MD Anderson Cancer Center v. Bing Wang, M.D.

• Court: Court of Appeals of Texas
• Decided: June 6, 2024
• Docket: 01-23-00911-CV
• Status: Published

Opinion

Opinion issued June 6, 2024

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-23-00911-CV ——————————— M.D. ANDERSON CANCER CENTER, Appellant V. BING WANG, M.D., Appellee

On Appeal from the 165th District Court Harris County, Texas Trial Court Case No. 2022-31980

MEMORANDUM OPINION

This accelerated interlocutory appeal arises out of an employment-

discrimination lawsuit filed by Bing Wang, M.D. against his former employer, M.D.

Anderson Cancer Center. M.D. Anderson filed a plea to the jurisdiction, seeking dismissal on the basis that Wang did not timely exhaust his administrative remedies.

The trial court denied M.D. Anderson’s jurisdictional plea. M.D. Anderson appeals.

We set aside the trial court’s order and dismiss Wang’s lawsuit.

BACKGROUND

Dr. Wang was a clinical faculty member of the M.D. Anderson Cancer Center

for several years. On February 18, 2020, M.D. Anderson issued a letter to Wang

informing him that it would not renew or extend his faculty appointment beyond the

date of August 31, 2020, citing “ongoing performance and professionalism issues”

as the reason for nonrenewal. The letter explicitly stated it served as Wang’s written

notification of the nonrenewal of his employment. It also advised that he could

appeal the nonrenewal in accordance with M.D. Anderson’s faculty appeal policy.

Wang did appeal. But M.D. Anderson upheld the nonrenewal of his faculty

appointment and informed him of its final decision in an April 29, 2020 letter. The

letter stated that this final decision concluded the internal faculty appeal process.

On September 11, 2020, Wang filed a charge of discrimination with the

United States Equal Employment Opportunity Commission. In it, Wang alleged that

M.D. Anderson terminated him on the basis of his disabilities and retaliated against

him after he requested a reasonable accommodation regarding these disabilities.

On February 28, 2022, the EEOC issued a notice to Wang advising him of his

right to sue M.D. Anderson within 90 days based on his charge of discrimination.

2 On May 27, 2022, Wang sued M.D. Anderson. In his live pleading, he alleges

that M.D. Anderson’s failure to renew or extend his clinical faculty appointment was

the result of unlawful discrimination based on his disabilities in violation of the

Texas Labor Code. Wang further alleges that M.D. Anderson retaliated against him

after he made a request for reasonable accommodation of these disabilities.

M.D. Anderson filed a plea to the jurisdiction claiming that the doctrine of

sovereign immunity bars Wang’s suit against it. In its plea, M.D. Anderson argued

that Texas law required Wang to exhaust his administrative remedies, including by

filing a charge of discrimination with either the EEOC or the Texas Workforce

Commission within 180 days of the February 18, 2020 letter informing him that

M.D. Anderson would not renew his faculty appointment. M.D. Anderson further

argued that this administrative exhaustion requirement was a jurisdictional

prerequisite to suit. Because Wang did not file his administrative charge of

discrimination until September 11, 2020, which was more than 180 days after he

received the letter, M.D. Anderson argued that Wang’s claim must be dismissed.

Wang responded that the 180-day deadline should be calculated from the date

on which M.D. Anderson made a final decision in his internal faculty appeal on April

29, 2020, rather than from the date of the initial letter informing him that M.D.

Anderson would not renew or extend his clinical faculty appointment. When

3 measured from this later date, Wang reasoned, his administrative charge of

discrimination was timely filed within the 180-day jurisdictional deadline.

The trial court denied M.D. Anderson’s jurisdictional plea without stating the

basis for its ruling. M.D. Anderson appeals from the trial court’s denial of the plea.

DISCUSSION

The issue before us is a narrow one, and the material facts are undisputed.

Texas law requires a person who desires to bring a lawsuit alleging an unlawful

employment practice, like workplace disability discrimination or retaliation, to first

exhaust his administrative remedies by filing a charge of discrimination with the

Texas Workforce Commission or United States Equal Employment Opportunity

Commission within 180 days of the allegedly discriminatory employment decision.

The parties agree that, under the circumstances of this case, the 180-day deadline

began to run at the very latest once Wang received unequivocal notice of his

termination. But they disagree as to what constitutes unequivocal notice. M.D.

Anderson contends that its February 18, 2020 letter informing Wang of the decision

not to renew his faculty appointment provided unequivocal notice of termination. If

M.D. Anderson is correct, then Wang’s administrative charge of discrimination was

not timely filed within the 180-day deadline and his lawsuit is jurisdictionally barred.

