Marie-Alda Gilles-Gonzalez, Ph.D v. University of Texas Southwestern Medical Center

Opinion

Affirmed and Opinion Filed July 22, 2016

S In The Court of Appeals Fifth District of Texas at Dallas No. 05-16-00078-CV

MARIE-ALDA GILLES-GONZALEZ, PH.D, Appellant V. UNIVERSITY OF TEXAS SOUTHWESTERN MEDICAL CENTER, Appellee

On Appeal from the 162nd Judicial District Court Dallas County, Texas Trial Court Cause No. DC-14-09517

MEMORANDUM OPINION Before Justices Myers, Whitehill, and Schenck Opinion by Justice Schenck Appellant Marie-Alda Gilles-Gonzalez, Ph.D filed suit against appellee University of

Texas Southwestern Medical Center (“UTSWMC”) for employment discrimination. The trial

court granted UTSWMC’s amended plea to the jurisdiction in part, dismissing Gilles-Gonzalez’s

claims. Because we conclude (1) we have jurisdiction over the appeal, and (2) Gilles-Gonzalez

filed her complaint with the Texas Workforce Commission more than 180 days after the date the

alleged unlawful employment practice occurred, we affirm the trial court’s judgment. See TEX.

LAB. CODE ANN. § 21.202 (West 2015) (statute of limitations). BACKGROUND

Gilles-Gonzalez has been employed by UTSWMC since 2002 as a professor of

biochemistry. She is a tenured Associate Professor. In this lawsuit, she variously contends that

because she is female, black, of Haitian origin, and a spouse in a mixed-race marriage,

UTSWMC reassigned her laboratory space and transferred equipment previously dedicated to

her research.

Gilles-Gonzalez filed a charge of discrimination with the Texas Workforce Commission

(“TWC”) on November 15, 2013. In her charge she alleged that on or about January 22, 2013,

UTSWMC notified her that the laboratory space assigned to her for her research was to be

reassigned. Equipment dedicated to her research would be subject to transfer to other

laboratories or departments, and she was to remove her personal belongings from the space. Her

laboratory was disassembled and her equipment was offered to other researchers. She alleged

that UTSWMC’s actions were made on the basis of her gender, race, national origin, and mixed-

race marriage. In the box entitled “Date(s) discrimination took place, Earliest, Latest” on the

TWC charge form, Gilles-Gonzalez answered “January 22, 2013—ongoing.”

The TWC issued a dismissal and notice of right to file a civil action on June 30, 2014,

and Gilles-Gonzalez filed this suit on August 28, 2014, alleging violations of both the Texas

Labor Code and the Texas Constitution. UTSWMC filed a plea to the jurisdiction, alleging

among other arguments that Gilles-Gonzalez failed to exhaust her administrative remedies prior

to filing the lawsuit. UTSWMC pleaded that Gilles-Gonzalez’s charge of discrimination alleged

January 22, 2013, as the date on which the discriminatory action occurred, but Gilles-Gonzalez

did not file the charge until November 15, 2013, more than 180 days later and accordingly after

the applicable statute of limitations had run.

–2– Gilles-Gonzalez responded that UTSWMC’s actions occurred over the course of several

months and constituted a continuing violation, so that her charge of discrimination was timely.

She argued that relevant events took place within the 180-day period before she filed her charge.

In her affidavit accompanying her response, Gilles-Gonzalez did not make any reference to the

January 22, 2013 date alleged in her charge. Instead, she testified that she learned of

UTSWMC’s discriminatory actions in March, 2013, when students and colleagues began coming

to her laboratory to view her equipment. She stated that before this time she had not had any

communication with Dr. Steven McKnight, the chair of the department of biochemistry,

regarding any decision to disassemble her laboratory and reassign the space to other faculty.

Gilles-Gonzalez also testified that between March and May, 2013, she was led to believe

that her laboratory equipment would be reassembled in a different space. On May 3, 2013,

McKnight offered to restore some of her equipment, and on June 4, 2013, some of her equipment

and supplies were returned to her for her use. In a letter dated October 15, 2013, Gilles-

Gonzalez demanded that UTSWMC “restore my lab to a fully functional state without delay.”

