City of Pasadena v. Janet Poulos

• Court: Court of Appeals of Texas
• Decided: October 31, 2023
• Docket: 01-22-00676-CV
• Status: Published

Opinion

Opinion issued October 31, 2023

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-22-00676-CV ——————————— CITY OF PASADENA, Appellant V. JANET POULOS, Appellee

On Appeal from the 281st District Court Harris County, Texas Trial Court Case No. 2022-09772

MEMORANDUM OPINION

Janet Poulos sued her employer, the City of Pasadena, and asserted claims

under the Texas Commission on Human Rights Act (“TCHRA”) for hostile work

environment based on race, retaliation, and racial discrimination. The City moved to dismiss Poulos’s claims under Rule of Civil Procedure 91a, arguing that the claims

lacked a basis in law because the City’s governmental immunity had not been

waived. The trial court denied the City’s motion to dismiss.

In two issues, the City argues that the trial court erred by denying its Rule 91a

motion to dismiss because (1) Poulos did not timely file suit under the TCHRA, and

(2) the only timely claims that Poulos asserted in her charge of discrimination are

not actionable under the TCHRA. We affirm in part and reverse and render judgment

in part.

Background

Janet Poulos is Mexican American and has been employed by the City of

Pasadena as a Customer Service Assistant in a call center since 2002. Beginning in

2015, she allegedly “observed bias and favorable treatment of white employees

when she got assigned a new supervisor” and “this discrimination has continued

throughout her employment.” Poulos alleged that her supervisor allowed the two

white employees in the department “more leniency and privileges” than the three

Mexican American employees. Poulos was allegedly subjected to “closer scrutiny

than the treatment received by her white co-workers,” such as being asked by her

supervisor whether she was “logged in” to the call system, while one of her white

co-workers was not logged in and was not questioned in this manner. Poulos’s

supervisor also allegedly yelled at her about time keeping and documentation.

2 In October 2019, Poulos made a complaint to Human Resources about her

supervisor’s harassment “and the unequal treatment she was experiencing.”

However, no action was taken, and “her director . . . dismiss[ed] her concerns and

threaten[ed] to issue her a formal write up for voicing the inequality she was facing.”

Poulos alleged that one of her white co-workers was not disciplined for “fail[ing] to

log into the system and assist with the incoming calls” or for sleeping in the office

during work hours. Instead, this co-worker was promoted to a supervisory position.

Poulos also alleged that her supervisors subjected her to more stringent

requirements concerning leaving work for medical appointments and taking

restroom breaks during work hours. For example, in March 2021, the assistant

supervisor of the department allegedly instructed Poulos to cancel a cardiologist

appointment that she had scheduled weeks in advance and about which she had

informed her supervisors. The next day, one of her white co-workers asked to leave

work early and this request was granted, even though the co-worker had not provided

any advance notice. Poulos’s supervisor also allegedly required Poulos to ask

permission from the assistant supervisor every time she needed to use the restroom,

but none of her white co-workers were subjected to this same requirement.

In June 2021, the assistant supervisor allegedly refused Poulos’s request to go

to a medical appointment prior to a scheduled surgery. The assistant supervisor

allegedly “attempted to intimidate” Poulos by “interrogating her about the necessity

3 of her surgical procedure” and discussing Poulos’s personal medical information in

front of co-workers. Poulos returned from medical leave in late July 2021 and was

placed on “light duty” due to medical restrictions. Less than two weeks later,

Poulos’s supervisor instructed her to lift “water bottle crates and refill the

refrigerator.” When Poulos responded that she could not do so due to her medical

restrictions, her supervisor “rudely dismissed” her concerns, “berated her publicly,”

and accused Poulos of being able to lift the water bottles because she carried a purse.

Poulos filed a charge of discrimination with the Equal Employment

Opportunity Commission (“EEOC”) and the Texas Workforce Commission–Civil

Rights Division (“the Commission”) on October 13, 2021. Poulos alleged that she

has “continued to face additional harassment from her supervisors” following her

filing of the charge. She has allegedly been assigned additional work without

compensation, has “continue[d] to be closely monitored with her bathroom breaks,”

and has been “harassed for any breaks or requests for time off.” Poulos alleged that

she received a right to sue letter from the EEOC on November 18, 2021. She also

alleged that she has “requested [that] the Texas Workforce Commission Civil Rights

Division issue Complainant’s ‘Right to File Civil Action.’”

Poulos filed suit against the City on February 16, 2022, and asserted three

claims under the TCHRA. Poulos asserted a claim for hostile work environment

based on her race, alleging that her supervisors would monitor and interrogate her

4 more than her white co-workers, she was “held to a different standard for her

attendance and break times” compared to her white co-workers, and she was

“verbally assaulted by her supervisor and endured hostility and yelling on a frequent

basis,” while her white co-workers were not treated in the same manner.

Poulos also asserted a claim for retaliation. She alleged that she first

complained about the discriminatory treatment in October 2019, but “her director”

dismissed her concerns and threatened to give her a formal write-up. Poulos alleged

that she suffered adverse employment actions including additional harassment from

her supervisor; the denial of requested leave days for medical procedures; the

ignoring of her medical restrictions and accommodations following a surgical

procedure; and increasing hostility from her supervisor. She further alleged that

following her EEOC charge, she had been assigned additional work without

compensation, her bathroom breaks were closely monitored, and she was harassed

concerning breaks and requests for time off.

Finally, Poulos asserted a claim for racial discrimination. She alleged that she

was “scrutinized to a higher level than her white coworkers and berated and

humiliated before her peers by her supervisor”; was “denied requests for leave days

requested weeks in advance, while her white coworkers were allowed to leave early

without prior notice”; and was “held to a higher standard than her white coworkers,

including higher scrutiny for her time and work performance.” She further alleged

5 that she was denied a promotion in favor of a white co-worker with less experience

and qualifications. Additionally, she alleged that a white co-worker was not

disciplined when that co-worker complained about a supervisor, but Poulos was

threatened with a write-up for voicing concerns. Poulos sought actual and

compensatory damages, “including lost wages and benefits in the past and future,”

mental anguish damages, and damages for pain and suffering.

Poulos requested issuance of service of citation. She served the City with

citation on March 29, 2022.

The City answered and asserted the affirmative defense of governmental

immunity, alleging that Poulos had not demonstrated that the City’s immunity had

been waived.

On May 17, 2022, the City moved to dismiss Poulos’s suit for lack of subject-

matter jurisdiction under Rule of Civil Procedure 91a. The City acknowledged that

the TCHRA provides a limited waiver of governmental immunity, but it argued that

the waiver only applies when the plaintiff alleges a violation within the scope of the

statue and follows the TCHRA’s mandatory procedures. The City first argued that

Poulos’s suit was untimely because she did not file her petition and serve the City

with process within 60 days of receiving a right to sue letter. Although Poulos

alleged that she received her right to sue letter from the EEOC on November 18,

6 2021, she did not file suit until February 16, 2022, and she did not serve the City

until March 29, 2022.

