Opinion issued September 5, 2013.
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-13-00052-CV ——————————— FORT BEND INDEPENDENT SCHOOL DISTRICT, Appellant V. TYRA P. WILLIAMS, Appellee
On Appeal from the 268th District Court Fort Bend County, Texas Trial Court Case No. 08-DCV-164954
MEMORANDUM OPINION
Tyra Williams sued her former employer, Fort Bend Independent School
District, for unlawful employment practices under the Texas Commission on
Human Rights Act. See TEX. LAB. CODE ANN. § 21.001−.556 (West 2006 & Supp.
2012). In this interlocutory appeal, the District challenges the trial court’s denial of its combined plea to the jurisdiction and motion for summary judgment based on
immunity from suit and exhaustion of administrative remedies. We reverse and
render judgment dismissing the case.
Background
Tyra Williams worked for the Fort Bend Independent School District as a
teacher for four years before she resigned. When she resigned, Williams filed suit
alleging that she had suffered race discrimination, a hostile work environment, and
retaliation, ultimately culminating in her constructive discharge. 1 Williams is an
African-American female.
Williams’s lawsuit alleges that she began to suffer discriminatory treatment
when she was hired to teach English at Elkins High School, a school Williams
describes as a “white school.” According to Williams, other teachers in the English
Department treated her “oddly” because of her race and suggested that she was not
qualified to teach at Elkins because she previously worked at a “black school.” At
least one student was permitted to withdraw from Williams’s class after
complaining that “he didn’t do black teachers.” Williams alleges that, when she
complained of unequal treatment to school administrators, she was subjected to a
campaign of harassment, excessive scrutiny, and unwarranted discipline. Tempers
1 Williams initially sued the District and eleven individuals in the District’s employ; however, Williams later non-suited all of the individual defendants, leaving the District as the only remaining defendant. 2 flared at one disciplinary meeting, and Williams was escorted off campus and
placed on paid administrative leave. 2
After she was placed on administrative leave, Williams filed a charge of race
discrimination and retaliation with the EEOC. While the EEOC charge was
pending, Williams extended her absence from the school by taking temporary
disability leave to recover from anxiety, panic attacks, and depression allegedly
caused by work-related stress. When Williams returned from temporary disability
leave, there was no longer a teaching position for her at Elkins. Williams alleges
that the District discriminated and retaliated against her by removing her from her
position at Elkins and replacing her with a less qualified white teacher. Williams
also claims that she was treated differently from other similarly situated teachers
because another teacher in the English Department, who is white, was not replaced
after taking a leave of absence.
While she could not return to Elkins, Williams was not terminated, demoted,
or paid less; instead, the District transferred her to M.R. Wood, the alternative high
school to which Williams had requested reassignment in an employee grievance
2 The letter notifying Williams of her placement on administrative leave indicated that the leave was “due to an investigation of [Williams’s] alleged misconduct.” A grievance hearing officer instructed that the letter should be removed from Williams’s file because the reason for the placement was not to allow further investigation but was to allow Williams to “cool off.” The grievance hearing findings indicate that the leave period was for the remainder of the school day. Williams did not return the following day because she took temporary disability leave. 3 form. Williams alleges that she had to take another leave of absence when an M.R.
Wood student verbally abused and physically intimidated her. Williams’s doctor
authorized her return to work the next school year “in a non-alternative setting,”
but the District initially placed her back at M.R. Wood. The District claimed the
assignment was a mistake and offered Williams her choice of teaching positions
from a list of schools with job openings. Williams filed an amended charge with
the Equal Employment Opportunity Commission, alleging that the District’s
decision to reassign her to M.R. Wood was an act of retaliation.
Ultimately Williams was placed at Willowridge High School. Williams
contends that the environment at Willowridge was immediately hostile, and she
attributes that hostility to her opposition to race-based discrimination. After about
six months at Willowridge, Williams, along with seventeen other teachers, was
placed on a staff-reduction list for the next school year. Williams alleges that she
was unfairly targeted for reduction. In support of her allegation, she offered the
affidavit of a Willowridge parent recalling a conversation in which the
Willowridge principal told the parent that Williams had been transferred to the
school due to her disciplinary record and probably would not be returning. The
District, on the other hand, presented evidence that the staff-reduction list was
based primarily on the identification of teachers with the fewest years of
continuous employment along with the school’s needs. The District’s evidence also
4 showed that the list included teachers of varying races. The District’s contract with
its teachers allows reassignments to other schools in the District.
Williams’s inclusion on the staff-reduction list did not result in her
termination; instead, she was offered another teaching contract for the next school
year and was reassigned to another high school. This time, however, the school
was located more than sixty miles from Williams’s home. Williams resigned
during the summer break before the new school year.