The letter began, “On Thursday, March 28, 2013 between 2:30–3:30 p.m., there was a free-for-

all in my laboratory during which the faculty, mostly from Biochemistry, were invited by Ms.

Angela Houston, on behalf of Mr. McKnight, to remove all my equipment, supplies, and a wall

of shelves full of chemicals to their labs.” The letter continued, “Although I was told that my lab

was being relocated to make room for individuals from the Infectious Disease Department, at

least half of the space remains unused and in a shamble.” Although “most of the larger, tagged,

and still-intact equipment [was] recovered in May,” it was “crammed into a room of 400 square

feet” and “is not functional at all.” The letter detailed the specific equipment and supplies

Gilles-Gonzalez needed for her work, and stated that the dismantlement of her laboratory and the

–3– loss of eight months of work was “causing great damage to my well-respected 35-year career.”

UTSWMC did not respond to the letter.

Although not asserted as a basis for her current claim of discrimination, Gilles-Gonzalez

detailed in her affidavit other acts of alleged discrimination leading up to the reassignment of her

lab. In 2010, her base salary was lowered. In 2011, McKnight gave her a satisfactory faculty

review but initially ignored grants she obtained, and her pay was again reduced. In 2012, Gilles-

Gonzalez’s husband’s position in UTSWMC’s biochemistry department was eliminated due to a

reduction in force. McKnight gave Gilles-Gonzalez an unsatisfactory evaluation in March 2012,

without any input from her. And in August 2012, she was notified that her supplemental salary

for the 2013–14 term would be zero. She also testified that “[s]ince I was hired in 2002, the

[UTSWMC] department of biochemistry has employed no other black females, no other

Haitians, no black males, and currently has only five females out of thirty full and part-time

employees.”

After the parties filed amendments to the plea to the jurisdiction and response and Gilles-

Gonzalez amended her petition, the trial court granted UTSWMC’s plea in part, dismissing

Gilles-Gonzalez’s claims under the Texas Labor Code. This appeal followed.

APPLICABLE LAW AND STANDARD OF REVIEW

A plea to the jurisdiction is a dilatory plea; its purpose is to defeat a cause of action

without regard to whether the claims asserted have merit. Ollie v. Plano Indep. Sch. Dist., 383

S.W.3d 783, 789 (Tex. App.—Dallas 2012, pet. denied). A plea challenges the trial court’s

authority to decide a case. Heckman v. Williamson Cnty., 369 S.W.3d 137, 149 (Tex. 2012).

The existence of subject-matter jurisdiction is a question of law; thus, we review de novo the

trial court’s ruling on a plea to the jurisdiction. Tex. Dep’t of Parks & Wildlife v. Miranda, 133

S.W.3d 217, 226, 228 (Tex. 2004).

–4– The plaintiff has the burden to affirmatively demonstrate the trial court has subject matter

jurisdiction. Heckman, 369 S.W.3d at 150; Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852

S.W.2d 440, 446 (Tex. 1993). While we begin our analysis with the live pleadings, we may also

consider evidence relevant to the jurisdictional inquiry and must consider such evidence when it

is necessary to resolve the jurisdictional issue. Heckman, 369 S.W.3d at 150. “We construe the

plaintiff’s pleadings liberally, taking all factual assertions as true, and look to the plaintiff’s

intent.” Id. We must grant the plea to the jurisdiction if the plaintiff’s pleadings affirmatively

negate the existence of jurisdiction or if the defendant presents undisputed evidence that negates

the existence of the court’s jurisdiction. Id. “If a claim is not within a court’s jurisdiction, and

the impediment to jurisdiction cannot be removed, then it must be dismissed.” Am. Motorists

Ins. Co. v. Fodge, 63 S.W.3d 801, 805 (Tex. 2001).

