     Case: 18-40315      Document: 00514805661         Page: 1    Date Filed: 01/23/2019




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 18-40315                     United States Court of Appeals

                                  Summary Calendar
                                                                              Fifth Circuit

                                                                            FILED
                                                                      January 23, 2019

LISA A. JANUARY,                                                       Lyle W. Cayce
                                                                            Clerk
              Plaintiff - Appellant

v.

TEXAS DEPARTMENT OF CRIMINAL JUSTICE,

              Defendant - Appellee




                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 1:16-CV-311


Before STEWART, Chief Judge, and OWEN and OLDHAM, Circuit Judges.
PER CURIAM:*
       Lisa A. January filed suit alleging the Texas Department of Criminal
Justice (“TDCJ”) discriminated against her based on race, sex, age, and
disability, in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”),
the Age Discrimination in Employment Act (“ADEA”), and the Americans with
Disabilities Act (“ADA”). She also claims TDCJ retaliated against her for filing



       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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a workers’ compensation claim, in violation of Section 451.001 of the Texas
Labor Code. The Magistrate Judge recommended that the district court
dismiss with prejudice January’s claims against TDCJ. The district court
adopted the report and recommendation in full. For the reasons below, we
AFFIRM the district court’s dismissal of January’s ADA, Title VII, and ADEA
claims, and DISMISS January’s workers’ compensation retaliation claim for
lack of jurisdiction.
            I. FACTUAL AND PROCEDURAL BACKGROUND
      In 2011, January began her first stint at TDCJ as a correctional officer
for the Stiles Unit. In November 2012, January filed a workers’ compensation
claim alleging she injured her knee and elbow in a stairwell in the scope of her
employment with TDCJ. As a result, TDCJ assigned her to the mailroom, but
she was later removed from work entirely by her medical provider until further
notice. TDCJ initially placed her on family medical leave, but then placed her
on leave without pay status on January 4, 2013. Because her health provider’s
statement subsequently expired, TDCJ requested that she provide an updated
statement by June 7, 2013. An updated statement was not received by TDCJ,
and, as a result, she was administratively separated on June 12, 2013. On
September 19, 2014, January’s health care provider gave her a zero-disability
rating for her injuries. On October 29, 2014, January reapplied to TDCJ for
employment and was approved for rehire on December 9, 2014. January
returned to work on October 26, 2015.
      On December 2, 2015, January was acting as the picket officer at the
Stiles Unit where she claimed she started feeling ill. January maintains that
she suffers from episodic seizures. She states that she asked her supervisor,
Sergeant Baldwin, to see medical staff. The medical staff arrived at the unit
but left without seeing her. She also alleges that when she asked to leave the


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unit, Sergeant Baldwin did not allow her to leave because no one was available
to relieve her, though she admits Officer Zamora properly relieved her.
      The next day, January informed Kathy Nelson, a human resource officer,
that she was resigning. Two hours later, she called Nelson again in an attempt
to rescind the resignation, but her resignation was not honored by Warden
Carter.
      On December 8, 2015, January submitted an Equal Employment
Opportunity (“EEO”) complaint to TDCJ stating that she was discriminated
against based on her disability, retaliated against for asking for medical
attention, and slurs or hostile epithets were used when Officer Zamora accused
January of faking her illness. The complaint was closed with no further action
because January resigned from TDCJ and did not provide sufficient
information to open an investigation into the allegations, and the allegations
themselves did not support a violation of agency EEO policies.
      On January 8, 2016, January filed her charge of discrimination with the
Texas Workforce Commission, Civil Rights Division, alleging discrimination
based on race, sex, age, and disability in violation of Title VII, the ADEA and
the ADA. On January 29, 2016, the Equal Employment Opportunity
Commission (“EEOC”) issued its right to sue letter and closed its file because
it was unable to conclude that the information established a violation of any of
the statutes. On April 27, 2016, January filed another charge of discrimination
with the Texas Workforce Commission, Civil Rights Division. This time,
January claimed she was retaliated against for requesting medical attention
on the date of the incident. On May 16, 2016, the EEOC issued another right-
to-sue letter and closed its file because it was again unable to conclude that the
information established a violation of any of the statutes.
      In the operative complaint, January claims she was unlawfully
discharged from the TDCJ because of her sex (female) and race (African-
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American). She further alleges that she faced sexual harassment and was
discriminated against because of her disabilities. At her subsequent deposition
during the discovery phase of the case, January confirmed the following claims
against TDCJ: (1) discrimination under Title VII and the ADEA because she is
over the age of 50, black, and female; (2) discrimination under the ADA based
on her disability; (3) retaliation for complaining about feeling ill the date of the
incident; and (4) retaliation for filing a workers’ compensation claim.
       TDCJ filed its motion for summary judgment on August 10, 2017.
January’s response was due September 5, 2017. The served copy of the motion
for summary judgment remained unclaimed at the post office. Per the district
court’s October 19, 2017 Order, TDCJ served January with a second copy of
the motion for summary judgment on October 23, 2017. January—as evidenced
by her signature—received it on October 25, 2017. A response was due
November 16, 2017. January failed to respond. 1 On January 4, 2018, the
Magistrate Judge recommended that the district court dismiss with prejudice
January’s claims against TDCJ, stating that her Title VII, ADA, and ADEA
claims were barred by the ninety-day statute of limitations, and her workers’
compensation claim lacked causation to satisfy her prima facie burden. The
district court adopted the Magistrate Judge’s report and recommendation in
full. January timely filed her pro se appeal.
                           II. STANDARD OF REVIEW
       This court reviews a district court’s grant of summary judgment de novo,
“employing the same standards as did the district court.” Meditrust Fin. Servs.