In contrast, Wang contends that he did not have unequivocal notice of his

termination until M.D. Anderson notified him of its April 29, 2020 final decision

4 concluding its internal faculty appeal process and upholding the decision not to

renew his faculty appointment. If Wang is correct, then he timely filed his

administrative charge of discrimination, and his suit is not jurisdictionally barred.

Standard of Review

We review de novo a trial court’s ruling on a plea to the jurisdiction premised

on sovereign immunity because whether the trial court has subject-matter

jurisdiction is a question of law. Hoff v. Nueces Cty., 153 S.W.3d 45, 48 (Tex. 2004)

(per curiam). To the extent we must interpret statutory provisions affecting our

jurisdiction, our review remains de novo because the proper interpretation of a

statute is a question of law. Davis v. Morath, 624 S.W.3d 215, 221 (Tex. 2021).

Applicable Law

M.D. Anderson Cancer Center is a part of the University of Texas System.

TEX. EDUC. CODE § 65.02(a)(11). As a part of the University of Texas System, M.D.

Anderson is a division of the state government and has sovereign immunity from

suit to the same extent as the state absent a constitutional or legislative provision

waiving its immunity. Pepper Lawson Horizon Int’l Grp. v. Tex. S. Univ., 669

S.W.3d 205, 210 (Tex. 2023) (per curiam); Deville v. Univ. of Tex. M.D. Anderson

Cancer Ctr., 634 S.W.3d 324, 329 (Tex. App.—Houston [1st Dist.] 2021, no pet.).

The Texas Commission on Human Rights Act, which is codified in the Texas

Labor Code, prohibits unlawful employment practices, including discrimination on

5 the basis of disability and retaliation against an employee for opposing such

discrimination. TEX. LAB. CODE §§ 21.051, 21.055, 21.105. These legislative

provisions operate as a limited waiver of sovereign immunity with respect to state

employers. Prairie View A & M Univ. v. Chatha, 381 S.W.3d 500, 513 (Tex. 2012).

Under the TCHRA, administrative complaints about unlawful employment

practices “must be filed not later than the 180th day after the date the alleged

unlawful employment practice occurred.” TEX. LAB. CODE § 21.202(a).

Noncompliance with this deadline requires dismissal of the administrative

complaint, and the making of a timely administrative complaint is a mandatory

jurisdictional prerequisite to a civil suit alleging unlawful employment practices by

a state employer. See id. §§ 21.202(b), 21.208, 21.252, 21.254, 21.256; TEX. GOV’T

CODE § 311.034; Chatha, 381 S.W.3d at 503–04, 513–14 (holding professor’s suit

for employment discrimination against state university was jurisdictionally barred

due to failure to timely file administrative complaint); Drew v. City of Houston, 679

S.W.3d 779, 784 (Tex. App.—Houston [1st Dist.] 2023, no pet.) (explaining that

exhaustion of administrative remedies in context of employment discrimination

claims requires, among other things, filing of administrative complaint with either

TWC or EEOC by 180-day deadline and that failure to do so operates as

jurisdictional bar to suit).

6 The 180-day deadline begins to run “when the employee is informed of the

allegedly discriminatory employment decision, not when that decision comes to

fruition.” Specialty Retailers v. DeMoranville, 933 S.W.2d 490, 493 (Tex. 1996)

(per curiam); see also Chatha, 381 S.W.3d at 503 (noting that deadline begins to run

“when a discriminatory employment decision is made—not when the effects of that

decision become manifest in later events”). When the discriminatory act is the

unlawful termination of employment in particular, the 180-day deadline runs from

the date when the employer informed the employee that he “would be terminated.”

Specialty Retailers, 933 S.W.2d at 493. In other words, the relevant date for

calculating the deadline is when the employer notifies the employee of its intent to

terminate him, not necessarily the date on which his employment actually ends. See

id. at 492–93 (holding that 180-day deadline ran from date that company told

employee she would be terminated if her disability leave lasted more than year);

Davis v. Autonation USA Corp., 226 S.W.3d 487, 492 (Tex. App.—Houston [1st

Dist.] 2006, no pet.) (holding that 180-day deadline began to run by latest when

employer told employee she could transfer to another department or be fired).