A complaint alleging unlawful employment practices must be filed with the TWC “not

later than the 180th day after the date the alleged unlawful practice occurred.” TEX. LAB. CODE

ANN. § 21.202. The exhaustion of administrative remedies is a jurisdictional prerequisite to

filing suit for unlawful employment practices. Specialty Retailers, Inc. v. DeMoranville, 933

S.W.2d 490, 492 (Tex. 1996) (per curiam).

A plaintiff may not recover for “discrete acts of discrimination or retaliation” that occur

outside the limitations period. Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 105 (2002).

The limitations period begins when the employee is informed of the allegedly discriminatory

employment decision, not when that decision comes to fruition. Specialty Retailers, Inc., 933

S.W.2d at 493; see also Prairie View A&M Univ. v. Chatha, 381 S.W.3d 500, 507 (Tex. 2012)

(Specialty Retailers, Inc. is “controlling authority for interpreting when an unlawful employment

practice occurs”).

–5– In contrast to claims alleging “discrete acts” such as termination, failure to promote,

denial of transfer, or refusing to hire, see Morgan, 536 U.S. at 114, a plaintiff may also allege a

“continuing violation,” that is, “unlawful discrimination that ‘manifests itself over time, rather

than [as] a series of discrete acts.’” See Univ. of Tex. v. Poindexter, 306 S.W.3d 798, 808 (Tex.

App.—Austin 2009, no pet.) (quoting Wal-Mart Stores, Inc. v. Davis, 979 S.W.2d 30, 41–42

(Tex. App.—Austin 1998, pet. denied)). When “continuing violation” discrimination occurs,

“the 180-day filing clock does not begin to run until one of the involved discriminatory events

‘should, in fairness and logic, have alerted the average layperson to act to protect his or her

rights.’” Id. (quoting Davis, 979 S.W.2d at 42). “When a charge is timely filed as to one act of

discrimination, the doctrine of continuing violation expands the scope of those discriminatory

events that are actionable, as long as one of the events occurs within the 180-day period.” Davis,

979 S.W.2d at 41 (citing Glass v. Petro-Tex Chem. Corp., 757 F.2d 1554, 1560–61 (5th Cir.

1985)).1

DISCUSSION

A. Sufficiency of UTSMC’s pleadings

In her first issue Gilles-Gonzalez contends the trial court erred by granting the plea to the

jurisdiction “based on a condition precedent that Appellee failed to specifically deny.” Citing

rule 54 of the Texas Rules of Civil Procedure, Gilles-Gonzalez argues (1) she pleaded she has

met all conditions precedent and exhausted all administrative remedies; and (2) in its answer,

UTSWMC did not specifically deny any condition precedent she failed to meet. See TEX. R.

CIV. P. 54 (Conditions Precedent). She therefore concludes she was not required to prove she

exhausted her administrative remedies in order to recover on her claim, and “the trial court erred

1 Because one purpose of Chapter 21 of the Labor Code is “to bring Texas law in line with federal laws addressing discrimination, federal case law may be cited as authority.” Specialty Retailers, Inc., 933 S.W.2d at 492; see also Waffle House, Inc. v. Williams, 313 S.W.3d 796, 798 n.1, 804 n.25 (Tex. 2010). As we have explained, Gilles-Gonzalez alleges claims that arise out of Chapter 21.

–6– in granting a plea to the jurisdiction based on Appellant’s alleged failure to satisfy a condition

precedent before filing suit.”

The question before the trial court and before this Court, however, is whether the trial

court lacks subject matter jurisdiction over Gilles-Gonzalez’s claims. See, e.g., Harris Cnty. v.

Sykes, 136 S.W.3d 635, 638 (Tex. 2004) (plea to jurisdiction is dilatory plea that seeks dismissal

of case for lack of subject matter jurisdiction). If Gilles-Gonzalez did not exhaust her

administrative remedies, then the trial court did not have jurisdiction over her employment

discrimination and retaliation claims, and it properly granted UTSWMC’s plea to the jurisdiction

with respect to those claims. See Santi v. Univ. of Tex. Health Sci. Ctr. at Houston, 312 S.W.3d

800, 804 (Tex. App.—Houston [1st Dist.] 2009, no pet.) (failure to timely file administrative

complaint deprives Texas trial courts of subject matter jurisdiction).