       1 January states she had “no way to receive [her] mail for several weeks” because of
Hurricane Harvey’s landfall in the Beaumont region on or about August 29, 2017. But
January never notified the district court that she was unable to receive mail or participate
in her suit because of the hurricane. January’s January 10, 2018 filing makes no mention of
Hurricane Harvey. Nor did she mention Hurricane Harvey in a motion to reopen the case on
February 14, 2018 or in a second motion to reopen the case on March 13, 2018.
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Corp. v. Sterling Chems., Inc., 168 F.3d 211, 213 (5th Cir. 1999) (citations
omitted). The question is whether, in the light most favorable to the nonmoving
party, no genuine issue of material fact exists and the moving party is entitled
to judgment as a matter of law. Id. (citing Celotex Corp. v. Catrett, 477 U.S.
317, 322–24 (1986); FED. R. CIV. P. 56(c)).
                               III. DISCUSSION
A. Title VII, ADA, and ADEA Claims
      Under Title VII, the ADA, and the ADEA, a plaintiff has ninety days to
bring suit in federal court after receipt of a statutory notice of right to sue from
the EEOC. See 42 U.S.C. § 2000e-5(f)(1) (2011) (setting forth the ninety-day
period for Title VII); 42 U.S.C. § 12117(a) (2011) (incorporating by reference
the procedures applicable to Title VII for actions under the ADA); 29 U.S.C. §
626(e) (establishing ninety-day period for actions under the ADEA); Taylor v.
Books A Million, Inc., 296 F.3d 376, 379 (5th Cir. 2002) (applying the ninety-
day period to a claim under Title VII); Dade v. Sw. Bell. Tel. Co., 942 F. Supp.
312, 317 (S.D. Tex. 1996) (applying the ninety-day period to a claim under the
ADA); St. Louis v. Tex. Worker’s Comp. Comm’n, 65 F.3d 43, 47 (5th Cir. 1995)
(applying the ninety-day period to the ADEA). The ninety-day period is treated
as a statute of limitations. Hunter-Reed v. City of Houston, 244 F. Supp. 2d
733, 740 (S.D. Tex. 2003) (citing Espinoza v. Mo. Pac. R.R. Co., 754 F.2d 1247,
1248 n.1 (5th Cir. 1985)).
      Generally, the ninety-day period commences when the notice of right-to-
sue is received at the address supplied to the EEOC by the claimant. Taylor,
296 F.3d at 379; see also Espinoza, 754 F.2d at 1249. When the parties dispute
the date upon which a right-to-sue letter is received, or when the date of receipt
is unknown, the Fifth Circuit presumes that the letter was received on or prior
to the seventh day after the letter was mailed. Taylor, 296 F.3d at 380. The
Fifth Circuit has “expressed satisfaction with a range between three and seven
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days” after the date that the right-to-sue letter was issued by the EEOC.
Morgan v. Potter, 489 F.3d 195, 196 (5th Cir. 2007).
      The EEOC mailed the dismissal and right-to-sue letter on January 29,
2016. The summary judgment record does not show when January received the
letter, but using the more generous seven-day period, January is presumed to
have received it on February 5, 2016. Thus, January had ninety days—until
May 5, 2016—to file suit in this court. January did not file this lawsuit until
August 1, 2016, almost three months after the ninety-day deadline.
      January did file a second EEOC charge of discrimination concerning the
same incident claiming a violation of EEOC retaliation laws. The EEOC
similarly sent its dismissal and right-to-sue letter for this charge on May 16,
