                                     In The

                               Court of Appeals
                   Ninth District of Texas at Beaumont
                            __________________
                              NO. 09-12-00229-CV
                            __________________

                       KURT FLOERSHEIM, Appellant

                                       V.

                  MOTIVA ENTERPRISES, LLC, Appellee

________________________________________________________________________

                    On Appeal from the 58th District Court
                          Jefferson County, Texas
                         Trial Cause No. A-189,793
________________________________________________________________________

                         MEMORANDUM OPINION

      In this appeal, we consider whether summary judgment was properly granted

in favor of an employer based on the employer’s motion for summary judgment,

which asserted that its former employee filed an age-discrimination claim outside

the applicable statutory filing period. See Tex. Lab. Code Ann. §§ 21.0015, 21.202

(West 2006) (requiring an employment discrimination claim to be filed with the

Texas Workforce Commission civil rights division “not later than the 180th day


                                        1
after the date the alleged unlawful employment practice occurred”). We hold the

trial court properly granted the employer’s motion for summary judgment.

                                     Background

      Kurt Floersheim, formerly employed by Motiva Enterprises, LLC, filed a

suit alleging that Motiva had violated the Texas Labor Code by discharging him

because of his age. See Tex. Lab. Code. Ann. § 21.051 (West 2006) (making it an

unlawful employment practice to discharge an individual because of the

employee’s age). Floersheim’s suit asserts that on June 15, 2009, Motiva informed

him that he would be terminated on November 30, 2009, as part of an overall

reduction of Motiva’s workforce. Floersheim’s deposition, which was part of

Motiva’s summary judgment proof, reflects that on June 15, 2009, Floersheim

attended a meeting with his supervisor and two other Motiva employees where he

was told that he was being laid off, effective November 30, 2009. Floersheim also

testified that the day after he learned that he was being laid off, he was told that he

could not return to the Motiva refinery where he had worked since 2006.

According to Floersheim, after he was sent home, Motiva replaced him the next

day with two younger employees. Floersheim remained on Motiva’s payroll until

November 30.



                                          2
        Motiva challenged the trial court’s jurisdiction over Floersheim’s claim by

filing a traditional and no-evidence motion for summary judgment. See Tex. R.

Civ. P. 166a(b), 166a(i). Motiva’s motion for summary judgment alleges that

Floersheim failed to file a timely administrative complaint with the Commission.

See Tex. Lab. Code Ann. § 21.202(a). According to Motiva’s motion, Floersheim

should have filed his complaint with the Commission no later than 180 days after

June 15, 2009, the date Motiva notified him that he had been included in the group

being laid off.1 Motiva’s motion also asserts that there was no evidence that

Floersheim had filed a timely administrative complaint and no evidence that any

legally recognized excuse existed to extend the statutory 180-day filing period. A

copy of the complaint Floersheim filed with the Commission, file marked June 1,

2010, is included in the summary judgment evidence; additionally, Floersheim

acknowledged during his deposition that he filed the complaint at issue on June 1,

2010.

        On appeal, Floersheim argues that the 180-day filing period did not

commence on June 15 when his supervisor told him that his employment was

        1
       Based on Motiva’s argument, Floersheim was required to file his
administrative complaint by no later than December 14, 2009. See Tex. Gov’t
Code Ann. § 311.014(b) (West 2005) (extending a period that falls on a Saturday,
Sunday, or legal holiday to include the next day that is not a weekend or legal
holiday).
                                       3
being terminated. According to Floersheim, the filing period for his case did not

commence until he received Motiva’s severance offer and learned that he had been

replaced by someone younger. Floersheim contends the date he learned of his

official termination was not conclusively established by Motiva’s summary

judgment proof. Floersheim also argues that the filing period in his case was tolled

because he was not able to obtain the information needed to determine the

existence of his claim within the 180-day period at issue, despite his diligent

efforts to do so.