We may consider UTSWMC’s claim of immunity regardless of whether the trial court

ruled on the question of its jurisdiction and regardless of the specificity of UTSWMC’s denial of

conditions precedent. See Rusk State Hosp. v. Black, 392 S.W.3d 88, 95 (Tex. 2012) (immunity

from suit is issue of subject matter jurisdiction that may be raised for first time on interlocutory

appeal of unrelated ruling); Ollie, 383 S.W.3d at 789 (rejecting argument that appellees waived

their claim to immunity by filing general denial). And as in Ollie, UTSWMC pleaded its

governmental immunity as an affirmative defense, as well as pleading that Gilles-Gonzalez

failed to exhaust her administrative remedies. See id. The trial court properly considered the

question of its jurisdiction over Gilles-Gonzalez’s claims, and we may consider the same

question in this appeal. See Rusk State Hosp., 392 S.W.2d at 95. We decide Gilles-Gonzalez’s

first issue against her.

–7– B. Timeliness of Gilles-Gonzalez’s administrative complaint

In her second issue Gilles-Gonzalez contends that because she “timely filed an

administrative complaint under a continuing violation theory,” the trial court should not have

granted UTSWMC’s plea to the jurisdiction. Gilles-Gonzalez argues that UTSWMC’s actions

concerning her lab and lab equipment “were part of a series of related and equivocal actions

initiated and accomplished by [UTSWMC] over the course of a several month span, some of

which occurred in the 180 day period prior to the filing of Appellant’s charge.” None of

UTSWMC’s actions, she argues, were “discrete,” such as termination, failure to promote, denial

of transfer, or refusal to hire. See Morgan, 536 U.S. at 114. Instead, she argues, UTSWMC’s

actions were “more analogous to hostile environment cases,” involving repeated conduct that

does not occur on any particular day and may not be actionable on its own. See id. at 115.

Gilles-Gonzalez concedes she is not asserting a claim for a hostile work environment, but argues

that we should apply the “continuing violation” analysis nonetheless because all of the relevant

factors for a continuing violation are met.

To determine if Gilles-Gonzalez’s charge of discrimination was timely, we first consider

whether it was filed “not later than the 180th day after the date the unlawful employment practice

occurred.” TEX. LAB. CODE ANN. § 21.202(a). In Morgan, the Court explained that “[a] discrete

retaliatory or discriminatory act ‘occurred’ on the day that it ‘happened.’” Id. at 110. A party

must file a charge within 180 days of the date of the act or lose the ability to recover for it. See

id. “Discrete discriminatory acts are not actionable if time barred, even when they are related to

acts alleged in timely filed charges.” Id. at 113. The limitations period begins to run on the date

the discriminatory act occurred, not on the date “the victim first perceives that a discriminatory

motive caused the act.” Merrill v. S. Methodist Univ., 806 F.2d 600, 605 (5th Cir. 1986) (citing

Del. State College v. Ricks, 449 U.S. 250, 258 (1980)); see also Specialty Retailers, Inc., 933

–8– S.W.2d at 493 (limitations period begins when employee is informed of allegedly discriminatory

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

Gilles-Gonzalez contends that neither the January letter nor her required move and loss of

equipment in March were “discrete” acts that in logic and fairness would have alerted the

average layperson of the need to seek a lawful remedy. She argues that under the plain meaning

of “discrete,” the acts “did not have the same degree of permanence as those such as firing,” and

“were not independent of one another.” She also argues that the acts were not “complete on a

given day,” citing Ortega v. Housing Authority of the City of Brownsville, 572 F. Supp. 2d 829,

836 (S.D. Tex. 2008).2 And citing Abrams v. Baylor College of Medicine, 805 F.2d 528, 533

(5th Cir. 1986), she argues that there is a continuing violation where “the employer’s ambiguous

acts serve to obscure the existence of an unlawful policy and fail to alert the average lay person

to act to protect his rights,” and where “[plaintiffs] ha[ve] a reasonable basis for assuming” that

the employer’s decision is “not a final one.”

