University of Texas at Arlington v. James McMerchant

Opinion

ACCEPTED

15-25-00038-CV

FIFTEENTH COURT OF APPEALS AUSTIN, TEXAS 5/28/2025 12:20 PM

No. 15-25-00038-CV CHRISTOPHER A. PRINE CLERK

In the Court of Appeals FILED IN 15th COURT OF APPEALS

AUSTIN, TEXAS

for the Fifteenth Judicial District 5/27/2025 12:20:42 PM

Austin, Texas CHRISTOPHER A. PRINE Clerk

University of Texas at Arlington, Appellant,

v.

James McMerchant,

Appellee.

On Appeal from Cause No. 236-337930-22, in the 236th Judicial District Court of Tarrant County, Texas

APPELLANT’S BRIEF

KEN PAXTON KIMBERLY GDULA Attorney General of Texas Chief for General Litigation Division

BRENT WEBSTER BRIANNA M. KROMINGA First Assistant Attorney General Assistant Attorney General Brianna.Krominga@oag.texas.gov RALPH MOLINA Deputy First Assistant Attorney Office of the Attorney General General General Litigation Division P.O. Box 12548, Capitol Station AUSTIN KINGHORN Austin, Texas 78711-2548 Deputy Attorney General for Civil (214) 290-8884 | FAX: (512) 320-0667 Litigation

Identity of Parties and Counsel

Appellant (Defendant in Trial Court): University of Texas at Arlington

Counsel for Appellant: Brianna M. Krominga Lead Attorney Texas Bar No. 24103252 Assistant Attorney General Office of the Attorney General General Litigation Division P.O. Box 12548 Austin, Texas 78711 (214) 290-8884 – Phone (512) 320-0667 – Fax brianna.krominga@oag.texas.gov

Appellees James McMerchant (Plaintiff in Trial Court):

Counsel for Appellees: Ali Crocker Crocker Russell & Associates 200 W. Oak Street Mansfield, Texas 76063 Ph: (817) 482-6570 Fax: (682) 232-1850 alic@cralawfirm.com

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Table of Contents

Identity of Parties and Counsel ...............................................................................ii Table of Contents ..................................................................................................iii Index of Authorities ............................................................................................... iv Statement of the Case ........................................................................................... vi Statement Regarding Oral Argument .................................................................... vii Issues Presented .................................................................................................. viii Introduction ............................................................................................................ 1 Statement of Facts ..................................................................................................2 I. Factual Background ..................................................................................2 II. Procedural Background .............................................................................4 Summary of the Argument ...................................................................................... 5 Standard of Review ................................................................................................. 5 Argument................................................................................................................ 7 I. The Trial Court Erred in Denying the University’s Plea to the Jurisdiction Because the Trial Court Lacked Jurisdiction Over McMerchant’s Title VII Claim. ................................................................ 7 A. Plaintiff failed to exhaust his administrative remedies. ............................... 7 B. Plaintiff cannot rely on the continuing violation doctrine to resurrect his procedural failures. ............................................................. 11 Prayer ................................................................................................................... 12 Certificate of Service............................................................................................. 13 Certificate of Compliance ..................................................................................... 13

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Index of Authorities

CASES Abbott v. Mexican Am. Legis. Caucus, Tex. House of Representatives, 647 S.W.3d 681 (Tex. 2022) ....................................................................................................... 6

BNSF Ry. Co. v. Phillips, 485 S.W.3d 908 (Tex. 2015) ....................................................................................................... 8

Chambers-Liberty Cnts. Navigation Dist. v. State, 575 S.W.3d 339 (Tex. 2019) ....................................................................................................... 7

Fort Bend Cnty., Tex. v. Davis, 587 U.S. 541 (2019) ................................................................................................................ 1, 8

Heckman v. Williamson County, 369 S.W.3d 137 (Tex. 2012) ....................................................................................................... 6

Jefferson v. Christus St. Joseph Hosp., 374 Fed. Appx. 485 (5th Cir. 2010) ......................................................................................... 10

Klumb v. Houston Mun. Emps. Pension Sys., 458 S.W.3d 1 (Tex. 2015) ........................................................................................................... 5

Lazarides v. Farris, 367 S.W.3d 788 (Tex.App.—Houston [14th Dist.] 2012, no pet.) ............................................ 7

Matzen v. McLane, 659 S.W.3d 381 (Tex. 2021) ...................................................................................................... 6

McClain v. Lufkin Indus., 519 F.3d 264 (5th Cir. 2008) .................................................................................................... 10

Mission Consol. Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629 (Tex. 2012) ....................................................................................................... 6

National Railroad Passenger Corp. v. Morgan, 536 U.S. 101 (2002). .............................. 9, 10, 11, 12

Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217 (Tex. 2004) ....................................................................................................... 6

Thomas v. Long, 207 S.W.3d 334 (Tex. 2006) ................................................................................. 7

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Town of Shady Shores v. Swanson, 590 S.W.3d 544 (Tex. 2019) ....................................................................................................... 6

United Indep. Sch. Dist. v. Mayers, 665 S.W.3d 775 (Tex. App.—San Antonio 2023, no pet.) ..................................................... 1, 8

WalMart Stores, Inc. v. Davis, 979 S.W.2d 30 (Tex. App.—Austin 1998, pet. denied). .......................................................... 12

STATUTES 42 U.S.C. § 2000e-2(a). .................................................................................................................. 7 42 U.S.C. § 2000e-3(a). .................................................................................................................. 7 42 U.S.C. § 2000e-5(b) ............................................................................................................... 1, 8 42 U.S.C. § 2000e-5(e)(1). ......................................................................................................... 1, 8 Tex. Gov’t Code § 311.034 ......................................................................................................... 1, 8

OTHER AUTHORITIES U.S. Equal Employment Opportunity Commission, Time Limits for Filing a Charge, https://www.eeoc.gov/time-limits-filing-charge (last visited May 27, 2025). ..................... 1, 11

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Statement of the Case

Nature of the Case: In June 2015, Plaintiff was hired by the University of Texas at Arlington (the “University”) as a Warehouse Worker III. In 2017, another individual with the classification of Warehouse Worker III and receiving the same pay as Plaintiff, applied for and was offered a new position, Coordinator I, which is a higher graded position with additional responsibilities. This promotion also included a pay raise. Plaintiff did not apply for this position. In September 2020, at his request, Plaintiff’s position was reclassified as a Mail Carrier II and his salary was increased to $30,000. In January 2021, filed a charge with the EEOC alleging discrimination based on the 2017 promotion of his colleague, for which he did not apply. He now sues the University alleging race discrimination in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”).

Course of Proceedings: Defendant filed its Plea to the Jurisdiction and Motion for Summary Judgment on February 26, 2024. CR.19- 81. On February 29, 2024, Defendant’s Plea was noticed to be heard by submission. 1

Trial Court Disposition: The Honorable R.H. Wallace, Jr., entered an Order on March 13, 2025, denying Defendant’s Plea to the Jurisdiction and Motion for Summary Judgment. CR. 168-169. Defendant timely filed its Notice of Appeal on April 2, 2025, pursuant to Texas Rules of Appellate Procedure Rule 4.2. CR. 172.

1 The Clerk’s Record was filed on April 14, 2025. Upon filing, however, the Clerk’s Record was

incomplete and the University timely filed a request for a supplemental record from the Clerk. Despite having requested this pleading, this appears to be missing from the record. At the time of the filing of this brief, the Clerk’s record has not been supplemented and this document remains missing from the record; therefore, it is attached hereto as Appendix Tab 1.

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Statement Regarding Oral Argument Oral argument is not necessary in this case, as the briefing amply demonstrates

that the trial court erroneously denied the University of Texas at Arlington’s Plea to the Jurisdiction relating to Plaintiff James McMerchant’s Title VII claim. However, if the Court determines that oral argument would be helpful, the University

respectfully requests an opportunity to participate.

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Issues Presented

Statutory prerequisites to suit are jurisdictional requirements in suits against

governmental entities under Texas law. Did the trial court err in denying the University’s Plea to the Jurisdiction because James McMerchant failed to meet the administrative, statutory prerequisites for bringing a Title VII claim?

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Introduction

McMerchant filed an EEOC charge (the “Charge”) on January 13, 2021,

based on an alleged adverse action nearly 4 years prior. This means Plaintiff failed to

exhaust administrative remedies before filing suit, thereby depriving the trial court

of jurisdiction over his claim. As the Supreme Court explained, “Title VII directs

that a ‘charge … shall be filed’ with the EEOC ‘by or on behalf of a person claiming

to be aggrieved’ within 180 days ‘after the alleged unlawful employment practice

occur[s].’” Fort Bend Cnty., Tex. v. Davis, 587 U.S. 541, 543 (2019) (quoting 42

U.S.C. § 2000e-5(b), (e)(1)). “The 180 calendar day filing deadline is extended to

300 calendar days if a state or local agency enforces a law that prohibits employment

discrimination on the same basis.”2 “Statutory prerequisites to a suit, including the

provision of notice, are jurisdictional requirements in all suits against a governmental

entity” under Texas law. Tex. Gov’t Code § 311.034. Thus, as a matter of Texas

procedural law, failure to timely exhaust Title VII’s administrative remedies would

deprive the trial court of jurisdiction to adjudicate those claims against the

University. United Indep. Sch. Dist. v. Mayers, 665 S.W.3d 775, 783 (Tex. App.—San

Antonio 2023, no pet.) (“If [Plaintiff] failed to meet those federal statutory

2 U.S. Equal Employment Opportunity Commission, Time Limits for Filing a Charge, https://www.eeoc.gov/time-limits-filing-charge (last visited May 27, 2025).

prerequisites, the trial court lacked subject-matter jurisdiction over her Title VII and

ADEA claims against [Defendant] as a matter of Texas law.”).

Here, McMerchant failed to meet this statutory prerequisite by filing his

Charge more than 300 days after any alleged adverse action occurred.

Statement of Facts

I. Factual Background McMerchant was hired as a Warehouse Worker in the Property Management department of the University’s Division of Business Affairs on June 23, 2015. CR.44. at 13:5-11; CR.68. Initially, McMerchant reported to Steve Burdette, who reported

to Jason Welch, an Assistant Director in the Division of Business Affairs. CR. 45. at 18:16-17, CR.68. In 2016, while working as a Warehouse Worker, Plaintiff cross trained in the Mail Services department, also in the Division of Business Affairs.

CR.46. at 19:2-22, 74:6-9; CR.68. Specifically, Plaintiff was in training in the mail services department in preparation for the retirement of a Mail Carrier, C.W. Gayle. CR.62. at 73:10-14, CR. 68. According to Plaintiff, once he started training in the

mail room, he stopped working in the Warehouse. CR. 62. at 73:18-21. For context, Warehouse Workers and Mail Carriers serve similar functions: Warehouse Workers deliver and move freight around campus and assist with office and event setup; Mail

Carriers deliver mail across campus. CR. 68.

Approximately one year after Plaintiff was hired, Derek Gieralt was hired as a Warehouse Worker. CR. 45. at 18:6-12, CR. 68. In 2017, the Property Management

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department posted a new position, “Coordinator I,” for which Gieralt applied and was ultimately hired. CR. 68. Plaintiff did not apply for the position. CR. 68.