The City also argued that Poulos did not file her charge of discrimination

within 180 days of the occurrence of an unlawful employment practice. Because

Poulos filed her charge of discrimination on October 13, 2021, any claims involving

acts more than 180 days before that date—or before April 16, 2021—were untimely

and could not be the subject of Poulos’s suit. According to the City, Poulos’s only

timely claims involved complaints regarding absences and bathroom breaks, and

those claims were not actionable under the TCHRA.

Poulos responded that she had timely filed suit. She received her right to sue

letter from the EEOC and filed suit on February 16, 2022, but at that time, she had

not yet received her notice of right to file a civil action from the Commission. She

received that letter on March 5, 2022, and served the City on March 29, 2022, within

the 60-day time-period. Poulos attached a copy of the notice from the Commission.

Poulos also argued that she had alleged claims that were actionable under the

TCHRA and that occurred after April 16, 2021, including claims that her white co-

workers “were given preference on breaks and access to bathroom privileges,” she

was denied leave to go to a medical appointment, and the medical restrictions

following her surgery were ignored.

7 The trial court denied the City’s motion to dismiss. This interlocutory appeal

followed. See TEX. CIV. PRAC. & REM. CODE § 51.014(a)(8) (allowing party to take

interlocutory appeal from order granting or denying plea to jurisdiction filed by

governmental unit); City of Austin v. Liberty Mut. Ins., 431 S.W.3d 817, (Tex.

App.—Austin 2014, no pet.) (stating that because Rule 91a motion challenged

subject-matter jurisdiction, section 51.014(a)(8) afforded governmental unit right to

take interlocutory appeal from denial of motion).

Governmental Immunity

The City contends that the trial court erroneously denied its motion to dismiss

because Poulos cannot demonstrate that the City’s governmental immunity was

waived. In its first issue, the City argues that Poulos did not timely file suit and did

not timely serve the City. In its second issue, the City argues that to the extent Poulos

asserted any timely claims in her charge of discrimination, these claims are not

actionable under the TCHRA.

A. Standard of Review

Sovereign immunity protects the State of Texas against lawsuits for damages

unless the State consents to be sued. Gulf Coast Ctr. v. Curry, 658 S.W.3d 281, 283

(Tex. 2022). Governmental immunity provides similar protection to subdivisions of

the State, including cities. Travis Cent. Appraisal Dist. v. Norman, 342 S.W.3d 54,

57–58 (Tex. 2011); Harris Cnty. v. Sykes, 136 S.W.3d 635, 638 (Tex. 2004).

8 “Governmental immunity has two components: immunity from liability,

which bars enforcement of a judgment against a governmental entity, and immunity

from suit, which bars suit against the entity altogether.” Tooke v. City of Mexia, 197

S.W.3d 325, 332 (Tex. 2006). Immunity from suit “thus presents a jurisdictional

question of whether the State has expressly consented to suit.” Curry, 658 S.W.3d

at 284; Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225–26 (Tex.

2004) (stating that sovereign immunity from suit “defeats a trial court’s subject

matter jurisdiction”). A plaintiff has the burden to affirmatively demonstrate that the

trial court has jurisdiction, which “encompasses the burden of establishing a waiver

of sovereign immunity in suits against the government.” Town of Shady Shores v.

Swanson, 590 S.W.3d 544, 550 (Tex. 2019).

Parties may challenge a trial court’s subject-matter jurisdiction through

several different procedural vehicles, including a plea to the jurisdiction or a motion

for summary judgment. Alamo Heights Indep. Sch. Dist. v. Clark, 544 S.W.3d 755,

770 (Tex. 2018). A party may also challenge subject-matter jurisdiction by filing a

motion to dismiss pursuant to Rule of Civil Procedure 91a. City of Dallas v. Sanchez,

494 S.W.3d 722, 724–25 (Tex. 2016) (per curiam); City of Houston v. Houston

Metro Sec., No. 01-22-00532-CV, 2023 WL 2602520, at *2 (Tex. App.—Houston

[1st Dist.] Mar. 23, 2023, no pet.) (mem. op.).

9 Under Rule 91a, a party may move to dismiss a cause of action on the grounds

that it has no basis in law or fact. TEX. R. CIV. P. 91a.1. A cause of action has no

basis in law if the allegations, taken as true, together with inferences reasonably

drawn from the allegations, do not entitle the claimant to the relief sought. Id. In

ruling upon this motion, the trial court may not consider evidence, but instead must

decide the motion based “solely on the pleading of the cause of action, together with

any pleading exhibits permitted by Rule 59.” TEX. R. CIV. P. 91a.6; Sanchez, 494

S.W.3d at 724; see TEX. R. CIV. P. 59 (permitting “[n]otes, accounts, bonds,

mortgages, records, and all other written instruments, constituting, in whole or in

part, the claim sued on” to be attached to and made part of pleadings).

We review the merits of a Rule 91a motion de novo because the availability

of a remedy under the facts alleged is a question of law. Sanchez, 494 S.W.3d at 724.

Whether a pleader has alleged facts affirmatively demonstrating the existence of

subject-matter jurisdiction is also a question of law that we review de novo. Id. at

725; Miranda, 133 S.W.3d at 226. To determine whether dismissal under Rule 91a

is required, we consider whether the pleadings, liberally construed, alleged sufficient

facts to invoke a waiver of governmental immunity. Sanchez, 494 S.W.3d at 725.

B. Timeliness of City’s Rule 91a Motion

Before addressing the City’s appellate arguments, we first address an

argument that Poulos raised in her appellee’s brief and her sur-reply brief. Poulos

10 argues that the trial court properly denied the City’s Rule 91a motion because the

trial court did not timely rule on the motion. She contends that as a result of the

untimely hearing and ruling, “action pursuant to this rule is no longer available as a

matter of law.”

Rule 91a.3 provides that a motion to dismiss must be:

(a) filed within 60 days after the first pleading containing the challenged cause of action is served on the movant; (b) filed at least 21 days before the motion is heard; and (c) granted or denied within 45 days after the motion is filed.

TEX. R. CIV. P. 91a.3. “The word ‘must’ is generally construed as mandatory, and,

therefore, as creating a duty or obligation.” Walker v. Owens, 492 S.W.3d 787, 790

(Tex. App.—Houston [1st Dist.] 2016, no pet.). Courts have repeatedly noted that

while Rule 91a.3 provides that a motion to dismiss “must be . . . granted or denied

within 45 days after the motion is filed,” the Rule does not provide any consequences

or sanctions if the trial court does not comply. See id.; MedFin Manager, LLC v.