      In its brief, Motiva asserts the 180-day filing period commenced on June 15,

when Floersheim learned from his supervisor that he was included in a group of

approximately thirty-five employees who would be laid off. Motiva also argues

that the date Motiva replaced Floersheim with others is not relevant to the date the

180-day filing period commenced. Finally, Motiva argues that the doctrine of

equitable tolling does not apply, but if it does apply, Floersheim cannot rely on that

defense because he failed to raise it in his pleadings.

                                 Standard of Review

      The standards governing the review of orders that grant summary judgments

are well established. “We review a summary judgment de novo.” Mann Frankfort

Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). The

                                           4
party filing a traditional motion for summary judgment has the burden to show that

no genuine issue of material fact exists on at least one element of each of the

plaintiff’s theories of recovery. Tex. R. Civ. P. 166a(c); Mann Frankfort, 289

S.W.3d at 848. In resolving whether the movant met its summary judgment

burden, we resolve every reasonable inference in favor of the non-movant and take

all evidence favorable to the non-movant as true. See Nixon v. Mr. Prop. Mgmt.

Co., Inc., 690 S.W.2d 546, 548-49 (Tex. 1985).

      The standards that apply to no-evidence motions for summary judgment are

also settled. To defeat a no-evidence motion challenging one or more elements of

the non-movant’s theories of recovery, the non-movant must produce summary

judgment evidence raising a genuine issue of material fact on each element of

recovery that movant’s no-evidence motion has challenged. Ford Motor Co. v.

Ridgway, 135 S.W.3d 598, 600 (Tex. 2004). The non-movant raises a genuine

issue of material fact by producing “more than a scintilla of evidence” establishing

the challenged element’s existence. Id. More than a scintilla of evidence exists

when the evidence is such that reasonable and fair-minded people can differ in

their conclusions. Id. at 601. If “‘the evidence offered to prove a vital fact is so

weak as to do no more than create a mere surmise or suspicion of its existence, the

evidence is no more than a scintilla and, in legal effect, is no evidence.’” Id.

                                         5
(quoting Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983)). In

determining whether the non-movant has produced more than a scintilla of

evidence, we review the evidence in the light most favorable to the non-movant,

giving credit to such evidence if reasonable jurors could and disregarding contrary

evidence unless reasonable jurors could not. See Mack Trucks, Inc. v. Tamez, 206

S.W.3d 572, 582 (Tex. 2006).


                                      Analysis


      The failure to file a timely administrative complaint creates a jurisdictional

bar to a claimant’s age-discrimination case. See Schroeder v. Tex. Iron Works, Inc.,

813 S.W.2d 483, 488 (Tex. 1991), overruled in part on other grounds by In re

United Servs. Auto. Ass’n, 307 S.W.3d 299, 310 (Tex. 2010). Therefore, Motiva’s

motion for summary judgment required the trial court to decide whether it could

exercise jurisdiction over Floersheim’s age-discrimination claim. The Texas

Supreme Court has held that the period within which an employee must file an

administrative complaint complaining of discrimination begins when the employee

is notified of a discriminatory employment decision. See Specialty Retailers, Inc. v.

DeMoranville, 933 S.W.2d 490, 493 (Tex. 1996) (“The [180-day] limitations




                                         6
period begins when the employee is informed of the allegedly discriminatory

employment decision, not when that decision comes to fruition.”).

      In Floersheim’s case, the summary judgment evidence reflects that

Floersheim was advised he was in a group of employees who were being laid off,

although he was provided that information several months before he received his

last paycheck. Nevertheless, Motiva’s decision to reduce the size of the company’s

workforce is not unlawful; however, in reducing its workforce, Motiva could not

illegally discriminate against employees who were protected from discrimination

by section 21.051 of the Texas Labor Code. See Tex. Lab. Code Ann. § 21.051.