The District challenged the trial court’s jurisdiction to hear Williams’s
claims in a combined plea to the jurisdiction and motion for summary judgment.
The District alleged that Williams could not establish a prima facie case of
discrimination or retaliation and failed to exhaust her administrative remedies with
respect to her hostile work environment and constructive discharge claims. The
District alternatively argued that neither race-based discrimination nor retaliation
motivated its employment decisions. After considering the motion, Williams’s
response, the evidence, and the arguments of counsel, the trial court denied the
District’s plea. This appeal followed.
Standards of Review
Although the District challenged the trial court’s jurisdiction in a combined
plea to the jurisdiction and motion for summary judgment, we review the filing as
5 a plea to the jurisdiction. 3 See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(8)
(West Supp. 2012). A plea to the jurisdiction is a dilatory plea that seeks dismissal
of a case for lack of subject-matter jurisdiction. Harris Cnty. v. Sykes, 136 S.W.3d
635, 638 (Tex. 2004). Whether a court has subject-matter jurisdiction is a question
of law. Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex.
2004); Tex. Natural Res. Conservation Comm’n v. IT-Davy, 74 S.W.3d 849, 855
(Tex. 2002).
Typically, a plea to the jurisdiction challenges whether the plaintiff has
alleged facts that affirmatively demonstrate the trial court’s jurisdiction to hear the
case. See Miranda, 133 S.W.3d at 226. But a plea to the jurisdiction can also
challenge the existence of those jurisdictional facts. Id. In such cases, we consider
evidence as necessary to resolve the jurisdictional issue, even if that evidence also
implicates the merits of the case. Id.
The trial court’s review of a plea challenging the existence of jurisdictional
facts “mirrors that of a traditional summary judgment motion.” Mission Consol.
Indep. Sch. Dist. v. Garcia (Garcia II), 372 S.W.3d 629, 635 (Tex. 2012)
3 Section 51.014(a)(8) of the Civil Practice and Remedies Code permits interlocutory appeals from the denial of a governmental unit’s challenge to the trial court’s subject-matter jurisdiction. TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(8) (West Supp. 2012); Tex. Dep’t of Criminal Justice v. Simons, 140 S.W.3d 338, 349 (Tex. 2004) (observing that interlocutory appeal may be taken under section 51.014(a)(8) whether jurisdictional argument is presented in a plea to jurisdiction or summary-judgment motion because right of appeal is tied to substance of issue raised and not to any particular procedural vehicle). 6 (referencing TEX. R. CIV. P. 166a(c)); Miranda, 133 S.W.3d at 228 (same). The
defendant must first meet the summary-judgment proof standard for its assertion
that the trial court lacks jurisdiction; once the defendant meets its burden, the
plaintiff is required to show that a disputed material fact exists regarding the
jurisdictional issue. Garcia II, 372 S.W.3d at 635; Miranda, 133 S.W.3d at 228. “If
a fact issue exists, the trial court should deny the plea. But if the relevant evidence
is undisputed or the plaintiff fails to raise a fact question on the jurisdictional issue,
the trial court rules on the plea as a matter of law.” Garcia II, 372 S.W.3d at 635.
Immunity from Suit and the TCHRA
Governmental immunity deprives a trial court of jurisdiction over suits
against a governmental unit absent the legislature’s consent to suit. See Garcia II,
372 S.W.3d at 636; City of Houston v. Rhule, 377 S.W.3d 734, 744 (Tex. App.—
Houston [1st Dist.] 2012, no pet.). The legislature has waived immunity from suit
for employment discrimination and retaliation claims falling under the Texas
Commission on Human Rights Act. See TEX. LAB. CODE ANN. § 21.051 (making it
unlawful for “employer” to discriminate); § 21.055 (making it unlawful for
“employer” to retaliate); § 21.002(8)(D) (defining “employer” to include
governmental entities); Mission Consol. Indep. Sch. Dist. v. Garcia (Garcia I), 253
S.W.3d 653, 660 (Tex. 2008) (concluding that legislature waived immunity for
suits against school districts when plaintiff states claim for TCHRA violation).
7 Relevant here, the TCHRA prohibits an employer from refusing to hire,
discharging, or otherwise discriminating against an employee in connection with
compensation or the terms, conditions, or privileges of employment on the basis of
race. See TEX. LAB. CODE ANN. § 21.051(1). An employer also commits an
unlawful employment practice by retaliating or discriminating against a person
who makes or files a charge of discrimination under the TCHRA. TEX. LAB. CODE
ANN. § 21.055(2). Texas courts evaluate discrimination and retaliation claims
using federal employment discrimination law, as the legislature, in adopting the
TCHRA, intended to correlate state law with federal law. Autozone, Inc. v. Reyes,
272 S.W.3d 588, 592 (Tex. 2008) (citing Ysleta Indep. Sch. Dist. v. Monarrez, 177
S.W.3d 915, 917 (Tex. 2005)); see also Shackelford v. Deloitte & Touche, LLP,
190 F.3d 398, 403 n.2 (5th Cir. 1999) (“[T]he law governing claims under the
TCHRA and Title VII is identical.”).