Stone, 613 S.W.3d 624, 628 (Tex. App.—San Antonio 2020, no pet.); Koenig v.

Blaylock, 497 S.W.3d 595, 598 (Tex. App.—Austin 2016, pet. denied). This Court

has held that while the trial court’s failure to comply with the 45-day deadline is

error, “the court’s non-compliance with the mandatory language of the rule will not

result in reversal if the error is found to be harmless.” Walker, 492 S.W.3d at 790–

91; see MedFin Manager, 613 S.W.3d at 628 (concluding that failure to grant or

11 deny motion within 45 days is error, but Rule’s deadline “is directory, not

jurisdictional”).

Here, Poulos filed suit against the City on February 16, 2022, and served the

City with citation on March 29, 2022. The City timely filed its motion to dismiss on

May 17, 2022. Under the timelines of Rule 91a, the motion “must” have been granted

or denied within 45 days after the motion was filed, or by July 1, 2022. The trial

court did not rule on the City’s motion until September 7, 2022.

The trial court’s failure to rule on the motion within the 45-day deadline was

error. See TEX. R. CIV. P. 91a.3; Walker, 492 S.W.3d at 790. However, because this

deadline is not jurisdictional, the trial court did not lose jurisdiction to decide the

motion to dismiss. See MedFin Manager, 613 S.W.3d at 629; Koenig, 497 S.W.3d

at 599 (noting that in absence of language outlining consequences for trial court’s

failure to act within 45-day deadline, “it is more reasonable to conclude that” time

limit in rule “is not a hard deadline that prohibits the court from considering the

substance of the motion to dismiss after the expiration of the 45-day time period but,

rather, a provision included in the rule to promote the orderly and prompt dismissal

of baseless causes of action”).

Moreover, Poulos has not attempted to identify any way in which she was

prejudiced by the trial court ruling on the motion after the 45-day deadline had

expired. See Walker, 492 S.W.3d at 791 (“[H]e does not contend that the parties

12 engaged in any discovery or other furtherance of the litigation process after the

deadline passed. The motion simply remained pending during that period.”); Koenig,

497 S.W.3d at 599 (stating that court could not “imagine any such prejudice” to

plaintiff for failure to rule by 45-day deadline, noting that plaintiff would have more

time to respond to dismissal motion, more time to amend petition, and more time to

consider whether to non-suit). We conclude that the trial court’s failure to rule on

the City’s Rule 91a motion within the 45-day deadline did not preclude the trial court

from doing so after the deadline. We therefore turn to the merits of the City’s

arguments on appeal.

C. Whether Poulos Timely Filed Suit Under TCHRA

The Texas Legislature enacted the TCHRA to address discrimination and

retaliation in the workplace and to “coordinate and conform with federal anti-

discrimination and retaliation laws under Title VII.” Prairie View A&M Univ. v.

Chatha, 381 S.W.3d 500, 504 (Tex. 2012). When analyzing a claim brought under

the TCHRA, we look to state cases as well as to the analogous federal statutes and

the case law interpreting those statutes. Quantum Chem. Corp. v. Toennies, 47

S.W.3d 473, 476 (Tex. 2001); Anderson v. Houston Cmty. Coll. Sys., 458 S.W.3d

633, 643 (Tex. App.—Houston [1st Dist.] 2015, no pet.). The TCHRA waives a

governmental unit’s immunity, but only when the plaintiff states a claim for conduct

that actually violates the statute. Clark, 544 S.W.3d at 770; Mission Consol. Indep.

13 Sch. Dist. v. Garcia, 372 S.W.3d 629, 636 (Tex. 2012) (“[T]he Legislature has

waived immunity only for those suits where the plaintiff actually alleges a violation

of the TCHRA by pleading facts that state a claim thereunder.”).

Under the TCHRA, 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 (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. LABOR CODE § 21.051. An employer also commits an unlawful employment

practice if the employer retaliates or discriminates against a person who (1) opposes

a discriminatory practice; (2) makes or files a charge of discrimination; (3) files a

complaint; or (4) testifies, assists, or participates in any manner in an investigation,

proceeding, or hearing. Id. § 21.055.

A person who is aggrieved by an unlawful employment practice may file a

complaint with the Commission that states that an unlawful employment practice

has been committed and states the facts on which the complaint is based. Id.

§ 21.201(a), (c). This complaint must be filed not later than the 180th day after the

14 date the alleged unlawful employment practice occurred. Id. § 21.202(a). If the

Commission dismisses a complaint or does not resolve the complaint before the

181st day after the date the complaint was filed, the Commission shall inform the

complainant of the dismissal or the failure to resolve the complaint. Id. § 21.208.

A complainant who receives notice under section 21.208 that the Commission

has not dismissed or resolved the complaint “is entitled to request from the

commission a written notice of the complainant’s right to file a civil action.” Id.

§ 21.252(a). “Within 60 days after the date a notice of the right to file a civil action

is received, the complainant may bring a civil action against the respondent.” Id.

§ 21.254. Failure to issue the notice of the complainant’s right to file a civil action

does not affect the complainant’s right to bring a civil action against her employer.

Id. § 21.252(d). In the Code Construction Act, the Texas Legislature has provided

that “[s]tatutory prerequisites to a suit, including the provision of notice, are

jurisdictional requirements in all suits against a governmental entity.” TEX. GOV’T

CODE § 311.034. Title VII contains similar requirements that a plaintiff file a timely

charge of discrimination and receive a “notice of the right to sue” from the EEOC

before filing suit in court. See 42 U.S.C. § 2000e-5(e)(1) (requiring charge of

discrimination to be filed with EEOC within 180 days of alleged unlawful

employment practice), (f)(1) (requiring EEOC to notify complainant if EEOC

15 dismisses charge or has not filed its own civil action within 180 days of complainant

filing charge); Ernst v. Methodist Hosp. Sys., 1 F.4th 333, 337 (5th Cir. 2021).

Several courts—including some of our sister intermediate appellate courts,

federal district courts, and the Fifth Circuit—have held that the event that triggers

section 21.254’s 60-day time period for filing a suit that asserts claims under the

TCHRA is the receipt of the notice of the right to file a civil action from the

Commission, not the receipt of a “right to sue” letter from the EEOC. See, e.g.,

Vielma v. Eureka Co., 218 F.3d 458, 464–68 (5th Cir. 2000); Hansen v. Aon Risk

Servs. of Tex., 473 F. Supp. 2d 743, 748 (S.D. Tex. 2007) (following rationale of

Vielma); Ledesma v. Allstate Ins. Co., 68 S.W.3d 765, 770–72 (Tex. App.—Dallas

2001, no pet.) (same). In making this determination, the Dallas Court of Appeals in

Ledesma focused on the language of Labor Code sections 21.252, 21.253, and

21.254, all of which refer to a “notice of the right to file a civil action” and do not

refer to the EEOC, EEOC procedures, or a “right to sue” letter issued by the EEOC.