In 2019, Plaintiff was classified as a Warehouse Worker with a salary of $28,428, and Gieralt was classified as a Coordinator I with a salary of $34,092. CR. 52, 68-69, 74. However, for a time, Gieralt was mistakenly listed on the University’s

website as a Mail Carrier, but this was an error; he had never held the position of Mail Carrier. CR. 68. Plaintiff sought out Derek Gieralt’s salary information on the Texas Tribune website’s database purporting to show state of Texas employees’

salaries and found that Derek Gieralt’s yearly salary was listed at $35,000. See CR.10 at 38:16-39:24, 46:22- 48:13. Because of the mistake on the University’s website, Plaintiff believed Gieralt’s higher salary was attributed to his classification as a Mail

Carrier, therefore if he [Plaintiff] were classified as a Mail Carrier instead of a Warehouse Worker, he believed he should also receive higher pay. CR. 52 at 40:10- 18; CR.47. at 34:11-36:06, CR.5 at ¶ 13 (claiming that Derek Gieralt was hired as Mail

Carrier II in 2020). In reality, as stated above, Gieralt’s salary reflected his 2017 promotion to the Coordinator position. CR. 68. A reclassification from Warehouse Worker to Mail Carrier, however, was not a promotion and would not necessarily

result in higher pay. Id.

At the end of 2019, around the time Gayle was set to retire, Plaintiff approached Welch and requested a raise and title change from Warehouse Worker

to Mail Carrier. CR. 68, CR. 51 at 39:7-19. Welch was amenable to this request but could not take action immediately due to a hiring freeze. CR. 68, CR. 51 at 39:7-24. As soon as the freeze was lifted, Plaintiff was reclassified as a Mail Carrier and

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received a raise. CR. 68. Plaintiff’s raise, from $28,428 to $30,000, reflected that Plaintiff was performing the duties of a Mail Carrier and had picked up some of the

work previously handled by Gayle and would continue to do so. Id., CR. 74.

II. Procedural Background Plaintiff filed a Charge of Discrimination (“the Charge”) with the

EEOC/TWC on January 13, 2021, alleging he was promoted in 2017 but had yet to receive the “appropriate pay raise associated with his promotion.” CR. 41. The Charge also alleges that Welch informed Plaintiff that when Gayle retired, his pay

would be adjusted; however, there is no allegation of an adverse action against him related to this assertion. CR.41. On October 20, 2022, Plaintiff filed his Original Petition against the University, alleging race discrimination in violation of Title VII

of the Civil Rights Act of 1964 (“Title VII”) and age discrimination in violation of the Age Discrimination in Employment Act (“ADEA”). Appendix Tab 2. On November 10, 2022, the University filed its Original Answer and General Denial

asserting, among others, the affirmative defense of failure to exhaust administrative remedies for all relevant claims. Appendix Tab 3 at ¶12. On December 1, 2022, Defendant moved to dismiss Plaintiff’s ADEA claim for lack of subject matter

jurisdiction because it was barred by sovereign immunity. Appendix Tab 4. Plaintiff subsequently filed his First Amended Petition on January 26, 2023, asserting a single claim for race discrimination in violation of Title VII. CR. 4-10. Defendant filed its

Answer to Plaintiff’s First Amended Petition on February 3, 2023, raising once again the failure to exhaust administrative remedies affirmative defense due to Plaintiff’s failure to file a charge with the Equal Employment Opportunity Commission or

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Texas Workforce Commission within 300 days after the alleged unlawful employment practice occurred. Appendix Tab 5 at ¶12. On February 26, 2024,

Defendant filed its Plea to the Jurisdiction and Motion for Summary Judgment asserting the trial court lacked jurisdiction over Plaintiff’s claim due to his failure to exhaust administrative remedies and failure to meet his burden to establish a prima

facia case of race discrimination. CR.23-39.

Summary of the Argument

The trial court erroneously denied the University’s Plea to Jurisdiction over

McMerchant’s Title VII claim because he failed to exhaust his administrative remedies as required by Title VII. Such statutory prerequisites to suit are jurisdictional requirements in all suits against a governmental entity in a Texas state

court, and McMerchant’s failure to demonstrate compliance with all statutory requirements rendered his claims barred against the University. The trial court therefore lacked jurisdiction over McMerchant’s claim against the University, and

the Court should reverse and dismiss his claim.

Standard of Review

Jurisdiction “is essential to the court’s power to decide a case.” Klumb v.

Houston Mun. Emps. Pension Sys., 458 S.W.3d 1, 8 (Tex. 2015) (quoting Tex. Dep’t of

Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004)). When a

governmental entity challenges subject-matter jurisdiction in a plea to the

jurisdiction, as Appellant did here, courts must assure themselves of their

jurisdiction. Abbott v. Mexican Am. Legis. Caucus, Tex. House of Representatives, 647

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S.W.3d 681, 699 n.8 (Tex. 2022); Heckman v. Williamson County, 369 S.W.3d 137,

149 (Tex. 2012). The plaintiff bears the burden to affirmatively demonstrate the trial

court’s jurisdiction. Town of Shady Shores v. Swanson, 590 S.W.3d 544, 550 (Tex.

2019); see also, e.g., Matzen v. McLane, 659 S.W.3d 381, 388-89 (Tex. 2021).

“When a plea to the jurisdiction challenges the pleadings, [the court]

determine[s] if the pleader has alleged facts that affirmatively demonstrate the

court’s jurisdiction to hear the cause.” Miranda, 133 S.W.3d at 226. A plea to the

jurisdiction can also “properly challenge the existence of those very jurisdictional

facts.” Mission Consol. Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629, 635 (Tex. 2012)

(emphasis in original). The court must determine whether it has jurisdiction under

the constitution or by statute at the earliest opportunity. Id. “If the pleadings

affirmatively negate the existence of jurisdiction, then a plea to the jurisdiction may

be granted without allowing the plaintiffs an opportunity to amend.” Miranda, 133

S.W.3d at 227. This Court reviews the trial court’s ruling on a plea to the jurisdiction

de novo. Chambers-Liberty Cnts. Navigation Dist. v. State, 575 S.W.3d 339, 345 (Tex.

2019).

Similarly, the standard of review for summary judgment motions challenging

jurisdiction, and for traditional summary judgment motions under Texas Rule of

Civil Procedure 166a(c) is de novo. Lazarides v. Farris, 367 S.W.3d 788, 797

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(Tex.App.—Houston [14th Dist.] 2012, no pet.); Thomas v. Long, 207 S.W.3d 334,

339-40 (Tex. 2006).

Argument

I. The Trial Court Erred in Denying the University’s Plea to the Jurisdiction Because the Trial Court Lacked Jurisdiction Over McMerchant’s Title VII Claim.

A. Plaintiff failed to exhaust his administrative remedies.

The trial court erred in exercising jurisdiction over McMerchant’s Title VII

claim because he failed to exhaust the mandatory administrative remedies prescribed

by federal law. Title VII of the Civil Rights Act of 1964 prohibits employers from

discriminating against individuals “because of such individual’s race, color, religion,

sex, or national origin.” 42 U.S.C. § 2000e-2(a). In addition, Title VII prohibits

retaliation against an employee “because he has opposed any practice made an

unlawful employment practice by this subchapter.” 42 U.S.C. § 2000e-3(a).

However, before a claimant may bring a Title VII action in court, the statute

requires the individual to file a charge with the Equal Employment Opportunity

Commission (“EEOC”) within 180 days after the alleged unlawful employment

practice occurs. See 42 U.S.C. § 2000e-5(b), (e)(1); Fort Bend, 587 U.S. at 543. This

filing requirement is a statutory prerequisite to suit.

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Because McMerchant filed his Title VII claim in Texas state court, Texas

procedural law governs whether the court had subject-matter jurisdiction over the

claim. Mayers, 665 S.W.3d at 782 (citing BNSF Ry. Co. v. Phillips, 485 S.W.3d 908,

910 (Tex. 2015) (per curiam)). Under Texas law, statutory prerequisites to suit—

including exhaustion of administrative remedies—are considered jurisdictional in

cases brought against governmental entities. Tex. Gov’t Code § 311.034. As the

Mayers court explained, “[i]f [Plaintiff] failed to meet those federal statutory

prerequisites, the trial court lacked subject-matter jurisdiction over her Title VII and

ADEA claims against [Defendant] as a matter of Texas law.” 665 S.W.3d at 783.

McMerchant’s Charge of Discrimination centers on the allegation that he was

“promoted” to Mail Carrier II in 2017 but did not receive a corresponding pay raise

and title promotion until 2020. CR. 41. This mistaken belief is seemingly based on

the perceived raise and titled promotion Gieralt, a white man, received immediately

when he was promoted to Mail Carrier II in 2017—a position he, but not

McMerchant, had applied for— and McMerchant’s misunderstanding about the pay

associated with the Warehouse Worker and Mail Carried positions. Id; CR.5, CR.

47-49, at 34:11-36:06. While the undisputed evidence rebuts these allegations, 3 even

3 The undisputed evidence shows that Plaintiff did not receive a promotion in 2017, he did not

request a raise or title change until the end of 2019 at earliest, and Gieralt’s salary increase in 2017

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if taken as true, McMerchant was required to file his Charge within 300 days of that

alleged discriminatory act. Because the Charge fails to identify a specific date in 2017

on which the alleged failure occurred, we construe the latest possible date—

December 31, 2017—as the operative date for purposes of calculating timeliness.

Accordingly, to have properly exhausted his administrative remedies, McMerchant

was required to file his Charge no later than October 27, 2018. CR.41. He did not file

his charge until nearly 4 years later, on January 13, 2021, rendering this claim untimely

and barred. Id.

As the Supreme Court has explained, each discrete act of discrimination or

retaliation must be a separate charge with the EEOC and must be filed within the

applicable statute of limitations. National Railroad Passenger Corp. v. Morgan, 536

U.S. 101, 114 (2002). Despite this, McMerchant believes his charge covers

numerous instances of discrimination, including his claim that he requested a raise

near the end of 2019, around the time Gayle retired or was retiring. CR. 41. However,

his Charge does not allege that the request was denied, that he failed to receive a

raise, or otherwise describe any action related to this request that could be

considered adverse. Not only was McMerchant required to bring this act in a

was a result of his promotion to Coordinator I, a position different than Plaintiff’s with different roles and responsibilities. See generally, CR.19-81.

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separate charge, but an EEOC charge must include specific details about each

discrete adverse employment action and courts will not construe a change to include

facts that were omitted. National Railroad, 536 U.S. at 113; see also, Jefferson v.

Christus St. Joseph Hosp., 374 Fed. Appx. 485, 490 (5th Cir. 2010) (unpublished)

(affirming district court’s ruling that certain claims were unexhausted where

plaintiffs failed to describe the discriminatory conduct in the charge) (citing McClain

v. Lufkin Indus., 519 F.3d 264, 273 (5th Cir. 2008) (Title VII case)). Therefore, the

Court must disregard this unsupported allegation as a discrete act requiring timely

filing and no basis for tolling the limitations period.

Even if the Court construes the Charge broadly to treat the 2019 raise request

as an adverse action, which it should not, McMerchant still needed to file within 300

days and as a separate Charge—by October 26, 2020—to preserve this claim.

McMerchant filed his EEOC Charge on January 13, 2021. So, only adverse actions

that occurred within the 300 preceding days—on or after March 19, 2020—are

timely brought. There are none.

Accordingly, McMerchant failed to timely exhaust his administrative

remedies, and the trial court lacked subject-matter jurisdiction over his Title VII

claim.