There are two alternative methods by which a plaintiff can prove
discrimination or retaliation. Quantum Chem. Corp. v. Toennies, 47 S.W.3d 473,
476−77 (Tex. 2001) (adopting U.S. Supreme Court’s alternative analyses for
employment discrimination cases); Dias v. Goodman Manufacturing Co., 214
S.W.3d 672, 676−77 (Tex. App.—Houston [14th Dist.] 2007, pet. denied)
(applying same analyses in retaliation case). The first method is by direct evidence
of the employer’s actions or words. Quantum Chem., 47 S.W.3d at 476. The
8 second method―the McDonnell Douglas burden-shifting scheme―applies in
cases like this one, involving only circumstantial evidence of discrimination or
retaliation. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802−05, 93 S. Ct.
1817, 1824−26 (1973); see also Garcia II, 372 S.W.3d at 634. Under McDonnell
Douglas, courts presume discrimination or retaliation if the plaintiff meets her
initial burden of establishing a prima facie case. McDonnell Douglas, 411 U.S. at
802, 93 S. Ct. at 1824; Garcia II, 372 S.W.3d at 634. The trial court has no
jurisdiction if the plaintiff fails to demonstrate the prima facie elements of her
case.4 Garcia II, 372 S.W.3d at 635−38.
“Although the precise elements of this [prima facie] showing will vary
depending on the circumstances, the plaintiff’s burden at this stage of the case ‘is
not onerous.’” Id. at 634. The plaintiff “must plead the elements of her statutory
cause of action—here the basic facts that make up the prima facie case—so that the
court can determine whether she has sufficiently alleged a TCHRA violation,” but
4 Once the plaintiff establishes a prima facie case under McDonnell Douglas, the burden shifts to the defendant to rebut the presumption of discrimination with evidence of a legitimate, nondiscriminatory reason for the employment action. 411 U.S. at 802, 93 S. Ct. at 1824. It then becomes the plaintiff’s burden to show that the reason offered was a pretext for discrimination. Id. at 807, 93 S. Ct. at 1826– 27; Quantum, 47 S.W.3d at 477. However, the Texas Supreme Court determined in Garcia II that only the prima facie elements of the plaintiff’s case are jurisdictional. 372 S.W.3d at 635−38. Because our review of this interlocutory appeal is limited to the trial court’s determination of its own subject-matter jurisdiction, we do not consider any matters beyond whether Williams presented a prima facie case of discrimination or retaliation. 9 “she will only be required to submit evidence if the [employer] presents evidence
negating one of those basic facts.” Id. at 637.
A. Race discrimination
According to Williams, the District violated the TCHRA’s prohibition
against race-based discrimination. See TEX. LAB. CODE ANN. § 21.051. Williams’s
petition states in pertinent part:
. . . [Williams] was fully qualified to perform her duties as an English teacher for [the District]. [Williams], a black female, was treated differently than similarly situated persons who were non-black by being subjected to hostile treatment by non-black employees and subjected to different rules based upon her race and/or color.
[Williams] was subjected to excessive scrutiny while other non- black employees were not being treated in the same or similar manner . . . . Additionally, [Williams] was replaced by a non-certified white teacher while out on leave, where similarly situated teachers were not treated in the same manner. By being replaced, [Williams] was subject to adverse employment conditions. Said acts were taken against [Williams] because of her race. [Williams] was subject to disparate treatment on the basis of her race. [Williams’s] treatment was in violation of TCHRA.
These allegations track the elements of a prima facie claim for race discrimination
under the TCHRA, which are that Williams was (1) a member of a protected class,
(2) qualified for her teaching position, (3) subjected to an adverse employment
decision, and (4) replaced by someone outside of the protected class or treated less
favorably than similarly situated members outside of the protected class. Autozone,
272 S.W.3d at 592 (citing Ysleta Indep. Sch. Dist., 177 S.W.3d at 917).
10 The first and second elements of Williams’s prima facie case are not in
dispute in this appeal, as the District’s jurisdictional arguments relate only to the
third and fourth elements. We limit our discussion to the third element―whether
the District subjected Williams to an adverse employment decision―because it is
dispositive of the discrimination claim. The District argues that Williams’s
allegations of excessive scrutiny, replacement by a member outside of the
protected class, and constructive discharge do not rise to the level of an adverse
employment action as a matter of law. We agree.