See 68 S.W.3d at 770; see also Vielma, 218 F.3d at 464–65 (noting that both sections

21.252 and 21.254 use same term—“a notice of the right to file a civil action”—and

stating that in absence of contrary indications, court will “interpret words or phrases

that appear repeatedly in a statute to have the same meaning”).

We agree with the Fifth Circuit’s and the Dallas Court of Appeals’

construction of section 21.254. Labor Code section 21.252(a) provides that a

16 complainant is “entitled to request from the commission a written notice of the

complainant’s right to file a civil action.” TEX. LABOR CODE § 21.252(a). The

Commission’s “failure to issue the notice of a complainant’s right to file a civil

action” does not affect the complainant’s right to bring a lawsuit against her

employer. Id. § 21.252(d). The Labor Code then provides that “[w]ithin 60 days after

the date a notice of the right to file a civil action is received,” the complainant may

file suit against her employer. Id. § 21.254. As the Dallas Court of Appeals pointed

out, none of these statutory provisions refers to the EEOC or a right to sue letter

issued by the EEOC. See Ledesma, 68 S.W.3d at 770. The plain language of section

21.254, therefore, refers to the notice of the right to file a civil action issued by the

Commission, not the right to sue letter issued by the EEOC. See Vielma, 218 F.3d at

464 (disagreeing that “right to sue” letter issued by EEOC is interchangeable with

“right to file a civil action” letter issued by Commission). Concluding otherwise

would read language into section 21.254 that the Legislature did not include. See

Ledesma, 68 S.W.3d at 770; see Cadena Comercial USA Corp. v. Tex. Alcoholic

Beverage Comm’n, 518 S.W.3d 318, 326 (Tex. 2017) (“[W]e take statutes as we find

them and refrain from rewriting the Legislature’s text.”).

Here, Poulos filed suit against the City on February 16, 2022. In her original

petition, Poulos alleged the following with respect to “Administrative Conditions

Precedent” to filing suit:

17 10. On October 13, 2021, Plaintiff timely and dually filed a Charge of Discrimination against the Defendant with the Texas Workforce Commission Civil Rights Division and the Equal Employment Opportunity Commission, EEOC Charge No. 460-2022-00189. Plaintiff received a right to sue from the EEOC on November 18, 2021. Plaintiff files this complaint within 90 days of receiving the notice of right to sue. All conditions precedent to filing this lawsuit have been performed or have occurred. 11. Plaintiff has requested [that] the Texas Workforce Commission Civil Rights Division issue Complainant’s “Right to File Civil Action.”

Poulos only asserted claims under the TCHRA; she did not allege any violations of

Title VII. In response to the City’s motion to dismiss, Poulos attached the “Notice

of Complainant’s Right to File Civil Action” issued by the Commission. Poulos

received this notice on March 5, 2022, after she had filed suit against the City. It is

undisputed that Poulos served the City on March 29, 2022.

The City argues that Poulos did not timely file suit under the TCHRA because

she received the right to sue letter from the EEOC on November 18, 2021, but she

did not file suit until February 16, 2022, more than 60 days after receipt of the right

to sue letter. However, receipt of the EEOC right to sue letter does not trigger the

60-day time period to file suit under the TCHRA; instead, receipt of the notice of the

right to file a civil action from the Commission triggers the running of the 60-day

period. See Ledesma, 68 S.W.3d at 770–72; Vielma, 218 F.3d at 464–68. In her

petition filed on February 16, 2022, Poulos alleged that she had requested that the

Commission issue a notice of the right to file a civil action. Construing her pleadings

18 liberally, as we must when reviewing an order on a Rule 91a motion, we conclude

that at the time Poulos filed suit, she had requested but not yet received a notice of

the right to file a civil action from the Commission. See Sanchez, 494 S.W.3d at 725.

Thus, the 60-day time period in section 21.254 had not yet begun running, and

Poulos timely filed her TCHRA claims against the City. See TEX. LABOR CODE

§ 21.254; Ledesma, 68 S.W.3d at 767–68, 772 (noting that Ledesma received right

to sue letter from EEOC on June 11, 1998, she filed suit and asserted claims under

TCHRA on September 8, 1998, and she requested that predecessor agency to

Commission issue notice of right to file civil action on same date she filed suit, and

concluding that trial court erred by granting plea to jurisdiction because Ledesma

was not required to file suit asserting TCHRA claims within 60 days of receiving

EEOC letter).

The City also argues in its first issue that Poulos did not timely serve it with

citation. “Texas courts have interpreted section 21.254 to mean that a plaintiff must

file the suit and serve notice of the suit upon the proper parties within 60 days of

receiving of notice of a right to sue from the [Commission].” McCollum v. Tex. Dep’t

of Licensing & Regul., 321 S.W.3d 58, 63 (Tex. App.—Houston [1st Dist.] 2010,

pet. denied); Tarrant Cnty. v. Vandigriff, 71 S.W.3d 921, 924 (Tex. App.—Fort

Worth 2002, pet. denied) (“The mere filing of a lawsuit is not sufficient to meet the

requirements of ‘bringing suit’ within the limitations period; rather, a plaintiff must

19 both file her action and have the defendant served with process.”). The date of

service relates back to the date of filing if the plaintiff exercised diligence in

effecting service. Vandigriff, 71 S.W.3d at 924.

Here, Poulos received her notice of the right to file a civil action from the

Commission on March 5, 2022, the date that triggers section 21.254’s 60-day time

period for bringing suit. As stated above, it is undisputed that Poulos filed suit on

February 16, 2022—before receiving the notice of the right to file a civil action—

and served the City on March 29, 2022. Poulos therefore served the City with citation

within the 60-day time period for bringing suit. See TEX. LABOR CODE § 21.254;

McCollum, 321 S.W.3d at 63; Vandigriff, 71 S.W.3d at 924.

We overrule the City’s first issue.

D. Whether Poulos’s Claims are Actionable Under the TCHRA

As mentioned above, the TCHRA waives governmental immunity, “but only

when the plaintiff states a claim for conduct that actually violates the statute.” Clark,

544 S.W.3d at 770. To establish a trial court’s jurisdiction over a TCHRA claim, the

plaintiff must plead the elements of the statutory cause of action—the “basic facts

that make up the prima facie case”—so the trial court can determine whether the

plaintiff has sufficiently alleged a TCHRA violation. San Antonio Water Sys. v.