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B. Plaintiff cannot rely on the continuing violation doctrine to resurrect his procedural failures.

In his response to Defendant’s Plea, McMerchant tries to excuse his failure to

timely exhaust administrative remedies by claiming, for the first time, that he faced

continued discrimination from 2017 through October 2020. CR. 93. at ¶ 25. He

argues that the continuing violation doctrine applies and that the 300-day filing

period did not start until October 2020. CR. 94 at ¶ 26. This argument fails because

the continuing violation doctrine does not apply to his claims and lacks support in

the record.

First, the continuing violation doctrine applies only to claims of ongoing

harassment—a claim which McMerchant has not raise.4 Second, the unlawful

conduct must have occurred as a series of related acts over time, not discrete,

isolated incidents. WalMart Stores, Inc. v. Davis, 979 S.W.2d 30, 41-42 (Tex. App.—

Austin 1998, pet. denied). McMerchant’s alleged failure to receive a promotion in

2017 and failure to receive a raise in 2019 are discrete acts, to which the doctrine does

not apply. National Railroad, 536 U.S. at 114 (holding that hostile work environment

4 National Railroad, 536 U.S. at 114 (2002) (holding that hostile work environment claims may

qualify as continuing violations, while “termination, failure to promote, denial of transfer, or refusal to hire” are discrete acts); see also, U.S. Equal Employment Opportunity Commission, Time Limits for Filing a Charge, https://www.eeoc.gov/time-limits-filing-charge (last visited May 27, 2025) (explaining the “one exception to this general rule” of requiring a charge be filed within 180/300 days of each discrete act is “if you are alleging ongoing harassment.”).

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claims may qualify as continuing violations, while “termination, failure to promote,

denial of transfer, or refusal to hire” are discrete acts).

McMerchant therefore had to file his Charge within 300 days of each discrete

act: by October 2018 for the 2017 promotion denial, and by October 2020 for the

2019 raise denial. Since he filed on January 13, 2021, he failed to timely exhaust his

remedies and the trial court thus lacked subject-matter jurisdiction over Title VII

claim.

Prayer

For the foregoing reasons, this Court should reverse the trail court’s

judgement denying the University’s Plea to the Jurisdiction and Motion for

Summary Judgment.

Respectfully submitted,

KEN PAXTON BRIANNA M. KROMINGA Attorney General of Texas Assistant Attorney General Texas Bar No. 24103252

BRENT WEBSTER Brianna.Krominga@oag.texas.gov First Assistant Attorney General Office of the Attorney General RALPH MOLINA General Litigation Division Deputy First Assistant Attorney General P.O. Box 12548, Capitol Station Austin, Texas 78711-2548

AUSTIN KINGHORN (214) 290-8884 | FAX: (512) 320-0667 Deputy Attorney General for Civil Litigation COUNSEL FOR APPELLANT

KIMBERLY GDULA Chief for General Litigation Division

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Certificate of Service

I hereby certify that on May 27, 2025, a true and correct copy of the foregoing document has been served via the Court’s electronic notification system to:

Ali Crocker Crocker Russell & Associates 2401 Callender Road, Suite 103 Mansfield, Texas 76063 Office: (817) 482-6570 Fax: (682) 232-1850 alic@cralawfirm.com

/S/ Brianna M. Krominga BRIANNA M. KROMINGA Assistant Attorney General

Certificate of Compliance

This document complies with the typeface requirements of Tex. R. App. P.

9.4(e) because it has been prepared in a conventional typeface no smaller than 14-

point for text and 12-point for footnotes. This document also complies with the

word-count limitations of Tex. R. App. P. 9.4(i), if applicable, because it contains

2,923 words, excluding any parts exempted by Tex. R. App. P. 9.4(i)(1).

/S/ Brianna M. Krominga BRIANNA M. KROMINGA Assistant Attorney General

No. 5-25-00038-CV

In the Court of Appeals

for the Fifteenth Judicial District Austin, Texas University of Texas at Arlington, Appellant,

v.

James McMerchant,

Appellee.

On Appeal from Cause No. 236-337930-22, in the 236th Judicial District Court of Tarrant County, Texas

APPENDIX

TAB

1. Defendant’s Notice of Submission Hearing PTJ-MSJ................................1 2. Plaintiff’s Original Petition ........................................................................2 3. Defendant’s Original Answer ....................................................................3 4. Defendant’s Plea to the Jurisdiction and motion to dismiss .......................4 5. Defendant’s Answer to Plaintiff’s Amended Petition ................................5 6. 42 U.S.C. 2000e-2(a) .................................................................................6 7. 42 U.S.C. 2000e-3(a) .................................................................................7 8. 42 USC 2000e-5(b),(e)(1) ..........................................................................8 9. Tex Gov Code 311.034 ...............................................................................9

TAB 1:

236-337930-22 FILED TARRANT COUNTY 2/29/2024 4:27 PM

CAUSE NO. 236-337930-22 THOMAS A. WILDER DISTRICT CLERK

JAMES MCMERCHANT, § IN THE DISTRICT COURT Plaintiff, § v. § §

UNIVERSITY OF TEXAS AT § TARRANT COUNTY, TEXAS ARLINGTON. § Defendant. § § § 236TH JUDICIAL DISTRICT

NOTICE OF SUBMISSION ON DEFENDANT’S PLEA TO THE JURISDICTION AND MOTION FOR SUMMARY JUDGEMENT

PLEASE TAKE NOTICE that Defendant’s Plea to the Jurisdiction and Motion for

Summary Judgment has been set for submission on April 19, 2024 in the 236th Judicial District

Court, 100 North Calhoun Street, Fort Worth, Texas.

Respectfully submitted.

KEN PAXTON Attorney General of Texas

BRENT WEBSTER First Assistant Attorney General

JAMES LLOYD Deputy Attorney General for Civil Litigation

KIMBERLY GDULA Chief, General Litigation Division

/s/ Mary B. Quimby______

MARY B. QUIMBY Attorney in Charge Texas Bar No. 24132506 Assistant Attorney General General Litigation Division

P.O. Box 12548 Austin, Texas 78711 (512) 463-2120 – Phone (512) 320-0667 – Fax mary.quimby@oag.texas.gov Counsel for Defendant UTA

CERTIFICATE OF SERVICE

I hereby certify that on February 29, 2024, a true and correct copy of this document was electronically filed via the Court’s e-service system, causing electronic service upon all counsel of record.

/s/ Mary B. Quimby

MARY B. QUIMBY Assistant Attorney General

Automated Certificate of eService This automated certificate of service was created by the efiling system. The filer served this document via email generated by the efiling system on the date and to the persons listed below. The rules governing certificates of service have not changed. Filers must still provide a certificate of service that complies with all applicable rules.

Laura Hendrix on behalf of Mary Quimby Bar No. 24132506 Laura.Hendrix@oag.texas.gov Envelope ID: 85071059 Filing Code Description: Notice Filing Description: 20240229_Ntc of Submission PTJ_MSJ Status as of 2/29/2024 4:31 PM CST

Case Contacts

Name BarNumber Email TimestampSubmitted Status

Ali Crocker ali@cralawfirm.com 2/29/2024 4:27:36 PM SENT

Associated Case Party: THEUNIVERSITY OF TEXAS AT ARLINGTON

Name BarNumber Email TimestampSubmitted Status

Laura Hendrix laura.hendrix@oag.texas.gov 2/29/2024 4:27:36 PM SENT

Mary Quimby mary.quimby@oag.texas.gov 2/29/2024 4:27:36 PM SENT

TAB 2:

FILED

TARRANT COUNTY

236-337930-22 10/20/2022 9:13 AM CAUSE NO. ___________________ THOMAS A. WILDER DISTRICT CLERK

JAMES MCMERCHANT, § IN THE DISTRICT COURT Plaintiff, § §

v. § _____ JUDICIAL DISTRICT §

UNIVERSITY OF TEXAS AT § ARLINGTON, § Defendant. § TARRANT COUNTY, TEXAS

PLAINTIFF'S ORIGINAL PETITION

TO THE HONORABLE JUDGE OF SAID COURT:

NOW COMES James McMerchant, hereinafter called Plaintiff, complaining of

University of Texas at Arlington. hereinafter called Defendant, and for cause of action shows unto

the Court the following:

DISCOVERY CONTROL PLAN LEVEL

1. Plaintiff intends that discovery be conducted under Discovery Level 2.

PARTIES AND SERVICE

2. Plaintiff, James McMerchant, is an individual residing in the State of Texas whose

address is 7413 Beckwood Drive, Fort Worth, Texas 76112.

3. Defendant University of Texas at Arlington is an agency of the State of Texas and

may be served with process by serving its interim President, Teik C. Lim, located at 701 S.

Nedderman Drive, Arlington, Texas 76019, or wherever he may be found.

JURISDICTION AND VENUE

4. The subject matter in controversy is within the jurisdictional limits of this court.

5. The damages sought in this suit are within the jurisdictional limits of this Court. As

required by Texas Rule of Civil Procedure 47, Plaintiff seeks only monetary relief aggregating $250,000 or less, excluding costs, prejudgment interest, and attorney’s fees. Tex. R. Civ. P.

47(c)(1).

6. Venue is proper in Tarrant County in that the events giving rise to this cause of

action occurred within Tarrant County.

FACTS

7. Plaintiff is sixty-seven (67) year old African-American individual.

8. Plaintiff was initially employed by Defendant as a warehouse worker.

9. Throughout Plaintiff’s tenure with Defendant, he was not written up, reprimanded, or

admonished.

10. In or around 2017, Defendant promoted Plaintiff from warehouse worker to a Mail

Carrier II position which included a new title, new job duties, and a pay raise. Thereafter, Plaintiff

assumed his new job duties but Defendant failed to change his title and pay.

11. Plaintiff repeatedly brought the title and pay issues to the attention of his manager,

Jason Welch, as well as Defendant’s human resource department. Neither Jason Welch nor

Defendant’s human resource department did anything to remedy the problems.

12. In or around 2019, two years after Plaintiff’s promotion but still without the pay raise

associated with that promotion, Jason Welch informed Plaintiff that when another employee left her

position, Plaintiff’s pay and title would be adjusted to the proper rate.

13. In or around 2020, Defendant hired Derek Gieralt, a younger Caucasian man, for a

Mail Carrier II position. Derek Gieralt started working as a warehouse employee, but with the Mail

Carrier II title, and was receiving pay associated with the Mail Carrier II position. When questioned

about this by Plaintiff, Defendant could not explain why it took over two years to get Plaintiff’s, a

black man, title and pay raised to the Mail Carrier II position when he was hired for and began working in that position in 2017, but that Defendant would go out of its way to make sure that the title and pay

were accurate for a white individual immediately upon hiring but then pay that increased pay for

someone doing less as a warehouse worker.

CAUSE OF ACTION I: AGE DISCRIMINATION IN EMPLOYMENT ACT (“ADEA”) VIOLATION

14. Plaintiff incorporates all preceding paragraphs herein.

15. Age Discrimination in Employment Act of 1967., 81 Stat. 602, states: “it shall be

unlawful employment practice for an employer to fail or refuse to hire or to discharge any individual,

or otherwise to discriminate against any individual with respect to his compensation, terms,

conditions, or privileges of employment, because of such individual’s age; or to limit, segregate, or

classify his employees or applicants for employment in any way which would deprive or tend to

deprive any individual of employment opportunities or otherwise adversely affect his status as an

employee, because of age.” See also Tex. Lab. Code § 21.051.