The District correctly asserts that, in the discrimination context, not every
employment decision is actionable as an unlawful employment practice. Anti-
discrimination laws address “ultimate employment decisions,” such as decisions on
hiring, firing, promoting, or compensating; they do not address every decision
made by employers that might have some tangential effect upon employment
decisions. See Green v. Adm’rs of Tulane Educ. Fund, 284 F.3d 642, 657 (5th Cir.
2002); Winters v. Chubb & Son, Inc., 132 S.W.3d 568, 575 (Tex. App.—Houston
[14th Dist.] 2004, no pet.). Poor performance evaluations, unjust criticism, and
being placed on probation historically are not ultimate employment decisions. See
McCoy v. City of Shreveport, 492 F.3d 551, 559 (5th Cir. 2007).
The excessive scrutiny and unwarranted discipline alleged by Williams fall
within the category of employment decisions that are not ultimate decisions and
11 thus do not contribute to her prima facie case as adverse employment decisions.
See Winters, 132 S.W.3d at 575 (“[A]dverse employment actions do not include
‘events such as disciplinary filings, supervisor’s reprimands, and even poor
performance by the employee―anything which might jeopardize employment in
the future.’”) (quoting Mattern v. Eastman Kodak Co., 104 F.3d 702, 708 (5th Cir.
2007)); Elgaghil v. Tarrant Cnty. Junior Coll., 45 S.W.3d 133, 143 (Tex. App.—
Fort Worth 2000, pet. denied) (“Ultimate employment decisions that are actionable
include decisions to hire, discharge, promote, compensate, or grant leave, but not
events such as disciplinary filings, supervisor’s reprimands, or even poor
performance reviews.”) (citing Messer v. Meno, 130 F.3d 130, 140 (5th Cir.
1997)). Williams’s allegations that the District replaced her with a Caucasian
teacher at Elkins and constructively discharged her by transferring her to a school
more than sixty miles from her home, however, require closer examination.
We turn first to the matter of Williams’s replacement. While the word
“replaced” frequently is used as a synonym for “discharged” in employment
discrimination cases, it is undisputed in this case that the District did not terminate
Williams’s employment when she returned from her leave of absence at Elkins.
Rather, the District transferred Williams to a teaching position at another school,
M.R. Wood. In some cases, a transfer may be the equivalent of a demotion and,
hence, qualify as an adverse employment action. See Alvarado v. Tex. Rangers,
12 492 F.3d 605, 612 (5th Cir. 2007) (noting that transfer can be an adverse
employment action if “the new position proves objectively worse―such as being
less prestigious or less interesting or providing less room for advancement”); see
also Scott v. Godwin, 147 S.W.3d 609, 617 (Tex. App.—Corpus Christi 2004, no
pet.) (analyzing adverse-employment-action requirement for retaliation claim
under different statute but explaining that employee must show transfer makes job
objectively worse).
The District presented undisputed evidence that the transfer was not the
equivalent of a demotion. Williams’s title, salary, and job responsibilities were not
reduced. The District also presented evidence that Williams requested an
assignment at either M.R. Wood or one other school in the employee grievance
form she filed after being denied permission to return to Elkins. Because the
District’s evidence negated a jurisdictional fact―whether the District subjected
Williams to an adverse employment decision―it was incumbent upon Williams to
respond with evidence raising a fact issue. See Garcia II, 372 S.W.3d at 637; see
also Cox v. Waste Mgmt. of Tex., Inc., 300 S.W.3d 424, 433 (Tex. App.—Fort
Worth 2009, pet. denied) (observing, in sexual harassment case, that transfer
unaccompanied by change in salary, benefits, job responsibilities, or career
opportunities is insufficient as matter of law to qualify as adverse employment
action); Padilla v. Flying J, Inc., 119 S.W.3d 911, 915−16 (Tex. App.—Dallas
13 2003, no pet.) (holding that transfer that does not result in economic harm or
significantly different job responsibilities is not actionable employment action).
She complains in this Court that M.R. Wood was “an undesirable campus
placement” and that her assignment there was “outside of her teaching
certification,” but she does not cite to any supporting evidence. For example,
beyond the bare assertion in her brief that teaching at M.R. Wood was undesirable,
Williams did not present evidence that the school was less prestigious than Elkins.
Nor did she present evidence that teaching at M.R. Wood required fewer
qualifications or involved fewer opportunities for advancement or increases in pay.
We therefore conclude that the transfer from Elkins to M.R. Wood was not an
adverse employment decision and thus does not contribute to Williams’s prima
facie case.
The District’s same evidence influences our determination of whether
Williams satisfied the adverse employment decision element by establishing that
she was constructively discharged when she was placed on the staff-reduction list
at Willowridge and transferred to a school sixty miles away. See Winters, 132
S.W.3d at 575 (observing that proof of constructive discharge permits employee
who resigned to satisfy adverse employment decision element). “A constructive
discharge occurs when an employer makes conditions so intolerable that an
employee reasonably feels compelled to resign.” Hammond v. Katy Indep. Sch.