A notice of termination generally must be unequivocal to trigger the 180-day

deadline, unless a reasonable employee would otherwise understand that his

employment had been terminated under the circumstances. See Johnson & Johnson

Med. v. Sanchez, 924 S.W.2d 925, 928 (Tex. 1996) (agreeing that for purposes of

7 wrongful termination claim asserted under Texas Workers’ Compensation Act

limitations begins to run on receipt of unequivocal notice of termination or when

reasonable employee should know her employment is terminated); Myers v. Sam

Houston State Univ., No. 01-04-00667-CV, 2005 WL 1910817, at *2–4 (Tex.

App.—Houston [1st Dist.] Aug. 11, 2005, no pet.) (mem. op.) (indicating

requirement that termination notice be unequivocal applies in employment

discrimination suits under TCHRA); see also Tex. Parks & Wildlife Dep’t v.

Dearing, 150 S.W.3d 452, 459 (Tex. App.—Austin 2004, pet. denied) (applying

Sanchez’s holding in age discrimination class action). But a notice of termination is

not equivocal merely because it is conditional in nature or specifies a future date as

the date of termination. See Reeves v. Houston Lighting & Power Co., 4 S.W.3d 374,

377–78 (Tex. App.—Houston [1st Dist.] 1999, pet. denied) (holding notice stating

employee would be terminated by specific date if he did not obtain leave of absence

or long-term disability by then was unequivocal).

Analysis

Our court answered the question presented in this appeal in a prior

discrimination lawsuit against M.D. Anderson. In that suit, an administrative

assistant alleged sex discrimination and retaliation, and M.D. Anderson moved to

dismiss her suit on the basis that she did not exhaust her administrative remedies by

filing an administrative complaint by the jurisdictional 180-day deadline. Univ. of

8 Tex. – MD Anderson Cancer Ctr. v. Phillips, No. 01-18-00221-CV, 2018 WL

6379503, at *1–3 (Tex. App.—Houston [1st Dist.] Dec. 6, 2018, no pet.) (mem. op.).

An administrator issued the assistant a letter giving notice of M.D. Anderson’s

intent to terminate, and M.D. Anderson contended the 180-day deadline began to

run on that date. Id. at *2–3. But the letter noted the assistant would be allowed to

provide a written response and indicated the termination decision was not yet final.

Id. at *2. A month later, the administrator issued a second letter, communicating that

M.D. Anderson had made a final decision to terminate the assistant, and the assistant

contended the 180-day deadline began to run on that date. Id. at *2–3. The assistant

eventually filed a charge of discrimination with the TWC and EEOC. Id. at *2. But

this administrative complaint met the 180-day deadline only if the assistant was

correct that the date of the final termination decision was controlling. Id. at *3.

Our court held that M.D. Anderson’s first letter providing notice of intent to

terminate the assistant’s employment triggered the 180-day deadline as a matter of

law. Id. at *5–7. We explained that the deadline began to run on the date the assistant

was informed by M.D. Anderson of its intent to terminate her employment, not when

that decision later culminated in termination, based on the Supreme Court’s decision

in Specialty Retailers. Id. at *5–6. There, the Supreme Court held the 180-day

deadline starts “when the employee is informed of the allegedly discriminatory

employment decision, not when that decision comes to fruition.” 933 S.W.2d at 493.

9 Much like Wang in this appeal, the administrative assistant in Phillips posited

that the first letter giving notice of intent to terminate did not control because it was

not unequivocal. 2018 WL 6379503, at *6. The assistant reasoned that the first letter

was not unequivocal because it conditioned her termination on a written response

from her and was not a final decision as to whether she would or would not be

terminated. Id. Our court summarily rejected this position as being inconsistent with

Specialty Retailers. Id. at *6–7.

We are bound to follow our prior decision in Phillips. But even if this was an

issue of first impression, we would decide the issue in the same way as Phillips.

Texas courts have long rejected the idea that a termination notice is equivocal

merely because it is conditional in some way. See Specialty Retailers, 933 S.W.3d

at 492–93 (holding 180-day deadline was triggered no later than when employee was

told she would be fired if her leave lasted more than one year); Davis, 226 S.W.3d

at 492 (holding 180-day deadline was triggered no later than when employee was

told she could transfer or be fired). Thus, M.D. Anderson’s notice of termination

was not equivocal merely because Wang’s termination was subject to internal

appeal. See, e.g., Alamo Cmty. Coll. Dist. v. Ryan, No. 04-17-00196-CV, 2017 WL

4942858, at *2–3 (Tex. App.—San Antonio Nov. 1, 2017, no pet.) (mem. op.)

(holding letter that stated faculty appointment would not be renewed triggered 180-

day deadline, rejecting counterargument that deadline should instead be calculated

10 from date internal appeal was denied, reasoning that decision conveyed in letter was

not tentative, and explaining that appeal can only be had from decision already

made).