      In the context of a layoff, the alleged discriminatory act is focused on why a

certain employee was included in the layoff. See generally Prairie View A&M

Univ. v. Chatha, 381 S.W.3d 500, 510 (Tex. 2012) (noting that in pay

discrimination cases, “the only act taken with a discriminatory motive is the pay-

setting decision”). This focus on the discrimination at issue is reflected in

Floersheim’s complaint, which alleged: “[Motiva]’s selection process for its

reduction in force resulted in the three oldest Process Engineers being laid off

(ages 50-65). No Process Engineers under the age of 40 were laid off.” The

discriminatory act identified by Floersheim’s complaint concerns the selection

process for the layoff.

                                         7
      We conclude that the allegedly discriminatory decision at issue in this case

was Motiva’s decision to include Floersheim in the group to be laid off.

Floersheim learned of that decision on June 15. Section 21.202 of the Texas Labor

Code required Floersheim to file an administrative complaint complaining of

Motiva’s decision to lay him off with the Commission within 180 days of the date

he learned of Motiva’s decision. See Specialty Retailers, 933 S.W.2d at 493

(concluding that 180-day period began when employee was told she would be fired

if medical leave lasted over one year, not when she was actually fired);

Comptroller v. Landsfeld, 352 S.W.3d 171, 178 (Tex. App.—Fort Worth 2011, pet.

denied) (concluding that 180-day period began when employee was told that if he

did not retire, he would be fired, not on the last date the employee worked for the

employer).

      While Floersheim acknowledges that he was informed on June 15 that he

was being laid off, he argues that Motiva’s decision to do so was not then official;

according to Floersheim, Motiva’s decision became official when he was

“officially terminated and replaced by someone younger or outside of his protected

class.” Floersheim cites Texas A&M University, Corpus Christi v. Vanzante, 159

S.W.3d 791, 797 (Tex. App.—Corpus Christi 2005, no pet), in support of his



                                         8
argument that a fact issue exists about when he received notice of Motiva’s

allegedly discriminatory decision.

      In Vanzante, the dean of a state university’s business school told the plaintiff

to communicate with the chair of the accounting department about a professorship

in the department. Id. at 793. The evidence showed that in April, the plaintiff

learned from the dean of the business school that he had not been selected for a job

in the accounting department. Id. Subsequently, in June, the plaintiff received a

letter from the chair of the accounting department advising that he had not been

selected for a position. Id. In Vanzante, the court of appeals held that under these

circumstances, the trial court did not err in denying the employer’s motion to

dismiss because “[t]he first unequivocal notice Vanzante received of the

University’s decision came from [the accounting chair’s] letter.” Id. at 796.

      Unlike the facts before the court in Vanzante, the evidence was undisputed

that Floersheim was told during a meeting with his supervisor that he was being

laid off. There was no evidence before the trial court that Floersheim, as a

reasonable person, believed that some other Motiva employee was in charge of

delivering the news of the layoff to him. In Floersheim’s case, the evidence

conclusively demonstrated that the filing period for Floersheim’s claim

commenced on June 15.

                                          9
      Floersheim also argues the trial court’s summary judgment is not supported

by sufficient evidence because the summary judgment record shows that he did not

receive his termination papers on June 15, and the date those documents were

received was not conclusively established. However, Floersheim’s deposition

testimony does not support his claim that he was required to sign any sort of

document formalizing Motiva’s decision terminating him; instead, his testimony

reflects that at some time after the June 15 meeting, he received a severance offer

that he refused to sign because he did not want to give up his right to litigate. In

age-discrimination cases, the filing period for the claim commences when the

employee receives notice of the allegedly discriminatory employment decision, not

when that decision comes to fruition. Specialty Retailers, 933 S.W.2d at 493.

