     Case: 13-11089      Document: 00512596349         Page: 1    Date Filed: 04/15/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                      United States Court of Appeals

                                    No. 13-11089
                                                                               Fifth Circuit

                                                                             FILED
                                  Summary Calendar                       April 15, 2014
                                                                        Lyle W. Cayce
CHRISTOPHER AJAYI,                                                           Clerk


                                                 Plaintiff - Appellant
v.

WALGREEN COMPANY,

                                                 Defendant - Appellee




                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 3:12-CV-284


Before WIENER, OWEN, and HAYNES, Circuit Judges.
PER CURIAM:*
       Christopher Ajayi appeals the district court’s grant of Walgreen
Company’s (“Walgreen”) motion for summary judgment on Ajayi’s claim of age
discrimination brought under the Texas Commission on Human Rights Act
(“TCHRA”).      We AFFIRM.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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                                 No. 13-11089
                                I. Background
      Ajayi worked a regular, forty hour week for Walgreen as a store
pharmacist. In 2009, Walgreen implemented a program for its pharmacists to
become certified to administer immunizations.         Ajayi was given three
opportunities to complete the program. He believed he had until April 1, 2010
to complete the program, but when he did not complete the program by
January 12, 2010, he was issued a “Final Written Warning” and removed from
his position as a staff pharmacist. The written warning stated that he could
be rescheduled by the district office staff once he completed the certification,
but that failure to complete the certification by April 1, 2010 would warrant
further disciplinary action, including termination. Ajayi was certified shortly
after receiving the Final Written Notice. However, Ajayi was not reinstated;
rather, he was scheduled as an on-call pharmacist (known as a “floater”), which
are scheduled as needed, with no set hours. Ajayi stated he would not work as
a floater, refused to accept any shift-work, and demanded he be guaranteed a
forty-hour work-week at a permanent store. Because he refused assignments
for 30 days, Ajayi was classified as an “inactive” employee.
      On March 16, 2010, Ajayi complained to the Walgreen’s Vice President
that he was experiencing discrimination and that he would not accept a
position as a floater. He was told that he could accept the assignments while
waiting for reassignment, take personal leave, resign, or retire. Ajayi did not
resign or retire, nor did he accept assignments. As a result, he was classified
as “on leave,” and no further attempts were made to schedule him as a floater.
      Sometime later, Ajayi contacted store managers to obtain work, and one
of them gave him work on July 30, 2010, but was unable to pay him because of
Ajayi’s status as “on leave.” Ajayi attempted to obtain payment for the one day
of work as well as his accrued vacation pay. On August 6, 2010, Ajayi spoke
with his regional manager and told her that he planned to resign. On August
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                                 No. 13-11089
17, 2010, Ajayi sent her an email stating “Please be informed of my
resignation/retirement from this company, effective August 6, 2010.” He was
60 at the time of termination.
      Ajayi filed a joint complaint with the EEOC and the Texas Workforce
Commission (“TWC”) on February 11, 2011, claiming discrimination based on
age, national origin, and retaliation. On his charge, he stated that January 12,
2010 was the earliest date that discrimination took place, and he testified that
he resigned on August 6, 2010. He received a right-to-sue letter from the TWC
and filed this lawsuit, in which he only pursued the age-discrimination claim
under the TCHRA.
                                 II. Discussion
      We review de novo a district court’s grant of summary judgment. Ibarra
v. United Parcel Serv., 695 F.3d 354, 355 (5th Cir. 2012). Summary judgment
is appropriate if the moving party shows there is “no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.” FED.
R. CIV. P. 56(a).
      Before filing suit under the TCHRA, an aggrieved employee must
exhaust his administrative remedies by filing a complaint with the TWC “not
later than the 180th day after the date the alleged unlawful employment
practice occurred.” TEX. LAB. CODE § 21.202(a) (2006). The Texas Supreme
Court has characterized the deadline as “mandatory and jurisdictional.”
Specialty Retailers, Inc. v. DeMoranville, 933 S.W.2d 490, 492 (Tex. 1996). We