16. The case law is clear. A plaintiff must establish a prima facie case of discrimination.

If the plaintiff establishes a prima facie case, the burden then shifts to the defendant to articulate

some legitimate nondiscriminatory reason for its employment decision. If the defendant

articulates a legitimate nondiscriminatory reason, then, the plaintiff, in order to prevail, must

demonstrate that the employer’s alleged reason for the adverse employment decision is a pretext

for another motive which is discriminatory. See McDonnell Douglas Corp. v. Green, 411 U.S. 792

(1973).

17. Within this general framework, the specifics to establish a prima facie case are

outlined in the four-point McDonnell test. In McDonnell, the Court established a four-point test

by which a plaintiff can show a prima facie case of discrimination. The plaintiff must show that:

(1) the plaintiff belongs to a class protected by Title VII; (2) the plaintiff was qualified for his position; (3) the plaintiff, despite being qualified, was rejected; plaintiff experienced an adverse

employment action; and (4) similarly situated individuals outside his protected class were treated

more favorably, or other circumstances surrounding the adverse employment action give rise to

an inference of discrimination.

18. With respect to the first requirement, under ADEA, discrimination based on age is

prohibited. In 2017 at the onset of this discrimination, Plaintiff was sixty-two (62) years old which

falls within a protected class as a person over 40 years of age.

19. As to the second requirement, throughout Plaintiff’s tenure with Defendant, he was

not written up, reprimanded, or admonished. In fact, after having worked for and developed a good

working history for Defendant, Plaintiff was promoted to a Mail Carrier II position in 2017.

Plaintiff worked in that Mail Carrier II position for years despite not receiving the title and pay

increase that he was promised by Defendant in his promotion. Despite not receiving his additional

promised benefits, Plaintiff dutifully worked in that position without any complaints from

Defendant. Thus, it is apparent that Plaintiff was qualified for his position.

20. Despite being qualified, Plaintiff received adverse employment action. Despite his

work performance history and never having received a reprimand or other disciplinary action

during his tenure with Defendant, Plaintiff was given increased responsibility with his new

position but was refused the correct title and pay raise that was part of that position. He was

directly damaged as a result because he was forced to work in his new position with increased

responsibilities for over two years without receiving the pay for which he was promised in that

promotion to Mail Carrier II.

16. Defendant has previously responded to Plaintiff’s allegations with the excuse that

Plaintiff said he didn’t want a pay raise. That is absolutely false. Between 2017 when he was promoted and 2020 when the younger white male was hired for the same position and immediately

given the new title and increased pay associated with the Mail Carrier II position, Plaintiff

repeatedly went to his manager, Jason Welch, and Defendant’s human resources department to

complain that he wasn’t receiving the proper pay and title. Each time Plaintiff was repeatedly given

an excuse as to why the pay could not be adjusted at that time. Plaintiff simply wanted to be paid

for the work he was doing. Defendant had no problem immediately paying the younger white man

the proper pay for having the same position title as Plaintiff, they only had problems paying the

older African-American man what he was entitled to be paid.

17. Defendant has yet to provide a legitimate reason for the refusal to grant Plaintiff

the pay and title for which he was hired but denied but were so eager to provide to Plaintiff’s

younger, Non-African American colleagues.

CAUSE OF ACTION II: TITLE VII VIOLATION FOR DISCRIMINATION BASED ON RACE

18. Plaintiff incorporates all preceding paragraphs herein.

19. Title VII of the Civil Rights Act of 1964 (the “Act”) makes it unlawful to

discriminate against someone on the basis of race, color, national origin, sex (including pregnancy,

sexual orientation, and gender identity) or religion. The Act prohibits not only intentional

discrimination, but also practices that have the effect of discriminating against individuals because

of their race, color, national origin, religion, or sex.

20. The case law is clear. A plaintiff must establish a prima facie case of discrimination.

If the plaintiff establishes a prima facie case, the burden then shifts to the defendant to articulate

some legitimate nondiscriminatory reason for its employment decision. If the defendant articulates

a legitimate nondiscriminatory reason, then, the plaintiff, in order to prevail, must demonstrate that the employer’s alleged reason for the adverse employment decision is a pretext for another motive

which is discriminatory. See McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

21. Within this general framework, the specifics to establish a prima facie case are

outlined in the four-point McDonnell test. In McDonnell, the Court established a four-point test by

which a plaintiff can show a prima facie case of discrimination. The plaintiff must show that: (1)

the plaintiff belongs to a protected class; (2) the plaintiff was qualified for his position; (3) the

plaintiff, despite being qualified, was rejected; plaintiff experienced an adverse employment

action; and (4) similarly situated individuals outside his protected class were treated more

favorably, or other circumstances surrounding the adverse employment action give rise to an

inference of discrimination.

22. With respect to the first requirement, Plaintiff is African-American and thus a

member of a protected class based on his race.

23. As stated above, throughout Plaintiff’s tenure with Defendant, he was not written up,

reprimanded, or admonished. In fact, after having worked for and developed a good working history

for Defendant, Plaintiff was promoted to a Mail Carrier II position in 2017. Plaintiff worked in

that Mail Carrier II position for years despite not receiving the title and pay increase that he was

promised by Defendant in his promotion. Despite not receiving his additional promised benefits,

Plaintiff dutifully worked in that position without any complaints from Defendant. Thus, it is

apparent that Plaintiff was qualified for his position.

24. Also as previously stated, despite being qualified Plaintiff received adverse

employment action from Defendant. Despite his work performance history and never having

received a reprimand or other disciplinary action during his tenure with Defendant, Plaintiff was

given increased responsibility with his new position but was refused the correct title and pay raise that was part of that position. He was directly damaged as a result because he was forced to work

in his new position with increased responsibilities for over two years without receiving the pay for

which he was promised in that promotion to Mail Carrier II.

25. Between 2017 when he was promoted and 2020 when the younger white male was

hired for the same position and immediately given the new title and increased pay associated with

the Mail Carrier II position, Plaintiff repeatedly went to his manager, Jason Welch, and

Defendant’s human resources department to complain that he wasn’t receiving the proper pay and

title. Each time Plaintiff was repeatedly given an excuse as to why the pay could not be adjusted

at that time. Plaintiff simply wanted to be paid for the work he was doing. Defendant had no

problem immediately paying the younger white man the proper pay for having the same position

title as Plaintiff, they only had problems paying the older African-American man what he was

entitled to be paid.

26. Defendant has yet to provide a legitimate reason for the refusal to grant Plaintiff

the pay and title for which he was hired but denied but were so eager to provide to Plaintiff’s

younger, Non-African American colleagues.

CONDITIONS PRECEDENT

27. All conditions precedent to jurisdiction have occurred or been complied with: a

charge of discrimination was filed with the Equal Employment Opportunity Commission within

three-hundred days of the acts complained of herein and Plaintiff's Petition is filed within ninety

days of Plaintiff's receipt of the Equal Employment Opportunity Commission's issuance of a right

to sue letter.

DAMAGES

28. Plaintiff incorporates all preceding paragraphs herein. As a direct and proximate

result of the occurrence made the basis of this lawsuit and Defendant’s acts as described herein,

Plaintiff suffered damages including but not limited to the loss of income and earnings, attorney

fees, court costs, and other damages as described herein or as may be prove at the time of trial.

ATTORNEY'S FEES

29. Request is made for all costs and reasonable and necessary attorney's fees incurred

by or on behalf of Plaintiff herein, including all fees necessary in the event of an appeal of this

cause to the Court of Appeals and the Supreme Court of Texas, as the Court deems equitable and

just, as provided by: (a) Section 17.50(d) of the Texas Business and Commerce Code; (b) Chapter

38 of the Texas Civil Practice and Remedies Code; and, (c) common law.

PRAYER

WHEREFORE, PREMISES CONSIDERED, Plaintiff respectfully prays that the

Defendant be cited to appear and answer herein, and that upon a final hearing of the cause,

judgment be entered for the Plaintiff against Defendant for the economic and actual damages

requested hereinabove in an amount in excess of the minimum jurisdictional limits of the Court,

together with prejudgment and post judgment interest at the maximum rate allowed by law,

attorney's fees, costs of court, and such other and further relief to which the Plaintiff may be

entitled at law or in equity, whether pled or unpled.

Respectfully Submitted,

Crocker Russell & Associates 2401 Callender Road, Suite 103 Mansfield, Texas 76063 Tel: (817) 482-6570 Fax: (682) 232-1850 /s/ Ali Crocker Russell Ali Crocker Russell Bar No: 24098868 Email: ali@cralawfirm.com Attorney for Plaintiff

DocuSign Envelope ID: 96AD8DE2-21F8-4693-B300-DA58E9CE3ED8

James McMerchant Crocker Russell & Associates c/o Ali Crocker 2401 Callender Road, Suite 103 Mansfield, TX 76063

NOTICE OF DISMISSAL AND RIGHT TO FILE CIVIL ACTION

James McMerchant v UNIVERSITY OF TEXAS AT ARLINGTON

TWCCRD Charge Number EEOC Charge Number TWCCRD Representative 1A21464 31C-2021-00415 Monica John

The Civil Rights Division has dismissed this Charge and is closing its file for the following reason:

[ ] The facts alleged in the charge fail to state a claim under any of the statutes enforced by the TWCCRD.

[ ] Your allegations did not involve a disability that is covered by the Americans with Disabilities Act or the Texas Labor Code, Chapter 21.

[ ] The Respondent employs less than the required number of employees or not otherwise covered by the statutes.

[ ] We cannot investigate your charge because it was not filed within the time limits required by law.

[ ] Having been given 30 days in which to respond, you failed to provide information, failed to appear or be available for interviews/conferences, or otherwise failed to cooperate to the extent that it was not possible to resolve your charge.

[ ] While reasonable efforts were made to locate you, we were not able to do so.

[ ] You had 30 days to accept a reasonable settlement offer that afforded full relief for the harm you alleged. You failed to accept the full relief.

[X] The TWCCRD issues the following determination: Based upon its investigation, the TWCCRD is unable to conclude that the information obtained establishes any violations of the statutes. This does not certify that the respondent is in compliance with the statutes. No finding is made as to any other issues that might be construed as having been raised by this charge.

[ ] Other:

101 E. 15th Street, Room: Guadalupe CRD • Austin, Texas 78778-0001• Austin, Texas 78701 • (512) 463-2642 (T) • (512) 482-8465 (F) • Relay Texas: 800-735-2989 (TDD) 800-735-2988 (Voice) • www.texasworkforce.org Equal Opportunity Employer / Program

DocuSign Envelope ID: 96AD8DE2-21F8-4693-B300-DA58E9CE3ED8 James McMerchant v UNIVERSITY OF TEXAS AT ARLINGTON TWCCRD Charge Number: 1A21464«Field2» EEOC Charge Number: 31C-2021-00415

NOTICE OF RIGHT TO FILE CIVIL ACTION

Pursuant to Sections 21.208, 21.252 and 21.254 of the Texas Labor Code, as amended, this notice is to advise you of your right to bring a private civil action in state court in the above referenced case. PLEASE BE ADVISED THAT YOU HAVE SIXTY (60) DAYS FROM THE RECEIPT OF THIS NOTICE TO FILE THIS CIVIL ACTION. The time limit for filing suit based on a federal claim may be different.