      Floersheim also argues that the 180-day filing period did not commence

until he learned that a younger employee had replaced him. In our opinion, the

replacement of an employee who is protected from discrimination under section

21.051 of the Texas Labor Code may be evidence that the employer’s decision was

discriminatory, but the discharge of the employee because of the employee’s age,

not the decision to hire someone else, is the unlawful employment practice. See

Tex. Lab. Code Ann. § 21.051. The summary judgment record, which includes

Floersheim’s deposition, reflects that on June 15 he learned of Motiva’s decision to

                                        10
lay him off. Hiring a younger employee to fill a job is not a prohibited act under

section 21.051 of the Texas Labor Code; but, discharging an employee because of

the employee’s age is a prohibited act. See id. In Floersheim’s case, the summary

judgment proof established that Floersheim learned on June 15 of his impending

discharge.

      Finally, we address Floersheim’s argument that equity is available to toll the

date his filing period commenced. However, Motiva’s no-evidence motion asserted

that no evidence existed to show that Floersheim filed a timely administrative

complaint, that no legally recognized excuse existed to excuse that failure, and that

no evidence justified extending the filing period in Floersheim’s case. Floersheim

filed no evidence in his response to Motiva’s motion for summary judgment, and

in his response, he failed to point the trial court to any evidence in the summary

judgment record regarding his claim that Motiva’s conduct delayed the start of his

filing period.

      Rule 166a(i) of the Texas Rules of Civil Procedure creates a burden of

production that Floersheim failed to meet. Tex. R. Civ. P. 166a(i) (requiring that

the trial court “grant the motion unless the respondent produces summary judgment

evidence raising a genuine issue of material fact”). Moreover, Rule 94 of the Texas

Rules of Civil Procedure requires that affirmative defenses, like tolling, be

                                         11
pleaded; if not, such affirmative defenses and avoidances are deemed to be waived.

Tex. R. Civ. P. 94 (requiring that a party plead matters like estoppel and other

avoidances or affirmative defenses); see also KPMG Peat Marwick v. Harrison

Cnty. Hous. Fin. Corp., 988 S.W.2d 746, 749-50 (Tex. 1999) (requiring that party

asserting fraudulent concealment to defend against a claim of limitations has

burden to plead defense and to provide sufficient evidence to raise questions of

fact); Woods v. William M. Mercer, Inc., 769 S.W.2d 515, 518 (Tex. 1988)

(requiring that a party plead the discovery rule to avoid a defense of limitations).

Floersheim cannot now, for the first time on appeal, raise affirmative defenses that

were not raised in the trial court.

      Finally, although we expressly do not decide the issue on this record, we

note that other courts have refused to rely on equitable doctrines to create subject-

matter jurisdiction where it otherwise would not exist. See Czerwinski v. Univ. of

Tex. Health Sci. Ctr. at Houston Sch. of Nursing, 116 S.W.3d 119, 123 (Tex.

App.—Houston [14th Dist.] 2002, pet. denied) (holding that equitable estoppel

could not be applied to extend 180-day filing requirement in age discrimination

case “because the statutory filing requirements are jurisdictional”); Guevara v.

H.E. Butt Grocery Co., 82 S.W.3d 550, 552-53 (Tex. App.—San Antonio 2002,



                                         12
pet. denied) (declining to apply the doctrine of equitable tolling to extend section

21.202 of the Labor Code’s 180-day filing requirement).

      After considering the parties’ arguments, we conclude Motiva’s traditional

motion conclusively established that Floersheim’s 180-day filing period

commenced on June 15. Further, we conclude that Floersheim failed to

demonstrate that a fact issue existed regarding his tolling defense; alternatively, we

conclude that Floersheim waived his tolling claim because that claim is not

supported by Floersheim’s pleadings.

      All of Floersheim’s issues are overruled, and we hold the trial court properly

granted Motiva’s motion for summary judgment. The trial court’s judgment is

affirmed.

      AFFIRMED.




                                              ______________________________
                                                      HOLLIS HORTON
                                                           Justice


Submitted on December 27, 2012
Opinion Delivered March 28, 2013
Before McKeithen, C.J., Kreger and Horton, JJ.

                                         13