have also characterized § 21.202 as mandatory and jurisdictional. See, e.g.,
Jones v. Grinnell Corp., 235 F.3d 972, 974–75 (5th Cir. 2001); Pegram v.
Honeywell, Inc., 361 F.3d 272, 281 (5th Cir. 2004); Williams v. Merck & Co.,
Inc., 381 Fed. App’x. 438, 444 (5th Cir. 2010) (unpublished).
      Ajayi urges this court to find § 21.202 is not jurisdictional due to the
Texas Supreme Court’s recent holding that the two-year statute of limitations
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for filing suit in an employment discrimination action is not a jurisdictional
prerequisite to suit. In re United Serv. Aut. Ass’n, 307 S.W.3d 299, 310 (Tex.
2010) (holding that Tex. Lab. Code § 21.256 is not jurisdictional, despite prior
precedent). However, the Texas Supreme Court did not address whether the
180-day deadline imposed by § 21.202 is similarly non-jurisdictional. See id.
Furthermore, the Texas Supreme Court explicitly declined to address that
question in Prairie View A&M University v. Chatha, 381 S.W.3d 500, 510 n. 15,
514 (Tex. 2012), despite Chief Justice Jefferson’s dissent, in which he argued
that the filing requirement should be held non-jurisdictional. Id. at 516–24
(Jefferson, C.J., dissenting). Since United Services Automobile Association was
decided, Texas courts of appeals have continued to hold that § 21.202 is a
jurisdictional prerequisite to suit. See, e.g., City of El Paso v. Marquez, 380
S.W.3d 335, 342 (Tex. App. – El Paso 2012, no pet.); Dworschak v. Transocean
Offshore Deepwater Drilling Inc., 352 S.W.3d 191, 199–200 (Tex. App. –
Houston [14 Dist.] 2011, no pet.); Forge v. Nueces Cnty., 350 S.W.3d 740, 746
(Tex. App. – Corpus Christi 2011, no pet.). Absent a clear holding from the
Texas Supreme Court departing from this view, or a statutory change, we are
bound by the existing precedent on this statutory provision. See Am. Int’l
Specialty Lines Ins. Co. v. Canal Indem. Co., 352 F.3d 254, 260 (5th Cir. 2003)
(“To determine state law, federal courts sitting in diversity look to the final
decisions of the state’s highest court.”).
      Because the filing requirement is “mandatory and jurisdictional,” it is
not subject to equitable tolling. See Jones, 235 F.3d at 974 (“If a complainant
fails to exhaust his state administrative remedies, the [THRA] jurisdictionally
bars this court from hearing the case regardless of equitable and policy
concerns.”). Ajayi filed his administrative complaint on February 11, 2011.
Therefore, he must show that the alleged discriminatory decision occurred no
later than August 16, 2010. See Prairie View A&M, 381 S.W.3d at 509 (The
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                                  No. 13-11089
“proper focus is upon the time of the discriminatory acts, not upon the time at
which the consequences of the acts become most painful.”); Specialty Retailers,
933 S.W.2d at 493 (the 180-day period begins to run when the employee is
informed of the allegedly discriminatory employment decision).
      Ajayi argues that the 180-day period did not begin to run until sometime
after August 17, 2010 because he had no way of knowing the discriminatory
intent until after he resigned. However, it is well established in this circuit
that in age discrimination cases the limitations period begins to run when the
plaintiff knows of the discriminatory act, not when he first perceives a
discriminatory motive. See Christopher v. Mobil Oil Corp., 950 F.2d 1029, 1217
n.2 (5th Cir. 1992) (rejecting the theory that statute of limitations should begin
to run when the employee discovers discriminatory motive, rather than the
actual date of the act); Merrill v. S. Methodist Univ., 806 F.2d 600, 605 (5th
Cir. 1986) (same); Miller v. Potter, 359 F. App’x 535, 536–37 (5th Cir. 2010)
(same).   Texas courts of appeals have adopted this position. See Ogletree v.
Glen Rose Indep. Sch. Dist., 314 S.W.3d 450, 455 (Tex. App.-Waco 2010, pet
denied) (noting that limitations periods for employment discrimination claims
begin to run on the date when the plaintiff learns of an adverse employment
decision, not on the date of discovery of discriminatory intent); Acosta v.
Memorial Hermann Hosp. Sys., 14-07-00001-CV, 2008 WL 190052, at *4 (Tex.
App.-Hous. [14th Dist.] Jan. 22, 2008, pet. denied) (mem. op.) (citing Merrill,
806 F.2d at 605) (same); Abbott v. Rankin, 06-07-00149-CV, 2008 WL 5156453,
at *3 (Tex. App.-Texarkana Dec. 10, 2008, pet. denied) (mem. op.) (same). Ajayi
was demoted to a floating pharmacist on January 12, 2010, which would have
been the original discriminatory act.         At the latest, Ajayi’s so-called
“constructive discharge” occurred on the date he chose to resign: August 6,
2010. Either date falls outside the statutory period. The district court properly
found that there was no jurisdiction to hear this case.
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                          No. 13-11089
 AFFIRMED.




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