EEOC REVIEW NOTICE

As your charge was dual filed under Title VII of the Civil Rights Act/Age Discrimination in Employment Act/Americans with Disabilities Act, which are enforced by the U.S. Equal Employment Opportunity Commission (EEOC), you have the right to request an EEOC review of this final decision on your case. To secure a review, you must request it in writing within fifteen (15) days from the date of the notice. Send your request to: San Antonio EEOC, 5410 Fredericksburg Road, Suite 200, San Antonio, TX 78229.

On behalf of the Division

________________________ 8/24/2022

________________

Bryan Snoddy Date Division Director

cc:

THE UNIVERSITY OF TEXAS AT ARLINGTON c/o Shelby Boseman 701 S. Nedderman Drive, Suite 246 Arlington, TX 76019

Automated Certificate of eService This automated certificate of service was created by the efiling system. The filer served this document via email generated by the efiling system on the date and to the persons listed below. The rules governing certificates of service have not changed. Filers must still provide a certificate of service that complies with all applicable rules.

Micala Munoz on behalf of Ali Crocker Bar No. 24098868 micala@cralawfirm.com Envelope ID: 69398406 Status as of 10/20/2022 9:23 AM CST

Associated Case Party: James McMerchant

Name BarNumber Email TimestampSubmitted Status

Ali Crocker ali@cralawfirm.com 10/20/2022 9:13:32 AM SENT

Martha Aguilar martha@cralawfirm.com 10/20/2022 9:13:32 AM SENT

Micala Munoz micala@cralawfirm.com 10/20/2022 9:13:32 AM SENT

TAB 3:

236-337930-22 FILED TARRANT COUNTY 11/10/2022 6:05 PM

CAUSE NO. 236-337930-22 THOMAS A. WILDER DISTRICT CLERK

JAMES MCMERCHANT, § IN THE DISTRICT COURT §

Plaintiff, § v. § § TARRANT COUNTY, TEXAS UNIVERSITY OF TEXAS AT § ARLINGTON. § §

Defendant. § 236TH JUDICIAL DISTRICT

DEFENDANT’S ORIGINAL ANSWER AND REQUEST FOR DISCLOSURE

TO THE HONORABLE JUDGE OF SAID COURT:

NOW COMES Defendant University of Texas at Arlington (“UTA”) who files this

Original Answer and Request for Disclosure, and would respectfully show the Court as follows:

I.

ORIGINAL ANSWER

Defendant asserts a general denial to the allegations contained in Plaintiff’s Original

Petition and all matters subsequently set up by Plaintiff, as authorized by Rule 92 of the Texas

Rules of Civil Procedure, and demand that Plaintiff prove such allegations by a preponderance of

the evidence as required by law.

II. DEFENSES

In addition to its general denial, Defendant UTA asserts the following defenses:

1. Defendant UTA denies that it violated any of Plaintiff’s rights under the Age

Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621 et seq., Title VII of the

Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq., Chapter 21 of the Texas

Labor Code, or any other law or statute which Plaintiff sues or may be suing.

2. Defendant UTA denies that Plaintiff is entitled to damages, attorney’s fees, interest, or

costs in any amount whatsoever, or to any other relief demanded in Plaintiff’s Original

Petition.

3. Defendant UTA asserts, with respect to any alleged material adverse employment action it

took concerning Plaintiff and of which Plaintiff complains in this lawsuit, that it would

have taken the same action or actions regardless of Plaintiff’s alleged protected

characteristics or status or alleged retaliation.

4. Defendant UTA denies that its employees were motivated by any discriminatory or

retaliatory intent of any kind.

5. Defendant UTA asserts that the employment actions, if any, taken regarding Plaintiff were

taken without any discriminatory or retaliatory intent.

6. Defendant UTA asserts that the employment actions, if any, taken regarding Plaintiff

concerning any claim alleged by Plaintiff in this lawsuit were based on a good-faith belief

that such actions were lawful and consistent with agency policy.

7. Defendant UTA asserts that each alleged challenged action of which Plaintiff complains in

this lawsuit was taken for legitimate, non-discriminatory business reasons.

8. Defendant UTA asserts that Plaintiff has failed to mitigate or avoid damages, emotional or

monetary, he claims to have suffered and that none of the alleged damages, if any, are the

result of any discriminatory or retaliatory act by Defendant.

9. Sovereign immunity from suit bars any and all of Plaintiff’s claims to which that

affirmative defense may apply.

10. Sovereign immunity from liability bars Plaintiff’s recovery to such an extent that this

affirmative defense may apply.

11. Defendant UTA asserts its right to any allowable credits or offsets against any judgment in

Plaintiff’s favor.

12. Defendant UTA asserts the affirmative defense of failure to exhaust administrative

remedies for all claims to which it may apply.

13. Any damages Plaintiff may allege are subject to applicable statutory caps or specifically

denied by statute.

14. To the extent that Plaintiff’s claims or filings occurred outside any applicable statutory

periods or were not thoroughly exhausted through any required administrative process, her

claims are barred.

15. Defendant UTA asserts the right to raise additional affirmative defenses that become

apparent throughout the factual development of this case.

III. PRAYER

Defendant requests judgment of the Court that Plaintiff take nothing by this suit and that

Defendant recovers all costs and such other and further relief to which they may be justly entitled.

Respectfully submitted.

KEN PAXTON Attorney General of Texas

BRENT WEBSTER First Assistant Attorney General

GRANT DORFMAN Deputy First Assistant Attorney General

SHAWN COWLES Deputy Attorney General for Civil Litigation

CHRISTOPHER D. HILTON Chief, General Litigation Division

/s/ Benjamin S. Walton

BENJAMIN S. WALTON Attorney in Charge Texas Bar No. 24075241 Assistant Attorney General General Litigation Division P.O. Box 12548 Austin, Texas 78711 (512) 463-2120 – Phone (512) 320-0667 – Fax benjamin.walton@oag.texas.gov

ATTORNEY FOR DEFENDANT

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing instrument has been served electronically through the electronic-filing manager in compliance with TRCP 21a on this 10th day of November, 2022, to:

Ali Crocker Russell 2401 Callender Road, Suite 103 Mansfield, Texas 76063 ali@cralawfirm.com ATTORNEY FOR PLAINTIFF

/s/ Benjamin S. Walton

BENJAMIN S. WALTON Assistant Attorney General

Automated Certificate of eService This automated certificate of service was created by the efiling system. The filer served this document via email generated by the efiling system on the date and to the persons listed below. The rules governing certificates of service have not changed. Filers must still provide a certificate of service that complies with all applicable rules.

Laura Hendrix on behalf of Benjamin Walton Bar No. 24075241 Laura.Hendrix@oag.texas.gov Envelope ID: 70089140 Status as of 11/11/2022 8:22 AM CST

Case Contacts

Name BarNumber Email TimestampSubmitted Status

Ali Crocker ali@cralawfirm.com 11/10/2022 6:05:28 PM SENT

Micala Munoz micala@cralawfirm.com 11/10/2022 6:05:28 PM SENT

Martha Aguilar martha@cralawfirm.com 11/10/2022 6:05:28 PM SENT

Associated Case Party: THEUNIVERSITY OF TEXAS AT ARLINGTON

Name BarNumber Email TimestampSubmitted Status

Benjamin Walton benjamin.walton@oag.texas.gov 11/10/2022 6:05:28 PM SENT

Mary Quimby mary.quimby@oag.texas.gov 11/10/2022 6:05:28 PM SENT

Laura Hendrix laura.hendrix@oag.texas.gov 11/10/2022 6:05:28 PM SENT

TAB 4:

236-337930-22 FILED TARRANT COUNTY 12/1/2022 8:46 AM

CAUSE NO. 236-337930-22 THOMAS A. WILDER DISTRICT CLERK

JAMES MCMERCHANT, § IN THE DISTRICT COURT §

Plaintiff, § v. § § TARRANT COUNTY, TEXAS UNIVERSITY OF TEXAS AT § ARLINGTON. § §

Defendant. § 236TH JUDICIAL DISTRICT

DEFENDANT’S PLEA TO THE JURISDICTION AND MOTION TO DISMISS UNDER TEXAS RULE OF CIVIL PROCEDURE 91A

NOW COMES Defendant The University of Texas at Arlington (“UTA”) and files this

Plea to the Jurisdiction and Motion to Dismiss under Texas Rule of Civil Procedure 91a.

This Court should dismiss Plaintiff’s ADEA claims for lack of subject-matter jurisdiction

because it is barred by sovereign immunity. Additionally, Plaintiff’s ADEA claim has no basis in

law for the reasons described in more detail below. As such, this Court should dismiss Plaintiff’s

ADEA claims under Texas Rule of Civil Procedure 91a.

I. BACKGROUND

Plaintiff alleges he is a 67 year-old African American man, employed by the defendant,

originally as a “warehouse worker.” Orig. Pet. ¶¶ 7-8. Plaintiff alleges that in 2017, he was

promoted to a “Mail Carrier II” position which included a pay raise, but Defendant failed to change

his title and pay even though he had assumed his new role. Id. ¶ 10. Plaintiff alleges that in 2019,

two years after he assumed the “Mail Carrier II” position, his pay and title were adjusted to the

proper rate. Id. ¶ 12.

II. ARGUMENT AND AUTHORITIES

A. Plea to the Jurisdiction

i. Standard of Review

A plea to the jurisdiction challenges the court’s authority to decide a case. Heckman v.

Williamson Cnty., 369 S.W.3d 137, 149 (Tex. 2012). The plaintiff bears the burden to affirmatively

demonstrate the trial court’s jurisdiction. Id. at 150; Tex. Dep’t of Parks & Wildlife v. Miranda,

133 S.W.3d 217, 227 (Tex. 2004); Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446

(Tex. 1993) (The standard of review for subject-matter jurisdiction requires the pleader to “allege

facts that affirmatively demonstrate the court’s jurisdiction to hear the cause.”); Texas Dep’t of

Crim. Justice v. Miller, 48 S.W.3d 201, 203 (Tex. App.—Houston [1st Dist.]1999), rev’d on other

grounds, 51 S.W.3d 583, 589 (Tex. 2001)). Subject-matter jurisdiction cannot be waived, nor is it

presumed. Id. at 443–44. At the earliest opportunity the court must determine whether it has

jurisdiction under the constitution or by statute to allow litigation to proceed. Miranda, 133 S.W.3d

at 226. “When a plea to the jurisdiction challenges the pleadings, [the court] determine[s] if the

pleader has alleged facts that affirmatively demonstrate the court’s jurisdiction to hear the cause.”

Id. at 226. “If the pleadings affirmatively negate the existence of jurisdiction, then a plea to the

jurisdiction may be granted without allowing the plaintiffs an opportunity to amend.” Id. at 227.

ii. Plaintiff’s ADEA claim is barred by sovereign immunity.

A suit against the State or its agencies is barred by sovereign immunity absent clear and

unambiguous legislative consent. Texas Dep’t of Parks and Wildlife v. Miranda, 133 S.W.3d 217,

224 -225 (Tex. 2004); Tex. Dep’t of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex. 1999). Sovereign

immunity deprives a court of subject-matter jurisdiction, and dismissal with prejudice is proper.

Ramos v. Texas Dep’t of Pub. Safety, 35 S.W.3d 723, 734 (Tex. App.—Houston [1st Dist.] 2000, pet. denied) (citing City of Austin v. L.S. Ranch, Ltd., 970 S.W.2d 750, 752 (Tex. App.—Austin

1998.). This immunity extends to various divisions of state government, including universities.