Nor is a decision equivocal unless it is final and unappealable. See

EQUIVOCAL, BLACK’S LAW DICTIONARY (11th ed. 2019) (defining “equivocal” in

relevant part as “ambiguous” or “[h]aving more than one meaning or sense”); see,

e.g., Galveston Cty. v. Cooley, No. 14-23-00109-CV, 2024 WL 564191, at *2, *4–5

(Tex. App.—Houston [14th Dist.] Feb. 13, 2024, no pet.) (mem. op.) (holding 180-

day deadline was triggered even though internal appeal process remained ongoing

and decision to terminate therefore had not yet become final at that time). In the

context of termination, a notice of termination is equivocal only if it is ambiguous—

that is, reasonably susceptible to more than one interpretation, such that an employee

might not understand he was being fired. See Sanchez, 924 S.W.2d at 928 (holding

limitations triggered by unequivocal notice of termination or other circumstances

from which reasonable employee should understand she is being terminated). M.D.

Anderson’s first letter to Wang informing him that it would not be renewing or

extending his clinical faculty appointment was not ambiguous in this sense.

Wang relies on County of El Paso v. Flores, for the alternative propositions

that the 180-day deadline either did not begin to run until the internal appeal process

11 concluded or that the appeal process creates a question of fact on the issue. 677

S.W.3d 31 (Tex. App.—El Paso 2023, pet. denied). But Flores is inapposite.

In Flores, a terminated county employee sued the county for disability

discrimination, among other things, in connection with his termination. Id. at 38.

Initially, while the employee was on medical leave, his supervisor notified him that

he was terminated effective immediately. Id. at 40. But when the employee contacted

the county’s human resources representative, the representative told the employee

that he remained employed. Id. at 41. The representative explained to the employee

that the county could not legally terminate him while he was on medical leave. Id.

Afterward, the employee’s supervisor sent a second letter stating that the employee

remained employed by the county for the time being. Id. After the employee returned

from medical leave and the county investigated his discrimination claims, the county

decided his complaints were meritless and his supervisor sent him a third letter

informing him that he was now terminated. Id.

As in this appeal, the timeliness of the employee’s administrative charge of

discrimination and the trial court’s subject-matter jurisdiction over his later

discrimination suit turned on when the 180-day deadline to make an administrative

complaint began to run. The county argued that the deadline began to run when the

employee’s supervisor sent the first letter while he was on medical leave. Id. at 43.

Unsurprisingly, the court of appeals disagreed, noting that the human resources

12 director contradicted the employee’s supervisor as to his employment status. Id. at

43–44. In addition, the court of appeals agreed with the employee that, as a matter

of logic, he could not have been fired on both the date of the first letter and the date

of the third letter, each of which purported to terminate his employment. Id. at 44.

Thus, the court of appeals concluded, either the employee was terminated when he

received the third letter or else there was a fact issue as to when he was terminated.

Id. Either way, the trial court properly denied the county’s jurisdictional plea to the

extent the plea was premised on the TCHRA’s 180-day jurisdictional deadline. Id.

Flores represents an instance in which the employer’s notice of termination

either was not unequivocal, given the supervisor’s multiple contradictory letters, or

else other circumstances—specifically, the human resources representative’s

statements contradicting the supervisor’s initial letter about termination—made it

questionable whether a reasonable employee would know whether or when he was

terminated. Thus, the supervisor’s first letter did not trigger the 180-day deadline to

file an administrative complaint. See Sanchez, 924 S.W.2d at 928 (agreeing that for

purposes of wrongful termination worker’s compensation claim limitations begins

to run on receipt of unequivocal notice of termination or when reasonable employee

should know her employment was terminated). Here, no comparable facts exist.

Consistent with precedent, we hold that the 180-day deadline for Wang to file

a charge of termination-related discrimination with the TWC or EEOC was triggered

13 by M.D. Anderson’s February 18, 2020 letter informing Wang that it would not

renew or extend his faculty appointment. It is undisputed that Wang did not file a

charge of discrimination within 180 days of his receipt of this letter. Thus, Wang did

not timely exhaust his administrative remedies, and the trial court lacks subject-

matter jurisdiction to hear his lawsuit for disability discrimination and retaliation.

We sustain M.D. Anderson’s sole issue.

CONCLUSION

We set aside the trial court’s order denying the jurisdictional plea, and we

render judgment dismissing Wang’s lawsuit for lack of subject-matter jurisdiction.

Gordon Goodman Justice

Panel consists of Justices Goodman, Landau, and Hightower.