Nicholas, 461 S.W.3d 131, 135 (Tex. 2015). The plaintiff must also “strictly satisf[y]

the procedural requirements outlined in the TCHRA” to bring suit against a

20 governmental entity. See Chatha, 381 S.W.3d at 513–14. We therefore turn to

whether Poulos pleaded facts that state a claim under the TCHRA.

1. Whether Poulos timely asserted alleged discriminatory acts in her charge of discrimination

The TCHRA requires a plaintiff to exhaust her administrative remedies by

filing a complaint with the Commission or the EEOC. TEX. LABOR CODE § 21.201;

Chatha, 381 S.W.3d at 503, 504 n.4; Waffle House, Inc. v. Williams, 313 S.W.3d

796, 804 (Tex. 2010). The complaint must be filed “not later than the 180th day after

the date the alleged unlawful employment practice occurred.” TEX. LABOR CODE

§ 21.202(a); Chatha, 381 S.W.3d at 513–14 (agreeing that 180-day filing deadline

in section 21.202 is statutory prerequisite to suit for TCHRA suits against

governmental entities). Claims against governmental entities that are not timely filed

are jurisdictionally barred. Harris Cnty. Hosp. Dist. v. Parker, 484 S.W.3d 182, 192–

93 (Tex. App.—Houston [14th Dist.] 2015, no pet.).

Each discrete incident of discrimination constitutes a separate actionable

unlawful employment practice. Alief Indep. Sch. Dist. v. Brantley, 558 S.W.3d 747,

755 (Tex. App.—Houston [14th Dist.] 2018, pet. denied); see Nat’l R.R. Passenger

Corp. v. Morgan, 536 U.S. 101, 114 (2002) (stating, in case under Title VII, that

“[e]ach incident of discrimination and each retaliatory adverse employment decision

constitutes a separate actionable ‘unlawful employment practice’”). Discrete

discriminatory acts are not actionable if time-barred, and each discrete

21 discriminatory act “starts a new clock for filing charges alleging that act.” Brantley,

558 S.W.3d at 755. “Discrete acts that fall within the statutory time period do not

make acts that fall outside the time period timely.” Id. Hostile work environment

claims, however, typically consist “of multiple discriminatory acts over a period of

time,” and therefore a charge alleging a hostile work environment “must be filed

only within the statutory window of at least one of the acts that contributed to the

hostile work environment.” Id.; Nat’l R.R. Passenger, 536 U.S. at 117 (“Provided

that an act contributing to the claim occurs within the filing period, the entire time

period of the hostile environment may be considered by a court for the purposes of

determining liability.”).

Poulos alleged that she filed her charge of discrimination with the

Commission and the EEOC on October 13, 2021. The City argues that any claim

based on conduct that occurred before April 16, 2021—180 days before Poulos filed

her charge of discrimination—is untimely and does not waive the City’s immunity.

The City further contends that the only claims Poulos timely asserted related to

absences from work and bathroom breaks, neither of which are actionable under the

TCHRA and do not establish a hostile work environment. Poulos responds that in

addition to these claims, she also timely asserted a claim that, following her surgery,

her supervisor violated her accommodations by requiring her to lift heavy water

bottles. The appellate record does not contain Poulos’s charge of discrimination.

22 Because Poulos does not argue that we should address any claims based on

conduct that occurred before April 16, 2021, we agree with the City that claims based

on conduct occurring before this date are untimely and are jurisdictionally barred.

See TEX. LABOR CODE § 21.202(a); Chatha, 381 S.W.3d at 513–14; Parker, 484

S.W.3d at 192–93. However, we conclude that Poulos’s hostile work environment

claim, which is based on conduct occurring both before and after April 16, 2021, is

timely. See Nat’l R.R. Passenger, 536 U.S. at 117; Brantley, 558 S.W.3d at 755.

2. Whether the claims Poulos timely raised in her charge of discrimination state a claim under the TCHRA

a. Poulos’s race discrimination claim

The TCHRA provides that an employer commits an unlawful employment

practice if, because of race, 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 (2) “limits, segregates, or classifies an employee . . . 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. LABOR

CODE § 21.051(1).

A plaintiff may rely on direct or circumstantial evidence. Tex. Tech Univ.

Health Scis. Ctr.-El Paso v. Flores, 612 S.W.3d 299, 305 (Tex. 2020). When a

plaintiff relies on circumstantial evidence, we follow the burden-shifting framework

23 established by the United States Supreme Court. See McDonnell Douglas Corp. v.

Green, 411 U.S. 792, 802–04 (1973); Flores, 612 S.W.3d at 305. Under this

framework, (1) the plaintiff must first create a presumption of illegal discrimination

by establishing a prima facie case; (2) the defendant must then rebut that

presumption by establishing a legitimate, nondiscriminatory reason for the

employment action; and (3) the plaintiff must then overcome the rebuttal evidence

by establishing that the defendant’s stated reason is a mere pretext. Flores, 612

S.W.3d at 305. At all times, the burden of persuasion remains with the employee.

Clark, 544 S.W.3d at 782.

To establish a prima facie case of discrimination, the employee must show

that (1) she was a member of a protected class; (2) she suffered an adverse

employment action; and (3) non-protected class employees were not treated

similarly. Anderson, 458 S.W.3d at 643. The TCHRA addresses only “ultimate

employment decisions.”1 Id. at 644; Esparza v. Univ. of Tex. at El Paso, 471 S.W.3d

1 As support for this construction of the TCHRA, this Court and some of our sister intermediate appellate courts have cited cases from the Fifth Circuit holding that Title VII was designed to address “ultimate employment decisions” and not every decision made by employers that might have a tangential effect on ultimate decisions. See, e.g., Democratic Schs. Rsch., Inc. v. Rock, 608 S.W.3d 290, 308 (Tex. App.—Houston [1st Dist.] 2020, no pet.) (citing McCoy v. City of Shreveport, 492 F.3d 551, 559–60 (5th Cir. 2007)); Winters v. Chubb & Son, Inc., 132 S.W.3d 568, 575 (Tex. App.—Houston [14th Dist.] 2004, no pet.) (citing Dollis v. Rubin, 77 F.3d 777, 781–82 (5th Cir. 1995)); Elgaghil v. Tarrant Cnty. Junior Coll., 45 S.W.3d 133, 142–43 (Tex. App.—Fort Worth 2000, pet. denied) (citing Messer v. Meno, 130 F.3d 130, 140 (5th Cir. 1997), and Mattern v. Eastman Kodak Co., 104 F.3d 702, 707 (5th Cir. 1997)). Recently, however, the Fifth Circuit, sitting en banc 24 903, 909 (Tex. App.—El Paso 2015, no pet.) (“[A]n adverse employment action

requires a significant change in employment status.”). The statute “does not address

‘every decision made by employers that arguably might have some tangential effect

upon employment decisions.’” Anderson, 458 S.W.3d at 644 (quoting Winters v.