Slade v. Tex. S. Univ. Bd. of Regents, 232 S.W.3d 395, 398 (Tex.App.-Houston [1st Dist.] 2007,

no pet.) citing Tooke v. City of Mexia, 197 S.W.3d 325, 330 n. 11 (Tex.2006); Wichita Falls State

Hosp. v. Taylor, 106 S.W.3d 692, 694 n. 3 (Tex.2003). UTA is part of the University of Texas

System, a state agency. TEX. EDUC. CODE §§ 65.02(a)(1), 68.01 et seq.

Plaintiff is required to affirmatively demonstrate the Court’s jurisdiction to hear the lawsuit

under some statute that waives sovereign immunity. Miller, 51 S.W. 3d at 587. To avoid dismissal

based on sovereign immunity, a plaintiff must demonstrate either a valid Congressional abrogation

of that immunity or a waiver of immunity by the state. Univ. of Tex. at El Paso v. Herrera, 322

S.W.3d 192, 195 (Tex. 2010). Plaintiff can demonstrate neither. The United States Supreme Court

has held that the ADEA is not a valid exercise of Congress’s power to waive immunity under

section 5 of the Fourteenth Amendment and does not validly abrogate the states’ sovereign

immunity from suit. Kimel v. Florida Bd. of Regents, 528 U.S. 62, 91 (2000); see Sullivan v. Univ.

of Tex. Health Sci. Ctr. at Houston Dental Branch, 217 F. App’x 391, 395 (5th Cir.2007) (holding

that medical center had sovereign immunity from an age discrimination claim); Univ. of Tex. at

Dallas v. Matney, 280 S.W.3d 882, 885 (Tex.App.– Dallas 2009, no pet.) (holding that plaintiff’s

ADEA claim barred by sovereign immunity); Tex. A&M AgriLife Ext. Servs. v. Garcia No. 10-18-

00094-CV, 2018 WL 4354055 at *1-2 (Tex.App – Waco 2018, no pet.) (plaintiff did not show that

the Texas legislature waived the State’s immunity from suits under the ADEA); Klebe v. Univ. of

Tex. Sys. No. 03-05-00527-CV, 2007 WL 2214344 at *5 (Tex.App – Austin 2007, no pet) (plaintiff

offered no legislative authority that authorized an ADEA suit against the State). As a result, this

Court lacks subject-matter jurisdiction over Plaintiff’s ADEA claim. Therefore, the Court must

dismiss Plaintiff’s ADEA claim for lack of subject-matter jurisdiction.

B. Motion to Dismiss

Generally, “a party may move to dismiss a cause of action on the grounds that it has no

basis in law or fact.” Tex. R. Civ. P. 91a.1. Per Rule 91a, “[a] cause of action has no basis in law

if the allegations, taken as true, together with inferences reasonably drawn from them, do not entitle

the claimant to the relief sought. A cause of action has no basis in fact if no reasonable person

could believe the facts pleaded.” Id. Defendant files this motion to dismiss in accordance with

the time limits prescribed in Rule 91a.3(a)–(b). Rule 91a requires this motion to be “granted or

denied within 45 days after the motion is filed.” Tex. R. Civ. P. 91a.3(c).

Plaintiff’s ADEA claim has no basis in law because it is barred by sovereign immunity, as

discussed above. Thus, this Court should dismiss the ADEA claim pursuant to Rule 91a.

CONCLUSION

For the foregoing reasons, Defendant UTA respectfully request this Court to dismiss

Plaintiff’s ADEA claim.

Respectfully submitted.

KEN PAXTON Attorney General of Texas

BRENT WEBSTER First Assistant Attorney General

GRANT DORFMAN Deputy First Assistant Attorney General

SHAWN COWLES Deputy Attorney General for Civil Litigation

CHRISTOPHER D. HILTON Chief, General Litigation Division

/s/ Mary B. Quimby______ MARY B. QUIMBY Attorney in Charge Texas Bar No. 24132506 Assistant Attorney General General Litigation Division P.O. Box 12548 Austin, Texas 78711 (512) 463-2120 – Phone (512) 320-0667 – Fax mary.quimby@oag.texas.gov Counsel for Defendant UTA

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of this document was electronically filed and served using the Court’s e-service system on December 1, 2022 and was also served via electronic mail to the following:

Ali Crocker Crocker Russell & Associates 2401 Callender Road, Suite 103 Mansfield, Texas 76063 Office: (817) 482-6570 Fax: (682) 232-1850 alic@cralawfirm.com

/s/ Mary B. Quimby

MARY B. QUIMBY Assistant Attorney General

Automated Certificate of eService This automated certificate of service was created by the efiling system. The filer served this document via email generated by the efiling system on the date and to the persons listed below. The rules governing certificates of service have not changed. Filers must still provide a certificate of service that complies with all applicable rules.

Laura Hendrix on behalf of Mary Quimby Bar No. 24132506 Laura.Hendrix@oag.texas.gov Envelope ID: 70593433 Status as of 12/1/2022 9:02 AM CST

Case Contacts

Name BarNumber Email TimestampSubmitted Status

Ali Crocker ali@cralawfirm.com 12/1/2022 8:46:46 AM SENT

Micala Munoz micala@cralawfirm.com 12/1/2022 8:46:46 AM SENT

Martha Aguilar martha@cralawfirm.com 12/1/2022 8:46:46 AM SENT

Associated Case Party: THEUNIVERSITY OF TEXAS AT ARLINGTON

Name BarNumber Email TimestampSubmitted Status

Laura Hendrix laura.hendrix@oag.texas.gov 12/1/2022 8:46:46 AM SENT

Mary Quimby mary.quimby@oag.texas.gov 12/1/2022 8:46:46 AM SENT

TAB 5:

236-337930-22 FILED TARRANT COUNTY

2/3/2023 9:02 AM

CAUSE NO. 236-337930-22 THOMAS A. WILDER DISTRICT CLERK

JAMES MCMERCHANT, § IN THE DISTRICT COURT §

Plaintiff, § v. § § TARRANT COUNTY, TEXAS THE UNIVERSITY OF TEXAS AT § ARLINGTON. § §

Defendant. § 236TH JUDICIAL DISTRICT

DEFENDANT’S ANSWER TO PLAINTIFF’S FIRST AMENDED PETITION

TO THE HONORABLE JUDGE OF SAID COURT:

NOW COMES Defendant The University of Texas at Arlington (“UTA”) who files this

Original Answer and Request for Disclosure, and would respectfully show the Court as follows:

I.

ORIGINAL ANSWER

Defendant asserts a general denial to the allegations contained in Plaintiff’s Original

Petition and all matters subsequently set up by Plaintiff, as authorized by Rule 92 of the Texas

Rules of Civil Procedure, and demand that Plaintiff prove such allegations by a preponderance of

the evidence as required by law.

II. DEFENSES

In addition to its general denial, Defendant UTA asserts the following defenses:

1. Defendant UTA denies that it violated any of Plaintiff’s rights under Title VII of the Civil

Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq., Chapter 21 of the Texas Labor

Code, or any other law or statute which Plaintiff sues or may be suing.

2. Defendant UTA denies that Plaintiff is entitled to damages, attorney’s fees, interest, or

costs in any amount whatsoever, or to any other relief demanded in Plaintiff’s First

Amended Petition.

3. Defendant UTA asserts, with respect to any alleged material adverse employment action it

took concerning Plaintiff and of which Plaintiff complains in this lawsuit, that it would

have taken the same action or actions regardless of Plaintiff’s alleged protected

characteristics or status or alleged retaliation.

4. Defendant UTA denies that its employees were motivated by any discriminatory or

retaliatory intent of any kind.

5. Defendant UTA asserts that the employment actions, if any, taken regarding Plaintiff were

taken without any discriminatory or retaliatory intent.

6. Defendant UTA asserts that the employment actions, if any, taken regarding Plaintiff

concerning any claim alleged by Plaintiff in this lawsuit were based on a good-faith belief

that such actions were lawful and consistent with agency policy.

7. Defendant UTA asserts that each alleged challenged action of which Plaintiff complains in

this lawsuit was taken for legitimate, non-discriminatory business reasons.

8. Defendant UTA asserts that Plaintiff has failed to mitigate or avoid damages, emotional or

monetary, he claims to have suffered and that none of the alleged damages, if any, are the

result of any discriminatory or retaliatory act by Defendant.

9. Sovereign immunity from suit bars any and all of Plaintiff’s claims to which that

affirmative defense may apply.

10. Sovereign immunity from liability bars Plaintiff’s recovery to such an extent that this

affirmative defense may apply.

11. Defendant UTA asserts its right to any allowable credits or offsets against any judgment in

Plaintiff’s favor.

12. Defendant UTA asserts the affirmative defense of failure to exhaust administrative

remedies for all claims to which it may apply.

13. Any damages Plaintiff may allege are subject to applicable statutory caps or specifically

denied by statute.

14. To the extent that Plaintiff’s claims or filings occurred outside any applicable statutory

periods or were not thoroughly exhausted through any required administrative process, her

claims are barred.

15. Defendant UTA asserts the right to raise additional affirmative defenses that become

apparent throughout the factual development of this case.

III. PRAYER

Defendant requests judgment of the Court that Plaintiff take nothing by this suit and that

Defendant recovers all costs and such other and further relief to which they may be justly entitled.

Respectfully submitted.

KEN PAXTON Attorney General of Texas

BRENT WEBSTER First Assistant Attorney General

GRANT DORFMAN Deputy First Assistant Attorney General

SHAWN COWLES Deputy Attorney General for Civil Litigation

CHRISTOPHER D. HILTON Chief, General Litigation Division

/s/ Mary B. Quimby

MARY B. QUIMBY Attorney in Charge Texas Bar No. 24132506 Assistant Attorney General General Litigation Division P.O. Box 12548 Austin, Texas 78711 (512) 463-2120 – Phone (512) 320-0667 – Fax mary.quimby@oag.texas.gov

ATTORNEY FOR DEFENDANT

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing instrument has been served electronically through the electronic-filing manager in compliance with TRCP 21a on this 3rd day of February, 2023 upon:

Ali Crocker Russell 2401 Callender Road, Suite 103 Mansfield, Texas 76063 ali@cralawfirm.com ATTORNEY FOR PLAINTIFF

/s/ Mary B. Quimby

MARY B. QUIMBY Assistant Attorney General

Automated Certificate of eService This automated certificate of service was created by the efiling system. The filer served this document via email generated by the efiling system on the date and to the persons listed below. The rules governing certificates of service have not changed. Filers must still provide a certificate of service that complies with all applicable rules.