14 Dist., 821 S.W.2d 174, 177 (Tex. App.—Houston [14th Dist.] 1991, no writ). In
determining whether an employee acted reasonably, courts consider the following
factors, singly or in combination: (1) demotion; (2) reduction in salary; (3)
reduction in job responsibilities; (4) reassignment to menial or degrading work; (5)
reassignment to work under a supervisor who subjected the plaintiff to
discriminatory or harassing behavior; (6) badgering, harassment, or humiliation by
the employer calculated to encourage the employee’s resignation, or (7) any offers
of early retirement on terms that would make the employee worse off whether or
not she accepted the offer. Winters, 132 S.W.3d at 575 (citing Barrow v. New
Orleans S.S. Ass’n., 10 F.3d 292, 297 (5th Cir. 1994)); Machado v. Goodman Mfg.
Co., L.P., 10 F. Supp. 2d 709, 719 (S.D. Tex. 1997).
The District negated the only factual allegations in the petition that could
support Williams’s claim that her transfer constituted a constructive discharge. It
directly negated the first, second, and third factors with undisputed evidence that
Williams was not demoted, her salary was not reduced, and her job responsibilities
remained the same; the only change was her location. The District also
demonstrated that the staff-reduction list was prepared by its central administration
using staffing-allocation formulas based primarily on seniority and the school’s
needs and that Williams agreed in her teaching contract that she was subject to
reassignment within the District. This evidence negates the sixth factor―a
15 humiliation calculated to encourage Williams’s resignation. Because Williams
does not allege that the District assigned her to menial or degrading tasks or made
any offers of voluntary resignation, the fourth and seventh factors also weigh
against a finding of constructive discharge.
Williams’s response did not raise a fact issue on whether she was
constructively discharged. Although she presented evidence that she felt compelled
to resign when she was placed on the staff-reduction list at Willowridge and
subsequently transferred to a campus more than sixty miles from her home, her
subjective feelings are insufficient to raise a fact issue as to whether another
similarly situated employee reasonably would have felt compelled to resign. See
Hammond, 821 S.W.2d at 177; Robinson v. Waste Mgmt. of Tex., 122 F. App’x
756, 758 (5th Cir. 2004) (explaining that “subjective state of mind of the employee
is irrelevant” to constructive discharge analysis). Neither did Williams present any
evidence that her placement on the staff-reduction list or her reassignment to a
more distant campus was calculated by the District to encourage her resignation.
For example, there is no evidence that there were openings closer to her home or
that similarly situated white employees from Willowridge were offered positions at
schools in more desirable locations. Finally, she did not show how much farther
the new school was from her home than the other District schools where she taught
16 or where she could have been assigned. 5 We therefore conclude that there is not a
fact issue with regard to whether Williams was constructively discharged.
Accordingly, we hold that the relevant undisputed evidence presented by the
District negates the adverse employment decision element of Williams’s prima
facie case for race discrimination. Because Williams has not established a prima
facie case of race discrimination, the trial court lacks subject-matter jurisdiction
over that claim and erred in denying the District’s plea.
B. Retaliation
Williams’s lawsuit also includes a claim for violation of the TCHRA’s
prohibition against retaliation. See TEX. LAB. CODE ANN. § 21.055. To establish a
prima facie case of retaliation under the TCHRA, Williams had to show that: (1)
she engaged in a protected activity; (2) the District took an adverse employment
action; and (3) the District did so because of her participation in the protected
activity. Dias v. Goodman Mfg. Co., L.P., 214 S.W.3d 672, 676 (Tex. App.—
Houston [14th Dist.] 2007, pet. denied); see also Pineda v. United Parcel Serv.,
Inc., 360 F.3d 483, 487 (5th Cir. 2007). The District does not dispute that Williams
engaged in a protected activity. Again, the District’s jurisdictional challenge relates
5 The record indicates in various places that Williams lived either in Pearland or near downtown Houston, but the record does not include the dates of residence at either place or the distance between either those places and the various schools at which Williams taught. 17 primarily to whether Williams suffered an adverse employment action.6 Williams
responds that the District took actions that might well dissuade a reasonable
teacher from opposing discrimination by placing her on paid administrative leave,
denying her the opportunity to regain employment at Elkins, reassigning her to
M.R. Woods after a student verbally abused and physically intimidated her there,
subjecting her to excess scrutiny, placing her on the Willowridge staff-reduction
list, and reassigning her to a campus located sixty miles from her home.
Although there is significant overlap between the facts alleged in support of
Williams’s discrimination and retaliation claims, our holding that Williams did not
suffer an adverse employment decision in the discrimination context does not
dictate the same conclusion in the retaliation context. Both federal and Texas
courts afford adverse employment actions a broader scope in the retaliation
context. See Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68, 126 S.