Chubb & Son, Inc., 132 S.W.3d 568, 575 (Tex. App.—Houston [14th Dist.] 2004,

no pet.)); Elgaghil v. Tarrant Cnty. Junior Coll., 45 S.W.3d 133, 142 (Tex. App.—

Fort Worth 2000, pet. denied) (stating that TCHRA was “designed to address

ultimate employment decisions, not every action that occurs in the workplace that

makes an employee unhappy”).

Generally, adverse employment actions involve hiring, granting leave,

discharging, promoting, and compensating employees. Anderson, 458 S.W.3d at

644. Adverse employment actions do not include disciplinary filings, reprimands

concluded that limiting Title VII’s anti-discrimination provision only to “ultimate employment decisions” was inconsistent with the language of Title VII itself. Thus, the court abandoned this requirement for demonstrating an adverse employment action. See Hamilton v. Dallas Cnty., 79 F.4th 494, 499–502 (5th Cir. 2023) (en banc). Fifth Circuit precedent, although persuasive authority, is not binding on this Court. In the absence of contrary authority from the Texas Supreme Court or this Court sitting en banc, we continue to be bound by our prior precedent holding that the TCHRA’s anti-discrimination provision only applies to “ultimate employment decisions.” See Anderson v. Houston Cmty. Coll. Sys., 458 S.W.3d 633, 644 (Tex. App.—Houston [1st Dist.] 2015, no pet.); see also Mitschke v. Borromeo, 645 S.W.3d 251, 256 (Tex. 2022) (stating that under principles of horizontal stare decisis, panel of appellate court must follow “materially indistinguishable decisions of earlier panels of the same court” unless prior decision has been superseded by higher authority, such as decision by Texas Supreme Court or “an en banc decision of the court of appeals itself”). 25 from a supervisor, poor performance reviews, hostility from fellow employees,

verbal threats to fire, criticism of the employee’s work, or negative employment

evaluations. Id.

Poulos alleged that the City discriminated against her based on her race when

“she was scrutinized to a higher level than her white coworkers and berated and

humiliated before her peers by her supervisor” and “was held to a higher standard

than her white coworkers, including higher scrutiny for her time and work

performance.” As part of this higher scrutiny, Poulos’s supervisor allegedly required

her to request permission before using the restroom, which her white co-workers did

not have to do. She also alleged that she “was denied requests for leave days

requested weeks in advance, while her white coworkers were allowed to leave early

without prior notice.”2 The City argues that Poulos has not alleged that she has

suffered an adverse employment action. We agree with the City.

2 Poulos also alleged that she was “denied promotions she was qualified for in favor of white employees with less experience and qualifications.” Poulos alleged that one of her less-experienced white coworkers was promoted to the position of Assistant Supervisor in April 2020, but Poulos and “her non-white colleagues were not given the opportunity to apply to this position.” Because this action did not occur within 180 days of Poulos filing her charge of discrimination in October 2021, any complaints about this action are untimely. See TEX. LABOR CODE § 21.202(a); Prairie View A&M Univ. v. Chatha, 381 S.W.3d 500, 513–14 (Tex. 2012); Harris Cnty. Hosp. Dist. v. Parker, 484 S.W.3d 182, 197 (Tex. App.—Houston [14th Dist.] 2015, no pet.) (concluding that claim for failure to promote was untimely because plaintiff filed EEOC charge more than 180 days after he was denied promotions). Poulos does not argue on appeal that her allegations concerning a promotion were timely. 26 Poulos’s complaints that her supervisors scrutinized her more closely than her

white coworkers and required her to obtain permission before using the restroom are

not “ultimate employment decisions” under the TCHRA. See id. at 643; Winters,

132 S.W.3d at 575 (stating that TCHRA does not “address every decision made by

employers that arguably might have some tangential effect upon employment

decisions”); see also Parker, 484 S.W.3d at 196–97 (stating that blaming plaintiff

for problems unrelated to job performance, badgering him over attendance and

tardiness, screaming and yelling at him in front of his employees, writing him up for

poor performance, lowering his performance evaluation, and scrutinizing, micro-

managing, and criticizing him were not “ultimate employment decisions”); Elgaghil,

45 S.W.3d at 143 (stating that “[a]s a matter of law” actions including verbal

harassment, write-ups for poor work performance, and threats of termination are not

adverse employment decisions). Therefore, to the extent Poulos complains about

these actions by the City, she has not stated a claim that is actionable under the

TCHRA.

Poulos also alleged that she requested leave on June 16, 2021, to attend a

medical appointment before a scheduled surgery, but her supervisor refused to

approve the request. Poulos alleged that, on a previous occasion, one of her white

co-workers “asked to leave early from work that same day” without providing any

advance notice to her supervisor, and the supervisor granted the request. Although

27 this Court has stated that adverse employment actions include decisions “granting

leave,” see Anderson, 458 S.W.3d at 643, the parties have pointed to no binding

authority holding that the denial of an employee’s request to take one day of leave

on a specific date constitutes an adverse employment decision.

The Fifth Circuit and the Southern District of Texas, however, have held that

such a decision does not constitute an adverse employment action. See McElroy v.

PHM Corp., 622 F. App’x 388, 390–91 (5th Cir. 2015) (per curiam) (concluding

that employer’s denial of permission for employee to “leave work right away on a

single day” for medical issue did not qualify as adverse employment action); Beltran

v. Univ. of Tex. Health Sci. Ctr. at Houston, 837 F. Supp. 2d 635, 643 (S.D. Tex.

2011) (noting that courts routinely conclude that denial of short term vacation time

is not adverse employment action). The Fifth Circuit has distinguished between

(1) an employer’s decision denying an employee’s right to take leave or the amount

of leave available and (2) an employer’s decision affecting the specific date, time,

and manner that leave is taken. McElroy, 622 F. App’x at 391; see Ogden v. Potter,

397 F. App’x 938, 939 (5th Cir. 2010) (per curiam) (stating, in retaliation case, that

“[a] single denial of leave is not an adverse employment action when it affects leave

on a specific date and time, but not the employee’s amount of or right to take leave

in general, because a reasonable employee would not have found the action to be

materially adverse”). Under Fifth Circuit precedent, the latter category of employer

28 decisions does not constitute adverse employment actions. See Price v. Wheeler, 834

F. App’x 849, 857 (5th Cir. 2020) (noting court’s prior holdings that “a single denial

of leave for a specific date and time” is not adverse employment action); Ogden v.