But courts have not limited “discrete” acts to the four listed in Morgan. In Cooper-Day

v. RME Petroleum Corp., 121 S.W.3d 78, 86 (Tex. App.—Fort Worth 2003, pet. denied), for

example, the court concluded that failure to provide the plaintiff with an assistant and assignment

of an extra region to her were “discrete acts.” See also Ptomey v. Tex. Tech Univ., 277 S.W.3d

487, 494 (Tex. App.—Amarillo 2009, pet. denied) (identifying “demotion, removal from office

facility, and reassignment of subordinate staff” as “discrete employment actions”); Santi, 312

S.W.3d at 806 (decision not to renew plaintiff’s contract and denial of right to license derivative

materials were discrete acts). And we disagree that UTSWMC’s acts were ambiguous or not

complete on a given day. The January letter explicitly informed Gilles-Gonzalez that (1) “the

2 In Ortega, the court applied the three-factor test we discuss below, and concluded the plaintiff had not established that the continuing violations doctrine applied because “each event was sufficiently permanent to trigger a reasonable person to act to protect his rights.” Ortega, 572 F. Supp.2d at 836.

–9– Dean’s Office has reassigned the office and laboratory space . . . occupied by you”; (2) “[t]hese

rooms must be cleared of all personal belongings on or before March 18, 2013”; (3) lab

equipment may be designated for transfer, placed in storage, or left in place and transferred for

use; and (4) a specific new office in a different building was designated for her use. In her

affidavit, Gilles-Gonzalez stated that “[i]n early March, 2013,” after students and other faculty

had come to her laboratory to view her equipment, she “received a notice that the research

laboratory that was assigned to me for my exclusive use was to be disassembled, and the space

reassigned to other faculty. Prior to this notification, I had not had any communication with Dr.

McKnight regarding this decision.” On March 12, 2013, Gilles-Gonzalez “requested that my

research equipment and supplies be stored for my use in the future,” and “complained that the

office space to which I was reassigned was not vacant.” And on March 28, 2013, the “free-for-

all” in Gilles-Gonzalez’s lab occurred in which other faculty members removed “all my

equipment, supplies, and a wall of shelves full of chemicals to their own labs.”

The record demonstrates that UTSWMC’s decision was made on or before January 22,

2013, brought to Gilles-Gonzalez’s attention no later than March 12, 2013, and acted upon no

later than March 28, 2013, according to Gilles-Gonzalez’s own charge and affidavit. As Gilles-

Gonzalez noted, these acts and communications all followed in the wake of other unambiguous

acts affecting her and her husband between 2010 and 2012. In all events, there was nothing

ambiguous about UTSWMC’s decision. UTSWMC acted upon and carried out its decision.

Gilles-Gonzalez was aware of the decision and UTSWMC’s actions were a direct result of it.

The reassignment of Gilles-Gonzalez’s lab and the transfer of her equipment was a discrete act

that “happened” on a specific date. See Morgan, 536 U.S. at 110; Ricks, 449 U.S. at 258 (“In

sum, the only alleged discrimination occurred—and the filing limitations periods therefore

commenced—at the time the tenure decision was made and communicated to Ricks. That is so

–10– even though one of the effects of the denial of tenure—the eventual loss of a teaching position—

did not occur until later.”).

But Gilles-Gonzalez contends that because UTSWMC took subsequent actions in an

attempt to mitigate the effect of its decision, there was no discrete act. She points to evidence

that (1) between March and May, she was led to believe that her lab equipment would be

reassembled in a different space; (2) in March, McKnight cleared some of his own lab space for

her use; (3) on May 3, 2013, McKnight offered to restore some of her equipment; and (4) on