Laura Hendrix on behalf of Mary Quimby Bar No. 24132506 Laura.Hendrix@oag.texas.gov Envelope ID: 72402551 Status as of 2/3/2023 9:06 AM CST

Case Contacts

Name BarNumber Email TimestampSubmitted Status

Ali Crocker ali@cralawfirm.com 2/3/2023 9:02:45 AM SENT

Micala Munoz micala@cralawfirm.com 2/3/2023 9:02:45 AM SENT

Martha Aguilar martha@cralawfirm.com 2/3/2023 9:02:45 AM SENT

Associated Case Party: THEUNIVERSITY OF TEXAS AT ARLINGTON

Name BarNumber Email TimestampSubmitted Status

Laura Hendrix laura.hendrix@oag.texas.gov 2/3/2023 9:02:45 AM SENT

Mary Quimby mary.quimby@oag.texas.gov 2/3/2023 9:02:45 AM SENT

TAB 6:

§ 2000e–3 TITLE 42—THE PUBLIC HEALTH AND WELFARE Page 4958

(Pub. L. 88–352, title VII, § 703, July 2, 1964, 78 training programs, to print or publish or cause Stat. 255; Pub. L. 92–261, § 8(a), (b), Mar. 24, 1972, to be printed or published any notice or adver- 86 Stat. 109; Pub. L. 102–166, title I, §§ 105(a), 106, tisement relating to employment by such an 107(a), 108, Nov. 21, 1991, 105 Stat. 1074–1076.) employer or membership in or any classification or referral for employment by such a labor orga-

REFERENCES IN TEXT

nization, or relating to any classification or re-

The Subversive Activities Control Act of 1950, re- ferral for employment by such an employment ferred to in subsec. (f), is title I (§§ 1–32) of act Sept. 23, agency, or relating to admission to, or employ- 1950, ch. 1024, 64 Stat. 987, which is classified principally ment in, any program established to provide apto subchapter I (§ 781 et seq.) of chapter 23 of Title 50, War and National Defense. For complete classification prenticeship or other training by such a joint of this Act to the Code, see Tables. labor-management committee, indicating any The Controlled Substances Act, referred to in subsec. preference, limitation, specification, or dis- (k)(3), is title II of Pub. L. 91–513, Oct. 27, 1970, 84 Stat. crimination, based on race, color, religion, sex, 1242, which is classified principally to subchapter I or national origin, except that such a notice or (§ 801 et seq.) of chapter 13 of Title 21, Food and Drugs. advertisement may indicate a preference, limi- For complete classification of this Act to the Code, see tation, specification, or discrimination based on Short Title note set out under section 801 of Title 21 religion, sex, or national origin when religion, and Tables.

The Federal Rules of Civil Procedure, referred to in sex, or national origin is a bona fide occupasubsec . (n)(2)(A), are set out in the Appendix to Title 28, tional qualification for employment. Judiciary and Judicial Procedure. (Pub. L. 88–352, title VII, § 704, July 2, 1964, 78 AMENDMENTS Stat. 257; Pub. L. 92–261, § 8(c), Mar. 24, 1972, 86 Stat. 109.)

1991—Subsec. (k). Pub. L. 102–166, § 105(a), added subsec . (k). AMENDMENTS Subsec. (l). Pub. L. 102–166, § 106, added subsec. (l). Subsec. (m). Pub. L. 102–166, § 107(a), added subsec. 1972—Subsec. (a). Pub. L. 92–261, § 8(c)(1), inserted pro- (m). vision making it an unlawful employment practice for Subsec. (n). Pub. L. 102–166, § 108, added subsec. (n). a joint labor-management committee controlling ap- 1972—Subsec. (a)(2). Pub. L. 92–261, § 8(a), inserted ‘‘or prenticeship or other training or retraining, including applicants for employment’’ after ‘‘his employees’’. on-the-job training programs, to discriminate against Subsec. (c)(2). Pub. L. 92–261, § 8(b), inserted ‘‘or appli- the specified individuals. cants for membership’’ after ‘‘membership’’. Subsec. (b). Pub. L. 92–261, § 8(c)(2), inserted provisions making prohibitions applicable to joint labor-

EFFECTIVE DATE OF 1991 AMENDMENT management committees controlling apprenticeship or other training or retraining, including on-the-job train-

Amendment by Pub. L. 102–166 effective Nov. 21, 1991, ing programs, and notices or advertisements of such except as otherwise provided, see section 402 of Pub. L. joint labor-management committees relating to admis- 102–166, set out as a note under section 1981 of this title. sion to, or employment in, any program established to SUBVERSIVE ACTIVITIES CONTROL BOARD provide apprenticeship or other training.

Subversive Activities Control Board established by § 2000e–4. Equal Employment Opportunity Comact Sept. 23, 1950, ch. 1024, § 12, 64 Stat. 977, and ceased mission to operate on June 30, 1973.

(a) Creation; composition; political representa-

§ 2000e–3. Other unlawful employment practices tion; appointment; term; vacancies; Chair- (a) Discrimination for making charges, testi- man and Vice Chairman; duties of Chairman;

fying, assisting, or participating in enforce- appointment of personnel; compensation of ment proceedings personnel It shall be an unlawful employment practice There is hereby created a Commission to be for an employer to discriminate against any of known as the Equal Employment Opportunity his employees or applicants for employment, for Commission, which shall be composed of five an employment agency, or joint labor-manage- members, not more than three of whom shall be ment committee controlling apprenticeship or members of the same political party. Members other training or retraining, including on-the- of the Commission shall be appointed by the job training programs, to discriminate against President by and with the advice and consent of any individual, or for a labor organization to the Senate for a term of five years. Any indidiscriminate against any member thereof or ap- vidual chosen to fill a vacancy shall be applicant for membership, because he has opposed pointed only for the unexpired term of the memany practice made an unlawful employment ber whom he shall succeed, and all members of practice by this subchapter, or because he has the Commission shall continue to serve until made a charge, testified, assisted, or partici- their successors are appointed and qualified, expated in any manner in an investigation, pro- cept that no such member of the Commission ceeding, or hearing under this subchapter. shall continue to serve (1) for more than sixty days when the Congress is in session unless a (b) Printing or publication of notices or adver- nomination to fill such vacancy shall have been tisements indicating prohibited preference, submitted to the Senate, or (2) after the adlimitation , specification, or discrimination; journment sine die of the session of the Senate occupational qualification exception in which such nomination was submitted. The It shall be an unlawful employment practice President shall designate one member to serve for an employer, labor organization, employ- as Chairman of the Commission, and one memment agency, or joint labor-management com- ber to serve as Vice Chairman. The Chairman mittee controlling apprenticeship or other shall be responsible on behalf of the Commission training or retraining, including on-the-job for the administrative operations of the Com-

TAB 7:

§ 2000e–3 TITLE 42—THE PUBLIC HEALTH AND WELFARE Page 4958

(Pub. L. 88–352, title VII, § 703, July 2, 1964, 78 training programs, to print or publish or cause Stat. 255; Pub. L. 92–261, § 8(a), (b), Mar. 24, 1972, to be printed or published any notice or adver- 86 Stat. 109; Pub. L. 102–166, title I, §§ 105(a), 106, tisement relating to employment by such an 107(a), 108, Nov. 21, 1991, 105 Stat. 1074–1076.) employer or membership in or any classification or referral for employment by such a labor orga-

REFERENCES IN TEXT

nization, or relating to any classification or re-

The Subversive Activities Control Act of 1950, re- ferral for employment by such an employment ferred to in subsec. (f), is title I (§§ 1–32) of act Sept. 23, agency, or relating to admission to, or employ- 1950, ch. 1024, 64 Stat. 987, which is classified principally ment in, any program established to provide apto subchapter I (§ 781 et seq.) of chapter 23 of Title 50, War and National Defense. For complete classification prenticeship or other training by such a joint of this Act to the Code, see Tables. labor-management committee, indicating any The Controlled Substances Act, referred to in subsec. preference, limitation, specification, or dis- (k)(3), is title II of Pub. L. 91–513, Oct. 27, 1970, 84 Stat. crimination, based on race, color, religion, sex, 1242, which is classified principally to subchapter I or national origin, except that such a notice or (§ 801 et seq.) of chapter 13 of Title 21, Food and Drugs. advertisement may indicate a preference, limi- For complete classification of this Act to the Code, see tation, specification, or discrimination based on Short Title note set out under section 801 of Title 21 religion, sex, or national origin when religion, and Tables.

The Federal Rules of Civil Procedure, referred to in sex, or national origin is a bona fide occupasubsec . (n)(2)(A), are set out in the Appendix to Title 28, tional qualification for employment. Judiciary and Judicial Procedure. (Pub. L. 88–352, title VII, § 704, July 2, 1964, 78 AMENDMENTS Stat. 257; Pub. L. 92–261, § 8(c), Mar. 24, 1972, 86 Stat. 109.)

1991—Subsec. (k). Pub. L. 102–166, § 105(a), added subsec . (k). AMENDMENTS Subsec. (l). Pub. L. 102–166, § 106, added subsec. (l). Subsec. (m). Pub. L. 102–166, § 107(a), added subsec. 1972—Subsec. (a). Pub. L. 92–261, § 8(c)(1), inserted pro- (m). vision making it an unlawful employment practice for Subsec. (n). Pub. L. 102–166, § 108, added subsec. (n). a joint labor-management committee controlling ap- 1972—Subsec. (a)(2). Pub. L. 92–261, § 8(a), inserted ‘‘or prenticeship or other training or retraining, including applicants for employment’’ after ‘‘his employees’’. on-the-job training programs, to discriminate against Subsec. (c)(2). Pub. L. 92–261, § 8(b), inserted ‘‘or appli- the specified individuals. cants for membership’’ after ‘‘membership’’. Subsec. (b). Pub. L. 92–261, § 8(c)(2), inserted provisions making prohibitions applicable to joint labor-

EFFECTIVE DATE OF 1991 AMENDMENT management committees controlling apprenticeship or other training or retraining, including on-the-job train-

Amendment by Pub. L. 102–166 effective Nov. 21, 1991, ing programs, and notices or advertisements of such except as otherwise provided, see section 402 of Pub. L. joint labor-management committees relating to admis- 102–166, set out as a note under section 1981 of this title. sion to, or employment in, any program established to SUBVERSIVE ACTIVITIES CONTROL BOARD provide apprenticeship or other training.

Subversive Activities Control Board established by § 2000e–4. Equal Employment Opportunity Comact Sept. 23, 1950, ch. 1024, § 12, 64 Stat. 977, and ceased mission to operate on June 30, 1973.