Brennan, 657 F. App’x 232, 235 (5th Cir. 2016) (per curiam) (same); McElroy, 622

F. App’x at 391 (same).

Here, Poulos does not allege that she was denied the right to take leave or that

the amount of leave that she was allowed was less than the amount allowed for co-

workers of different races. Instead, she alleges that her supervisor denied her request

for leave on a specific date to attend a medical appointment, while her supervisor

had, in the past, allowed one of her white co-workers to take leave with no prior

notice given. We conclude that this decision was not an adverse employment action

under the TCHRA. See Anderson, 458 S.W.3d at 644 (stating that TCHRA only

addresses “ultimate employment decisions”); Esparza, 471 S.W.3d at 909 (“[A]n

adverse employment action requires a significant change in employment status.”).

We therefore conclude that Poulos has not alleged a prima facie case of

discrimination based on the denial of requested leave. See Anderson, 458 S.W.3d at

643.

Because Poulos has not alleged an adverse employment action, we conclude

that she has not alleged a prima facie case of race discrimination, and therefore this

claim does not sufficiently allege a TCHRA violation such that the City’s

29 governmental immunity is waived. See Nicholas, 461 S.W.3d at 135; see also Clark,

544 S.W.3d at 770 (“The TCHRA waives immunity, but only when the plaintiff

states a claim for conduct that actually violates the statute.”). We therefore hold that

the trial court erred to the extent that it denied the City’s Rule 91a motion to dismiss

Poulos’s race-discrimination claim.

b. Poulos’s hostile work environment claim

A hostile work environment claim “entails ongoing harassment, based on the

plaintiff’s protected characteristic, so sufficiently severe or pervasive that it has

altered the conditions of employment and created an abusive working environment.”

Anderson, 458 S.W.3d at 646 (quoting Bartosh v. Sam Houston State Univ., 259

S.W.3d 317, 324 (Tex. App.—Texarkana 2008, pet. denied)). The elements of a

prima facie case of hostile work environment are: (1) the employee belongs to a

protected group; (2) the employee was subjected to unwelcome harassment; (3) the

harassment complained of was based on the protected characteristic; (4) the

harassment complained of affected a term, condition, or privilege of employment;

and (5) the employer knew or should have known of the harassment in question and

failed to take prompt remedial action. Id. If the employee complains of harassment

by a supervisor, the employee needs only prove the first four elements. Id.

To satisfy the fourth element of a hostile work environment claim, the

employee must show that the workplace was “permeated with discriminatory

30 intimidation, ridicule, and insult sufficiently severe or pervasive to create a hostile

or abusive working environment.” Donaldson v. Tex. Dep’t of Aging & Disability

Servs., 495 S.W.3d 421, 445 (Tex. App.—Houston [1st Dist.] 2016, pet. denied).

The work environment must be both objectively and subjectively offensive—“one

that a reasonable person would find hostile or abusive and one that the victim

perceived to be so.” Id. Although the “abusiveness” standard does not necessarily

require “any tangible psychological impact on the victim,” it does require “extreme

conduct.” Twigland Fashions, Ltd. v. Miller, 335 S.W.3d 206, 219 (Tex. App.—

Austin 2010, no pet.). Incidental or occasional race-based comments, discourtesy,

rudeness, or isolated incidents (unless those incidents are “extremely serious”) “are

not discriminatory changes in the terms and conditions of a worker’s employment.”

Univ. of Tex. Health Sci. Ctr. at Tyler v. Nawab, 528 S.W.3d 631, 641 (Tex. App.—

Texarkana 2017, pet. denied).

In determining whether a hostile work environment exists, we look to all the

circumstances, including the frequency of the discriminatory conduct; its severity;

whether the conduct was physically threatening or humiliating, or a mere offensive

utterance; and whether it unreasonably interfered with the employee’s work

performance. Donaldson, 495 S.W.3d at 445; Anderson, 458 S.W.3d at 646. “The

availability of a hostile work environment claim is intended to prohibit and prevent

conduct that is so severe and pervasive that it destroys a protected class member’s

31 opportunity to succeed in the workplace.” City of Houston v. Fletcher, 166 S.W.3d

479, 490 (Tex. App.—Eastland 2005, pet. denied) (quotations omitted).

With respect to her hostile work environment claim, Poulos alleged that she

was subjected to disparate treatment because her supervisor “would monitor and

interrogate [Poulos] more than her white co-workers.” She alleged that she “was

held to a different standard for her attendance and break times compared to her white

coworkers,” who were able to leave early or sleep on the job without repercussions

while Poulos “was harassed and questioned about her time and attendance.” Poulos

further alleged that she “was verbally assaulted by her supervisor and endured

hostility and yelling on a frequent basis.”

To make a prima facie case for a hostile work environment, however, the

plaintiff must allege that the harassment that she complains of was based upon the

protected characteristic. See Parker, 484 S.W.3d at 197; Anderson, 458 S.W.3d at

646. Although Poulos alleges that she was treated differently from her white

coworkers in several respects, she makes no allegations that the harassment that she

allegedly suffered was based upon her race. For example, she does not allege that

her supervisors used racial slurs, made derogatory comments based on her race, or

otherwise referenced her race in any of the allegedly harassing interactions with

Poulos. See Nawab, 528 S.W.3d at 641 (stating that incident in which doctor of

Indian descent “mocked [plaintiff’s] Pakistani accent” “could be claimed to have

32 been based on race or nationality,” but ultimately concluding that this incident and

other comments and negative evaluations did not state prima facie case of race or

nationality-based hostile work environment); Barnes v. Prairie View A&M Univ.,

No. 14-15-01094-CV, 2017 WL 2602723, at *3 (Tex. App.—Houston [14th Dist.]

June 15, 2017, pet. denied) (mem. op.).

Moreover, even if Poulos has alleged harassment based on her race, we agree

with the City that she has not stated a prima facie case that the alleged harassment

was so “severe or pervasive” that it affected a term, condition, or privilege of

Poulos’s employment. See Donaldson, 495 S.W.3d at 445; Anderson, 458 S.W.3d

at 647. Poulos alleged that “[t]he harassment was severe and pervasive and interfered

with [her] employment.” She did not, however, allege any facts relating to how her

work performance had been affected due to the alleged harassment. See Anderson,

458 S.W.3d at 647 (considering plaintiff’s deposition testimony that supervisor’s

“conduct did not affect her ability to perform her work or the quality of her work”).

Nor has Poulos alleged “extreme” conduct that affected the terms and

conditions of her employment. See Brantley, 558 S.W.3d at 757–58 (concluding

allegations that plaintiff was “falsely accused of disrespectful behavior and

mistakes,” called racial slur, told that female employees were afraid of him because

he was “tall, Black and bald,” told he might be shot if he wore hooded sweatshirt,

was paid less than white, female employees, and was “stripped of his duties” were

33 not objectively severe or pervasive enough to affect term, condition, or privilege of

employment); Parker, 484 S.W.3d at 198 (concluding plaintiff’s allegations that his

manager told another employee that “black males don’t—don’t work” and plaintiff

was “just here to sit on the clock,” coupled with allegations that plaintiff was blamed

for problems unrelated to his performance, was required to “improperly write up”

employees, was “badgered about attendance and tardiness,” was “screamed and

yelled at” in front of employees, was “written up for poor performance,” had

performance evaluation lowered, and “was scrutinized, micro-managed and

constantly criticized” was not extreme and did not affect terms and conditions of

employment).