June 4, 2013, some of her equipment was returned for her use. On a timeline in her appellate

brief, she also cites dates of May 21, 2013, when UTSWMC began work on collecting specific

equipment to be returned to her, and October 15, 2013, when she requested return of her

equipment to allow research under a grant she had obtained but UTSWMC did not respond. She

contends these subsequent actions established a continuing violation, so that her charge of

discrimination was timely filed.3

There are three factors courts consider to determine whether alleged discriminatory acts

are related closely enough to be continuing violations or whether they are “merely discrete,

isolated, and completed acts which must be regarded as individual violations.” Berry v. Bd. of

Supervisors of La. State Univ., 715 F.2d 971, 981 (5th Cir. 1983). The court in Berry identified

these factors as (1) subject matter, (2) frequency, and (3) degree of permanence. Id. The court

emphasized, however, that “[t]his inquiry, of necessity, turns on the facts and context of each

particular case.” Id. The court discussed the three factors “but by no means consider[ed them]

3 Gilles-Gonzalez does not claim that the actions of UTSWMC were so plainly misleading as to amount to an estoppel to the later assertion of a limitations or jurisdictional bar. See, e.g., Fiengo v. Gen. Motors Corp., 225 S.W.3d 858, 861–62 (Tex. App.—Dallas 2007, no pet.) (equitable estoppel is defense to limitations if plaintiff proves false representation or concealment of material fact, made with knowledge of true facts, to party without knowledge or means of knowledge of true facts, with intention it be acted upon, and detrimental reliance). We accordingly do not consider the issue.

–11– to be exhaustive.” Id. And as the court noted, “[c]ase law on the subject of continuing violations

has been aptly described as ‘inconsistent and confusing.’” Id. at 979 n.11 (citations omitted).

Gilles-Gonzalez contends that each of these factors is met. As to the first factor, the

Berry court considered whether “the alleged acts involve the same type of discrimination,

tending to connect them in a continuing violation.” Id. Gilles-Gonzalez argues that UTSWMC’s

actions do involve “the same type of discrimination, as they are limited to those reassigning,

removing, and incompletely restoring Appellant’s lab and lab equipment.” While we agree that

the specified actions pertained to Gilles-Gonzalez’s lab and equipment, we question whether

UTSWMC’s attempts to mitigate the effect of its decision by returning equipment and clearing

other lab space are “discriminatory” acts at all.

Next, the Berry test for “frequency” is whether the “alleged acts [are] recurring (e.g., a

biweekly paycheck) or are more in the nature of an isolated work assignment or employment

decision.” Berry, 715 F.2d at 981. Again, Gilles-Gonzalez relies on the return of some of her

equipment and the promise of other lab space as recurring discriminatory acts. As we have

discussed, however, UTSWMC made a single decision in January—that Gilles-Gonzalez’s lab

space was to be reassigned. As Gilles-Gonzalez explained in her charge of discrimination, the

disassembly of her laboratory “effectively prevented Complainant from performing important

research for which she was hired to do, and impedes her ability to teach.” It was UTSWMC’s

initial decision that affected Gilles-Gonzalez’s ability to perform her job, not subsequent

attempts to mitigate the effect of the decision or subsequent failures to reverse the decision.

Last, the Berry test for “degree of permanence” is whether the act “should trigger an

employee’s awareness of and duty to assert his or her rights, or which should indicate to the

employee that the continued existence of the adverse consequences of the act is to be expected

without being dependent on a continuing intent to discriminate.” Berry, 715 F.2d at 981. Gilles-

–12– Gonzalez argues that it was reasonable to believe “her supervisor’s own assurances” that the

decision made in January was not permanent, in light of the return of some of her equipment and

the clearing of his own lab space for her.

