filing period commenced on March 14, 2016, the date that

                                         15
Phillips was informed of UTMDA’s intent to terminate her employment, not when

the decision later came to fruition, and the date that her terms and conditions of her

employment were affected. See Specialty Retailers, 933 S.W.2d at 493; Davis, 226

S.W.3d at 492. It is undisputed that Phillips filed her TWC complaint 211 days later,

on October 11, 2016. Thus, her complaint was not filed within the requisite 180-day

period. See Specialty Retailers, 933 S.W.2d at 493; Davis, 226 S.W.3d at 492; see

also Abbott v. Rankin, No. 06-07-00149-CV, 2008 WL 5156453, at *4 (Tex. App.—

Texarkana Dec. 10, 2008, pet. denied.) (mem. op.) (holding that “limitations clock”

began to run on day employee “received news of his demotion for failure to meet

performance standards”). Because UTMDA met its burden to establish that the trial

court lacked jurisdiction, Phillips was then required to demonstrate a material fact

question regarding the jurisdictional issue. See Miranda, 133 S.W.3d at 227–28.

      Phillips argued that her TWC complaint was timely filed because the 180-day

period did not begin to run until April 15, 2016, when she received UTMDA’s

formal and final “Termination Decision.” Relying on Thurman v. Sears, Roebuck

& Co., 952 F.2d 128, 133–34 (5th Cir. 1992), she asserted that the period commences

when an employee “receives unequivocal notice of his termination or when a

reasonable person would know of [her] termination.” Phillips asserted that she

“would not know of her termination” based on the March 14, 2016 letter of “Intent

to Terminate.” Specifically, the March letter lacks unequivocal notice because it

                                         16
conditions her termination on a failure to provide a written response, and that she

did so respond. Further, the April letter states that a final decision was made, which

suggests that a final decision was not made in connection with the March letter.

      Thurman does not support Phillips’s argument because it is inapplicable to

this case.   There, the court held that a “leave of absence” did not sever the

employment relationship and did not start the statute of limitations running on a

claim of discriminatory discharge based on the filing of a claim under the Texas

Workers’ Compensation Act. 952 F.2d at 136.

      As discussed above, the limitations period applicable to Phillips’s claims

under the TCHRA commenced on March 14, 2016, when Phillips was informed of

UTMDA’s intent to terminate her employment, and not when that decision later

came to fruition, and when the terms and conditions of her employment were first

affected. See Specialty Retailers, 933 S.W.2d at 493; Davis, 226 S.W.3d at 492; see

also Johnson & Johnson Med., Inc. v. Sanchez, 924 S.W.2d 925, 929 (Tex. 1996)

(“[W]hen determining the time at which a cause of action accrues in discrimination

cases, [t]he proper focus is upon the time of the discriminatory acts, not upon the

time at which the consequences of the acts [result in termination].” (internal

quotations omitted)).

      We conclude that UTMDA established as a matter of law that Phillips did not

file her TWC complaint within 180 days of when she “first learned about the

                                         17
discriminatory acts.” See Davis, 226 S.W.3d at 492. Thus, Phillips’s discrimination

and retaliation claims are barred by sovereign immunity and the trial court lacks

subject-matter jurisdiction over the suit. Accordingly, we hold that the trial court

erred in denying UTMDA’s plea to the jurisdiction.

      We sustain UTMDA’s sole issue.

                                    Conclusion

      We vacate the trial court’s order denying UTMDA’s plea to the jurisdiction

and dismiss the case. See TEX. R. APP. P. 43.2(e).




                                             Sherry Radack
                                             Chief Justice

Panel consists of Chief Justice Radack and Justices Jennings and Bland.




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