Ct. 2405, 2415 (2006); Montgomery Cnty. v. Park, 246 S.W.3d 610, 614 (Tex.
2007) (approving of Supreme Court’s reasoning in Burlington as applied to
retaliation claim under Texas Whistleblower Act). “An employer’s action is an
adverse employment action for purposes of a retaliation claim when it is harmful to
the point that it could ‘dissuade a reasonable worker from making or supporting a
6 The District also challenges whether there is a causal connection between Williams’s protected activity and its allegedly retaliatory acts, but we do not reach this issue given our resolution of the retaliation claim on other grounds. 18 charge of discrimination.’” Cox, 300 S.W.3d at 438 (quoting Burlington N., 548
U.S. at 57, 126 S. Ct. at 2405).
For the reasons we stated in our discussion of Williams’s discrimination
claim, the District’s undisputed evidence that Williams never suffered any change
in title, salary, or job responsibilities and that she contractually agreed that she was
subject to reassignment within the District satisfied the District’s burden to negate
the prima facie element of an adverse employment action and shifted the burden to
Williams to raise a fact issue. She has failed to direct us to any evidence indicating
that her transfer from Elkins to M.R. Wood or her placement on the staff-reduction
list at Willowridge made her circumstances objectively worse. Likewise, although
Williams was unwilling to work at a school located sixty miles from her home, she
presented no evidence that would support a conclusion the District could dissuade
a reasonable teacher from making a discrimination claim by assigning her to a
more remote campus.
The only arguably adverse employment action taken by the District was
placing Williams on paid administrative leave. In McCoy v. City of Shreveport, the
Fifth Circuit suggested that placing an employee on paid administrative leave may
be, but is not necessarily, evidence of adverse employment action in a retaliation
case. See 492 F.3d at 560−61. But unlike in McCoy, there is no evidence here of
how the administrative leave impacted Williams’s employment. For instance,
19 Williams does not direct us to any evidence regarding what stigma accompanied
placement on administrative leave, whether she had any control over her
reinstatement, or whether placement on administrative leave negatively affected
her chances for future advancement. When she returned to work, she was assigned
to a school that she requested.
We conclude that there is not a fact issue as to whether Williams suffered an
adverse employment action for purposes of her retaliation claim. Because Williams
has not established a prima facie case of retaliation, we hold the trial court lacks
subject-matter jurisdiction over that claim and erred in denying the District’s plea.
Exhaustion of Administrative Remedies
The District further argues that the trial court lacks subject-matter
jurisdiction over Williams’s remaining claims for hostile work environment and
constructive discharge because she failed to exhaust her administrative remedies
by omitting those claims from her EEOC charge. Williams responds that her
EEOC charge, read broadly, encompassed the challenged claims, but even if it did
not, the hostile work environment and constructive discharge claims could
reasonably be expected to grow out of the investigation of the discrimination and
retaliation claims stated in the charge.7
7 Williams also asserts that the continuing-violation doctrine saves her claims related to events occurring after she filed her EEOC charge, including events contributing to the hostile work environment and her resignation. The continuing- 20 The exhaustion of administrative remedies is a jurisdictional prerequisite to
filing suit for unlawful employment practices. See City of Waco v. Lopez, 259
S.W.3d 147, 149 (Tex. 2008); Hoffman-La Roche, Inc. v. Zeltwanger, 144 S.W.3d
438, 446 (Tex. 2004); Santi v. Univ. of Tex. Health Sci. Ctr. at Houston, 312
S.W.3d 800, 804 (Tex. App.―Houston [1st Dist.] 2009, no pet.). Under the
TCHRA, the exhaustion of administrative remedies begins with the filing of a
charge of discrimination with either the Texas Workforce Commission or the
EEOC. 8 See TEX. LAB. CODE ANN. §§ 21.202, .208, .254, .256. The charge notifies
the employer of the claim, narrows the issues, and gives the employer and the
violation doctrine is an exception to the 180-day limitations period for filing an administrative charge of unlawful employment practices. Santi v. Univ. of Tex. Health Sci. Ctr. at Houston, 312 S.W.3d 800, 804−05 (Tex. App.—Houston [1st Dist.] 2009, no pet.) (observing that failure to timely file administrative complaint deprives trial court of subject-matter jurisdiction). Generally, the limitations period begins upon the unlawful act’s occurrence, not when the act’s consequences are felt. See Davis v. Autonation USA Corp., 226 S.W.3d 487, 491 (Tex. App.—Houston [1st Dist.] 2006, no pet.). By relying on the continuing- violation doctrine, a claimant may avoid a limitations bar if she “can show a series of related acts, one of which falls within the limitations period[.]” Huckabay v. Moore, 142 F.3d 233, 238−39 (5th Cir. 1998); see also Davis, 226 S.W.3d at 493 (explaining that, “[u]nder the continuing violation theory, a plaintiff must show an organized scheme leading to and including a present violation so that it is the cumulative effect of discriminatory practice, rather than any discrete occurrence, that gives rise to the cause of action.”). But the District does not argue that Williams asserted her hostile work environment and constructive discharge claims too late; rather, the District argues that Williams did not assert those claims at all. Because there is no issue on appeal regarding whether any of Williams’s claims are time barred, we do not reach the applicability of the continuing-violation doctrine. 8 “[C]harges that are filed by Texas employees with the EEOC are contemporaneously filed with the TWC.” Prairie View A & M Univ. v. Chatha, 381 S.W.3d 500, 504 n.4 (Tex. 2012) (citing 42 U.S.C. § 2000e−5e(d)). 21 investigating agency an opportunity to resolve the dispute. Lopez v. Tex. State
Univ., 368 S.W.3d 695, 700–01 (Tex. App.—Austin 2012, pet. denied) (citing
Pacheco v. Mineta, 448 F.3d 783, 789 (5th Cir. 2006); Manning v. Chevron Chem.