2016, that otherwise would have made the filing of this suit on August 1, 2016
timely. However, because the second right-to-sue letter was not a
reconsideration on the merits of the first charge of discrimination, the second
right-to-sue letter did not extend the ninety-day limitations period. Sparks v.
Lowe’s Home Ctrs., Inc., 341 F. Supp. 2d 671, 674 (E.D. Tex. 2004) (citing Gitlitz
v. Compagnie Nationale Air Fr., 129 F.3d 554, 557 (11th Cir. 1997) (per
curiam)); see also Washington v. City of Gulfport, Miss., 351 F. App’x 916, 918
(5th Cir. 2009). “To hold [otherwise] would allow any future plaintiff to
obliterate the ninety-day limitations period by repeatedly refiling the same
charge with the EEOC.” Sparks, 341 F. Supp. 2d at 674. Since January filed
suit more than ninety days after receiving her right-to-sue letter on her first
charge of discrimination, we affirm the district court’s dismissal of January’s
ADA, Title VII, and ADEA claims.
B. Workers’ Compensation Retaliation Claim
      For the first time on appeal, TDCJ asserts that the district court and this
court lack subject matter jurisdiction to hear January’s claims brought
pursuant to Section 451.001 of the Texas Labor Code because TDCJ is entitled
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to sovereign immunity. See Johnson v. United States, 85 F.3d 217, 218 n.2 (5th
Cir. 1996) (“It is well-settled that subject matter jurisdiction can be raised at
any time or even sua sponte by the court.”).
      “The Eleventh Amendment presupposes that each State is a sovereign
entity in our federal system and that it is inherent in the nature of sovereignty
not to be amenable to the suit of an individual without [a State’s] consent.”
Seminole Tribe of Fl. v. Florida, 517 U.S. 44, 44 (1996) (quotations omitted)
(citing Hans v. Louisiana, 134 U.S. 1, 13 (1890)). “A state does not waive
sovereign immunity in federal court simply by waiving sovereign immunity
and allowing suits against itself in its own courts.” Ross v. Tex. Dep’t of
Criminal Justice, No. 3:98-CV-1344-D, 2001 WL 1335873, at *4 (N.D. Tex.
2001) (citing Sherwinski v. Peterson, 98 F.3d 849, 851 (5th Cir. 1996)). Texas
has not waived its immunity from suit under Section 451.001 in federal court.
Further, Section 451.001 contains no indication that TDCJ intends to waive
sovereign immunity in federal court. See Ross, 2001 WL 1335873, at *4.
Therefore, TDCJ may not be sued under this statute in federal court.
Accordingly, we dismiss January’s workers’ compensation retaliation claim for
lack of jurisdiction. 2




      2 The Magistrate Judge did not discuss sovereign immunity. Instead, he examined the
claim’s merits:

       January has offered no evidence to show a causal link between [her workers’
compensation claim from 2012 and her verbal resignation that was accepted in 2015] or any
other adverse action as a result of her workers’ compensation claim. In fact, TDCJ chose to
rehire January after she filed her workers’ compensation claim in 2012 and after she was
administratively separated in 2013. For that reason, January’s workers’ compensation
retaliation claim [is] dismissed.
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                             III. CONCLUSION
      For the foregoing reasons, we AFFIRM the district court’s dismissal of
January’s ADA, Title VII, and ADEA claims, and DISMISS January’s workers’
compensation retaliation claim for lack of jurisdiction.




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