As we have discussed, Gilles-Gonzalez relies on Abrams in support of this argument. See

Abrams, 805 F.2d at 533 (continuing violation existed where “employer’s ambiguous acts serve

to obscure the existence of an unlawful policy and fail to alert ‘the average lay person to act to

protect his rights’”) (quoting Glass, 757 F.2d at 1561). In Abrams, Jewish physicians

complained that Baylor unlawfully excluded them from a lucrative rotation program in a hospital

in Saudi Arabia because of their religion. Id. at 530. The court held that although the doctors

filed their complaints more than 180 days after they were told that “visa problems” precluded

their inclusion in the program, the trial court could have concluded that neither doctor had

“enough information by which a ‘reasonably prudent person similarly situated’ could have

realized that he was the victim of illegal discrimination.” Id. at 534 (citing Glass, 757 F.2d at

1560). The court explained that that “a reasonably prudent employee will not necessarily

conclude that his employer is an illegal discriminator on the basis of one conversation and one at

least arguably nondiscriminatory act.” Id. The doctors were allowed to sue because their

rejection was linked to their final exclusion from the program within 180 days of their complaint.

Id.

In contrast, as Gilles-Gonzalez herself alleges, the 2013 reassignment of her lab followed

at least two years of actions she describes as discriminatory, including unjustified negative

evaluations, salary reductions, and her husband’s termination. As she argues in her brief,

discriminatory acts not made the basis for a timely charge “may constitute relevant background

evidence in a proceeding in which the status of a current practice is at issue.” See United Air

Lines, Inc. v. Evans, 431 U.S. 553, 558 (1977). She testified that since her hiring in 2002, the

–13– department of biochemistry had not employed any other black females, Haitians, or black males,

and employed only a handful of females in a staff of thirty. Given Gilles-Gonzalez’s knowledge

of this history, we conclude that a reasonably prudent person similarly situated could have

realized that she was the victim of illegal discrimination when she was given notice that her lab

and equipment were to be reassigned. See Abrams, 805 F.2d at 534.

Finally, the Abrams court also made clear that “to establish a continuing violation, a

plaintiff must show some application of the illegal policy to him (or to his class) within the 180

days preceding the filing of his complaint.” Id. at 533. Other courts have explained that “a

plaintiff must show an organized scheme leading to and including a present violation, so that it is

the cumulative effect of the discriminatory practice, instead of any discrete occurrence, that gives

rise to the cause of action.” See Cooper-Day, 121 S.W.3d at 86 (quoting Huckabay v. Moore,

142 F.3d 233, 238–39 (5th Cir. 1998)). Gilles-Gonzalez does not allege a “present violation”

that occurred in the 180 days preceding the filing of her complaint on November 15, 2013. The

events between May and October 2013 detailed above are effects of UTSWMC’s decision and

actions in January and March, not “present violations” that are the culmination of an organized

scheme. See Ricks, 449 U.S. at 258 (discrimination occurred when tenure decision was made

and communicated, even though effects of denial of tenure did not occur until later).

We conclude that UTSWMC’s decision to reassign Gilles-Gonzalez’s laboratory space

and equipment was a “discrete” act that occurred more than 180 days prior to the date she filed

her charge of discrimination. Because her charge was not filed by “the 180th day after the date

the alleged unlawful employment practice occurred,” Gilles-Gonzalez failed to exhaust her

administrative remedies, and the trial court had no jurisdiction of her claim. See Specialty

Retailers, Inc., 933 S.W.2d at 492. The trial court did not err by granting UTSWMC’s plea to

–14– the jurisdiction on Gilles-Gonzalez’s claims for violations of the Texas Labor Code. We decide

Gilles-Gonzalez’s second issue against her.

CONCLUSION

We affirm the trial court’s judgment.

/David J. Schenck/ DAVID J. SCHENCK JUSTICE

160078F.P05

–15– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT

MARIE-ALDA GILLES-GONZALEZ, On Appeal from the 162nd Judicial District PH.D, Appellant Court, Dallas County, Texas Trial Court Cause No. DC-14-09517. No. 05-16-00078-CV V. Opinion delivered by Justice Schenck; Justices Myers and Whitehill participating. UNIVERSITY OF TEXAS SOUTHWESTERN MEDICAL CENTER, Appellee

In accordance with this Court’s opinion of this date, the judgment of the trial court is AFFIRMED.

It is ORDERED that appellee University of Texas Southwestern Medical Center recover its costs of this appeal from appellant Marie-Alda Gilles-Gonzalez, Ph.D.

Judgment entered July 22, 2016.

–16–