Co., LLC, 332 F.3d 874, 878−79 (5th Cir. 2003)).
The factual statement in the administrative charge is crucial because
TCHRA litigation is limited in scope to claims stated in the charge and factually
related claims that could reasonably be expected to grow out of the investigation of
the stated claims. See Lopez, 368 S.W.3d at 701; Santi, 312 S.W.3d at 805; Bartosh
v. Sam Houston State Univ., 259 S.W.3d 317, 321 (Tex. App.―Texarkana 2008,
pet. denied). Because most complaints are made by persons unfamiliar with the
rules of pleadings, courts construe the charge liberally; however, the charge must
contain adequate facts to put the employer on notice of the existence and nature of
the claims. Santi, 312 S.W.3d at 805 (citing 29 C.F.R. § 1601.12(b) (2009) (“a
charge is sufficient when . . . sufficiently precise to identify the parties, and to
describe generally the action or practices complained of”)). Courts will not read the
charge to include facts that were initially omitted. Cnty. of Travis ex rel. Hamilton
v. Manion, No. 03–11–00533–CV, 2012 WL 1839399, at *4 (Tex. App.―Austin
May 17, 2012, no pet.) (mem. op.) (citing Harris v. David McDavid Honda, 213 F.
App’x 258, 261 (5th Cir.2006) (per curiam)).
22 On her original charge form, in the space titled “DISCRIMINATION
BASED ON (Check appropriate box(es)),” Williams checked race and retaliation.
There are no boxes for hostile work environment or constructive discharge. For the
“Date(s) Discrimination Took Place,” Williams listed a seven-month period during
which she worked at Elkins. Williams did not check the box for a “continuing
violation.” Within her description of the “particulars” of her charge, Williams
stated:
I. I was employed by the [District] in February 2006. I had previously worked for the [District] and returned. My position is a teacher in the English Department. [The District] is a public school district that employs more than 15 employees.
II. Beginning in August 2006 and continuing I have been subjected to unfair disciplinary action by Barbara Whittaker, Principal.
III. I had complained about the environment in the English Department and advised Paula Jay, Department Chair, that I believed there was racism in the department. Jay told me that it may be my minority perspective but there was no racism. After this I began to experience the frequent and unfair disciplinary action.
IV. Whittaker came to a department meeting on September 19, 2006. After the meeting I sent her an email and then she had me taken from the classroom to her office. Tim Gloster, Assistant Principal, brought me to the office and remained during the meeting. As [a] result of the meeting I was removed from the campus and placed on leave of absence.
V. I believe I have been discriminated against because of my race, Black, and retaliated against because of my complaints of racism, in violation of Title VII of the Civil Rights Act of 1964, as amended. 23 Williams amended her charge approximately three months later by
submitting a separate type-written page containing these allegations:
. . . On October 17, 2006, my doctor required me to take a stress leave due to the harassment and mental anguish imposed on me by Principal Barbara Whittaker and the Assistant Principal, Tim Gloster. On November 3, 2006, I was informed that my services were no longer needed at Elkins. No reason was provided for this action. I attempted to discuss this issue with Mr. Alfred R. Ray, Area Superintendent, but to no avail.
I was also not allowed to retrieve my personal belongings. I was told that my belongings would be mailed to me. However, the school failed to return many of my valuables back to me.
In December 2006, I anticipated being released to work from my medical leave of absence . . . . However, Ms. Connie Jones, Human Resources Director, informed me that I had to reapply for a position. This was against [the District’s] policies and procedures. Nonetheless, I reapplied and was assigned to work at the M.R. Wood Alternative School’s District Expulsion Program (DEP). Ms. Lydia Wright, Associate Principal, informed me that she would offer me a position as an English III Teacher at the Thurgood Marshall High School. However, Fort Bend ISD denied me this opportunity with no reason given.