We conclude that Poulos has not alleged a prima facie case of hostile work

environment based on her race. See Anderson, 458 S.W.3d at 646. We therefore hold

that the trial court erred to the extent that it denied the City’s rule 91a motion to

dismiss Poulos’s hostile work environment claim. See Clark, 544 S.W.3d at 770

(“The TCHRA waives immunity, but only when the plaintiff states a claim for

conduct that actually violates the statute.”).

c. Poulos’s retaliation claim

Poulos also asserted a retaliation claim, alleging that she formally complained

about the discrimination she was facing to “her director” on October 8, 2019, and he

responded by “dismissing her concerns and threatening to issue her a formal write

34 up for voicing the inequality she was facing.” Poulos alleged that following this

complaint, she “was subjected to additional [harassment] by her supervisor and

denied leave days requested for [her] surgical medical procedures.” She alleged that

she suffered an adverse employment action on August 6, 2021, when her supervisor

allegedly ignored her medical restrictions and accommodations following her

surgery and directed her to lift heavy water bottles. Poulos also alleged that she filed

her EEOC charge on October 13, 2021, but the City “continued its biased and unfair

treatment of [her] and refused to investigate or properly address [her] complaints

through February 2022.” She alleged that she “has continued to face additional

[harassment] from her supervisors . . . following the filing of her EEOC charge.” She

further alleged that “[f]ollowing her EEOC complaint,” she “has been assigned

additional work without being compensated for the responsibilities and continues to

be closely monitored with her bathroom breaks by her supervisor and harassed for

any breaks or requests for time off.”

The TCHRA prohibits an employer from retaliating against an employee for

engaging in certain protected activities. TEX. LABOR CODE § 21.055; Anderson, 458

S.W.3d at 647. To establish a prima facie case for retaliation, the employee must

show: (1) she engaged in an activity protected by the TCHRA; (2) she experienced

a material adverse employment action; and (3) a causal link exists between the

protected activity and the adverse employment action. Clark, 544 S.W.3d at 782;

35 Anderson, 458 S.W.3d at 647. “Protected activities” under the TCHRA consist of:

(1) opposing a discriminatory practice; (2) making or filing a charge of

discrimination; (3) filing a complaint; or (4) testifying, assisting, or participating in

any manner in an investigation, proceeding, or hearing. TEX. LABOR CODE § 21.055;

Anderson, 458 S.W.3d at 647.

Retaliation and race-based discrimination are distinct legal theories. See Univ.

of Tex. v. Poindexter, 306 S.W.3d 798, 809 (Tex. App.—Austin 2009, no pet.)

(“Retaliation is a different legal theory from race-based discrimination.”); Davis v.

Educ. Serv. Ctr., 62 S.W.3d 890, 894 (Tex. App.—Texarkana 2001, no pet.)

(“Retaliation is an independent violation of the TCHRA . . . .”); see also Clark, 544

S.W.3d at 763 (“A retaliation claim is related to, but distinct from, a discrimination

claim, and one may be viable even when the other is not.”). In the retaliation context,

unlike in the context of a racial discrimination claim, the “adverse employment

action” is not limited to “ultimate employment decisions.” Burlington N. & Santa

Fe Ry. Co. v. White, 548 U.S. 53, 67 (2006); Navy v. Coll. of the Mainland, 407

S.W.3d 893, 901 (Tex. App.—Houston [14th Dist.] 2013, no pet.). The employee

must show that a reasonable employee would have found the challenged action

“materially adverse,” meaning that the action “might well have dissuaded a

reasonable worker from making or supporting a charge of discrimination.” White,

548 U.S. at 68; Clark, 544 S.W.3d at 788. “[N]ormally, petty slights, minor

36 annoyances, and simple lack of good manners will not create such deterrence.”

White, 548 U.S. at 68; Navy, 407 S.W.3d at 901.

In its Rule 91a motion to dismiss, the City did not differentiate between

Poulos’s claim for racial discrimination and her claim for retaliation. The City did

not address retaliation in the motion other than to state that for discrimination and

retaliation cases, “Texas jurisprudence parallels federal cases construing and

applying equivalent federal statutes, like Title VII” and that a plaintiff “must

demonstrate a prima facie case of discrimination or retaliation under the

requirements of the TCHRA” to establish a waiver of immunity. The City argued

that Poulos failed to allege facts showing an adverse employment action, but it did

not address the distinction between adverse employment actions in the racial-

discrimination context and in the retaliation context. On appeal, aside from

summarily stating that Poulos failed to demonstrate a prima face case of retaliation,

which she must do to establish a waiver of immunity, the City does not address the

elements of a retaliation claim or analyze how Poulos’s pleadings fail to state a prima

facie case on this claim.

A Rule 91a motion to dismiss “must identify each cause of action to which it

is addressed, and must state specifically the reasons the cause of action has no basis

in law, no basis in fact, or both.” TEX. R. CIV. P. 91a.2; Reaves v. City of Corpus

Christi, 518 S.W.3d 594, 606 (Tex. App.—Corpus Christi–Edinburg 2017, no pet.).

37 Even though the City raises an immunity challenge in its Rule 91a motion, the City

must still follow the procedural requirements specifically set out in that rule. See

Reaves, 518 S.W.3d at 606–07 (concluding that case must be “judged under the

constraints of rule 91a, since that is the procedural framework which the City's

motion invoked, upon which the appellants relied, and by which the trial court

decided this case” and declining “to apply the rules applicable to pleas to the

jurisdiction to the extent that they differ from rule 91a”). We conclude that the City

failed to specifically state the reasons why Poulos’s cause of action for retaliation

has no basis in law. We hold that the trial court therefore did not err to the extent

that it denied the City’s motion to dismiss this claim.

We sustain the City’s second issue in part.3

3 We note that Rule 91a’s dismissal procedure is “in addition to, and does not supersede or affect, other procedures that authorize dismissal.” TEX. R. CIV. P. 91a.9. 38 Conclusion

We affirm the order of the trial court to the extent that it denied the City’s

Rule 91a motion to dismiss Poulos’s retaliation claim. We reverse the order of the

trial court to the extent that it denied the City’s Rule 91a motion on (1) Poulos’s

race-discrimination claim and (2) Poulos’s hostile work environment claim. We

render judgment dismissing these two claims.

April L. Farris Justice

Panel consists of Justices Hightower, Rivas-Molloy, and Farris.