Due to my discriminatory assignment and the hostile working environment at M.R. Wood Alternative School, my doctor had to put me out on another [leave of absence], effective January 15, 2007.
I believe that I have been retaliated against for participating in a protected activity, in violation of Title VII of the Civil Rights Act of 1964, as amended.
A. Hostile work environment
William’s petition alleges “campaign of harassment based on her race” and
conduct by school and District administrators that “created an intimidating, hostile
24 or offensive work environment.” According to the District, Williams’s charge and
amended charge only state claims for discrimination and retaliation and do not
contain any factual allegations of hostile work environment based on race.
The TCHRA allows suits against a governmental unit only when it
discriminates because of a protected status. TEX. LAB. CODE ANN. § 21.051; see
Tex. Dep’t of Criminal Justice v. Cooke, 149 S.W.3d 700, 704 (Tex. App.—Austin
2004, no pet.) (“The Act here allows suit against a governmental unit only when it
discriminates because of race.”) (emphasis in original). Similarly, a claim of
hostile work environment entails harassment based on the plaintiff’s protected
status. Twigland Fashions, Ltd. v. Miller, 335 S.W.3d 206, 218 (Tex. App.—
Austin 2010, no pet.); Bartosh, 259 S.W.3d at 324. Although Williams used the
term “hostile work environment” once in her amended charge, neither the charge
nor amended charge contains any suggestion that the “hostile” conditions she
suffered were based on race. Rather, the charge and amended charge detail a series
of discrete acts allegedly taken in retaliation for Williams’s original outcry of
discrimination in the Elkins English Department. Discrete acts forming the basis
for discrimination or retaliation claims should be kept conceptually distinct from
hostile work environment claims. Olivarez v. Univ. of Tex. at Austin, No. 03-05-
00781-CV, 2009 WL 1423929, at *4 (Tex. App.—Austin May 21, 2009, no pet.)
(mem. op.) (citing Brierly v. Deer Park Union Free Sch. Dist., 359 F. Supp. 2d
25 275, 293 (E.D.N.Y. 2005); Parker v. State of Del. Dep’t of Pub. Safety, 11 F. Supp.
2d 467, 475 (D. Del. 1998)). Consequently, we conclude that Williams did not
state facts that give rise to a claim of severe or pervasive harassment based on her
status as a member of a protected class or facts that could reasonably be expected
to lead the EEOC to investigate a hostile work environment claim. We therefore
hold that Williams failed to exhaust her administrative remedy with respect to her
hostile work environment claim. As a result, the trial court erred in denying the
District’s plea to the jurisdiction because the trial court lacked jurisdiction over
Williams’s hostile work environment claim.
B. Constructive discharge
Williams’s petition also includes a separately stated claim against the
District for constructive discharge. Constructive discharge occurs when an
employer makes conditions so intolerable that an employee reasonably feels
compelled to resign. See Baylor Univ. v. Coley, 221 S.W.3d 599, 605 (Tex. 2007)
(citing Penn. State Police v. Suders, 542 U.S. 129, 141, 124 S. Ct. 2342, 2351
(2004), for its definition of “constructive discharge” as “an employee’s reasonable
decision to resign because of unendurable working conditions”). Williams’s charge
does not include any allegation that her working conditions were intolerable.
Moreover, the constructive-discharge facts alleged by Williams in her petition
relate exclusively to her employment at Willowridge. She asserts that the working
26 conditions at Willowridge became intolerable when school administrators placed
her on the staff-reduction list before other less qualified teachers with fewer years’
experience and subjected her unwarranted scrutiny and criticism. But the facts
stated in Williams’s charge and amended charge concern only her employment at
Elkins and M.R. Wood. We conclude that the charge contains no allegations that
would serve to put the District on notice that Williams was asserting a claim for
constructive discharge arising from her employment at Willowridge. We further
conclude that the factual allegations in the charge and amended charge could not
reasonably be expected to lead the agency to investigate a constructive discharge
claim; in fact, the agency’s investigation had concluded and Williams had received
her right to sue letter before the conduct giving rise to her resignation occurred.
Consequently, we conclude that Williams failed to exhaust her
administrative remedy regarding her constructive discharge claim. As a result, the
trial court lacked jurisdiction over Williams’s constructive discharge claim, and we
hold that the trial court erred in denying the District’s jurisdictional plea.
Conclusion
Having concluded that the trial court lacks subject-matter jurisdiction over
Williams’s claims, we reverse and render judgment dismissing the case.
27 Harvey Brown Justice
Panel consists of Justices Jennings, Brown, and Huddle.