(a) Creation; composition; political representa-

§ 2000e–3. Other unlawful employment practices tion; appointment; term; vacancies; Chair- (a) Discrimination for making charges, testi- man and Vice Chairman; duties of Chairman;

fying, assisting, or participating in enforce- appointment of personnel; compensation of ment proceedings personnel It shall be an unlawful employment practice There is hereby created a Commission to be for an employer to discriminate against any of known as the Equal Employment Opportunity his employees or applicants for employment, for Commission, which shall be composed of five an employment agency, or joint labor-manage- members, not more than three of whom shall be ment committee controlling apprenticeship or members of the same political party. Members other training or retraining, including on-the- of the Commission shall be appointed by the job training programs, to discriminate against President by and with the advice and consent of any individual, or for a labor organization to the Senate for a term of five years. Any indidiscriminate against any member thereof or ap- vidual chosen to fill a vacancy shall be applicant for membership, because he has opposed pointed only for the unexpired term of the memany practice made an unlawful employment ber whom he shall succeed, and all members of practice by this subchapter, or because he has the Commission shall continue to serve until made a charge, testified, assisted, or partici- their successors are appointed and qualified, expated in any manner in an investigation, pro- cept that no such member of the Commission ceeding, or hearing under this subchapter. shall continue to serve (1) for more than sixty days when the Congress is in session unless a (b) Printing or publication of notices or adver- nomination to fill such vacancy shall have been tisements indicating prohibited preference, submitted to the Senate, or (2) after the adlimitation , specification, or discrimination; journment sine die of the session of the Senate occupational qualification exception in which such nomination was submitted. The It shall be an unlawful employment practice President shall designate one member to serve for an employer, labor organization, employ- as Chairman of the Commission, and one memment agency, or joint labor-management com- ber to serve as Vice Chairman. The Chairman mittee controlling apprenticeship or other shall be responsible on behalf of the Commission training or retraining, including on-the-job for the administrative operations of the Com-

TAB 8:

Page 4419 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 2000e–5

effectuate the transfers provided in this Order, includ- tion of this subsection shall be fined not more ing the transfer of funds, records, property, and person- than $1,000 or imprisoned for not more than one nel. year, or both. The Commission shall make its 1–104. This Order shall be effective July 1, 1979. determination on reasonable cause as promptly JIMMY CARTER. as possible and, so far as practicable, not later § 2000e–5. Enforcement provisions than one hundred and twenty days from the filing of the charge or, where applicable under sub-

(a) Power of Commission to prevent unlawful section (c) or (d) of this section, from the date employment practices upon which the Commission is authorized to The Commission is empowered, as hereinafter take action with respect to the charge. provided, to prevent any person from engaging (c) State or local enforcement proceedings; notiin any unlawful employment practice as set fication of State or local authority; time for forth in section 2000e–2 or 2000e–3 of this title. filing charges with Commission; commence- (b) Charges by persons aggrieved or member of ment of proceedings Commission of unlawful employment prac- In the case of an alleged unlawful employment tices by employers, etc.; filing; allegations; practice occurring in a State, or political subnotice to respondent; contents of notice; in- division of a State, which has a State or local vestigation by Commission; contents of law prohibiting the unlawful employment praccharges ; prohibition on disclosure of tice alleged and establishing or authorizing a charges; determination of reasonable cause; State or local authority to grant or seek relief conference, conciliation, and persuasion for from such practice or to institute criminal proelimination of unlawful practices; prohibi- ceedings with respect thereto upon receiving notion on disclosure of informal endeavors to tice thereof, no charge may be filed under subend unlawful practices; use of evidence in section (a) 1 of this section by the person agsubsequent proceedings; penalties for disclo- grieved before the expiration of sixty days after sure of information; time for determination proceedings have been commenced under the of reasonable cause State or local law, unless such proceedings have been earlier terminated, provided that such Whenever a charge is filed by or on behalf of sixty-day period shall be extended to one huna person claiming to be aggrieved, or by a mem- dred and twenty days during the first year after ber of the Commission, alleging that an em- the effective date of such State or local law. If ployer, employment agency, labor organization, any requirement for the commencement of such or joint labor-management committee control- proceedings is imposed by a State or local auling apprenticeship or other training or retrain- thority other than a requirement of the filing of ing, including on-the-job training programs, has a written and signed statement of the facts upon engaged in an unlawful employment practice, which the proceeding is based, the proceeding the Commission shall serve a notice of the shall be deemed to have been commenced for the charge (including the date, place and circum- purposes of this subsection at the time such stances of the alleged unlawful employment statement is sent by registered mail to the appractice ) on such employer, employment agen- propriate State or local authority. cy, labor organization, or joint labor-manage-

(d) State or local enforcement proceedings; notiment committee (hereinafter referred to as the fication of State or local authority; time for ‘‘respondent’’) within ten days, and shall make action on charges by Commission an investigation thereof. Charges shall be in writing under oath or affirmation and shall con- In the case of any charge filed by a member of tain such information and be in such form as the the Commission alleging an unlawful employ- Commission requires. Charges shall not be made ment practice occurring in a State or political public by the Commission. If the Commission subdivision of a State which has a State or local determines after such investigation that there is law prohibiting the practice alleged and estabnot reasonable cause to believe that the charge lishing or authorizing a State or local authority is true, it shall dismiss the charge and promptly to grant or seek relief from such practice or to notify the person claiming to be aggrieved and institute criminal proceedings with respect the respondent of its action. In determining thereto upon receiving notice thereof, the Comwhether reasonable cause exists, the Commis- mission shall, before taking any action with resion shall accord substantial weight to final spect to such charge, notify the appropriate findings and orders made by State or local au- State or local officials and, upon request, afford them a reasonable time, but not less than sixty thorities in proceedings commenced under State days (provided that such sixty-day period shall or local law pursuant to the requirements of be extended to one hundred and twenty days subsections (c) and (d) of this section. If the during the first year after the effective day of Commission determines after such investigation such State or local law), unless a shorter period that there is reasonable cause to believe that is requested, to act under such State or local the charge is true, the Commission shall endeavlaw to remedy the practice alleged.

or to eliminate any such alleged unlawful employment practice by informal methods of con- (e) Time for filing charges; time for service of noference , conciliation, and persuasion. Nothing tice of charge on respondent; filing of charge said or done during and as a part of such infor- by Commission with State or local agency; mal endeavors may be made public by the Com- seniority system mission, its officers or employees, or used as evi- (1) A charge under this section shall be filed dence in a subsequent proceeding without the within one hundred and eighty days after the alwritten consent of the persons concerned. Any person who makes public information in viola- 1 So in original. Probably should be subsection ‘‘(b)’’.

§ 2000e–5 TITLE 42—THE PUBLIC HEALTH AND WELFARE Page 4420

leged unlawful employment practice occurred has been unable to secure from the respondent a and notice of the charge (including the date, conciliation agreement acceptable to the Complace and circumstances of the alleged unlawful mission, the Commission may bring a civil acemployment practice) shall be served upon the tion against any respondent not a government, person against whom such charge is made within governmental agency, or political subdivision ten days thereafter, except that in a case of an named in the charge. In the case of a respondent unlawful employment practice with respect to which is a government, governmental agency, or which the person aggrieved has initially insti- political subdivision, if the Commission has tuted proceedings with a State or local agency been unable to secure from the respondent a with authority to grant or seek relief from such conciliation agreement acceptable to the Compractice or to institute criminal proceedings mission, the Commission shall take no further with respect thereto upon receiving notice action and shall refer the case to the Attorney thereof, such charge shall be filed by or on be- General who may bring a civil action against half of the person aggrieved within three hun- such respondent in the appropriate United dred days after the alleged unlawful employ- States district court. The person or persons agment practice occurred, or within thirty days grieved shall have the right to intervene in a after receiving notice that the State or local civil action brought by the Commission or the agency has terminated the proceedings under Attorney General in a case involving a governthe State or local law, whichever is earlier, and ment, governmental agency, or political subdivia copy of such charge shall be filed by the Com- sion. If a charge filed with the Commission purmission with the State or local agency. suant to subsection (b) of this section, is dis-

(2) For purposes of this section, an unlawful missed by the Commission, or if within one hunemployment practice occurs, with respect to a dred and eighty days from the filing of such seniority system that has been adopted for an charge or the expiration of any period of refintentionally discriminatory purpose in viola- erence under subsection (c) or (d) of this section, tion of this subchapter (whether or not that dis- whichever is later, the Commission has not filed criminatory purpose is apparent on the face of a civil action under this section or the Attorney the seniority provision), when the seniority sys- General has not filed a civil action in a case intem is adopted, when an individual becomes sub- volving a government, governmental agency, or ject to the seniority system, or when a person political subdivision, or the Commission has not aggrieved is injured by the application of the se- entered into a conciliation agreement to which niority system or provision of the system. the person aggrieved is a party, the Commission, (3)(A) For purposes of this section, an unlawful or the Attorney General in a case involving a employment practice occurs, with respect to dis- government, governmental agency, or political crimination in compensation in violation of this subdivision, shall so notify the person aggrieved subchapter, when a discriminatory compensa- and within ninety days after the giving of such tion decision or other practice is adopted, when notice a civil action may be brought against the an individual becomes subject to a discrimina- respondent named in the charge (A) by the pertory compensation decision or other practice, or son claiming to be aggrieved or (B) if such when an individual is affected by application of charge was filed by a member of the Commisa discriminatory compensation decision or other sion, by any person whom the charge alleges was practice, including each time wages, benefits, or aggrieved by the alleged unlawful employment other compensation is paid, resulting in whole practice. Upon application by the complainant or in part from such a decision or other practice. and in such circumstances as the court may (B) In addition to any relief authorized by sec- deem just, the court may appoint an attorney tion 1981a of this title, liability may accrue and for such complainant and may authorize the an aggrieved person may obtain relief as pro- commencement of the action without the payvided in subsection (g)(1), including recovery of ment of fees, costs, or security. Upon timely apback pay for up to two years preceding the filing plication, the court may, in its discretion, perof the charge, where the unlawful employment mit the Commission, or the Attorney General in practices that have occurred during the charge a case involving a government, governmental filing period are similar or related to unlawful agency, or political subdivision, to intervene in employment practices with regard to discrimi- such civil action upon certification that the nation in compensation that occurred outside case is of general public importance. Upon rethe time for filing a charge. quest, the court may, in its discretion, stay further proceedings for not more than sixty days (f) Civil action by Commission, Attorney General, pending the termination of State or local proor person aggrieved; preconditions; proce- ceedings described in subsection (c) or (d) of this dure; appointment of attorney; payment of section or further efforts of the Commission to fees, costs, or security; intervention; stay of obtain voluntary compliance. Federal proceedings; action for appropriate (2) Whenever a charge is filed with the Comtemporary or preliminary relief pending mission and the Commission concludes on the final disposition of charge; jurisdiction and basis of a preliminary investigation that prompt venue of United States courts; designation of judicial action is necessary to carry out the purjudge to hear and determine case; assign- poses of this Act, the Commission, or the Attorment of case for hearing; expedition of case; ney General in a case involving a government, appointment of master governmental agency, or political subdivision, (1) If within thirty days after a charge is filed may bring an action for appropriate temporary with the Commission or within thirty days after or preliminary relief pending final disposition of expiration of any period of reference under sub- such charge. Any temporary restraining order or section (c) or (d) of this section, the Commission other order granting preliminary or temporary

Page 4421 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 2000e–5

relief shall be issued in accordance with rule 65 sonable diligence by the person or persons disof the Federal Rules of Civil Procedure. It shall criminated against shall operate to reduce the be the duty of a court having jurisdiction over back pay otherwise allowable. proceedings under this section to assign cases (2)(A) No order of the court shall require the for hearing at the earliest practicable date and admission or reinstatement of an individual as a to cause such cases to be in every way expe- member of a union, or the hiring, reinstatement, dited. or promotion of an individual as an employee, or (3) Each United States district court and each the payment to him of any back pay, if such in- United States court of a place subject to the ju- dividual was refused admission, suspended, or risdiction of the United States shall have juris- expelled, or was refused employment or advancediction of actions brought under this sub- ment or was suspended or discharged for any chapter. Such an action may be brought in any reason other than discrimination on account of judicial district in the State in which the unlaw- race, color, religion, sex, or national origin or in ful employment practice is alleged to have been violation of section 2000e–3(a) of this title. committed, in the judicial district in which the (B) On a claim in which an individual proves a employment records relevant to such practice violation under section 2000e–2(m) of this title are maintained and administered, or in the judi- and a respondent demonstrates that the recial district in which the aggrieved person would spondent would have taken the same action in have worked but for the alleged unlawful em- the absence of the impermissible motivating ployment practice, but if the respondent is not factor, the court— found within any such district, such an action (i) may grant declaratory relief, injunctive may be brought within the judicial district in relief (except as provided in clause (ii)), and which the respondent has his principal office. attorney’s fees and costs demonstrated to be For purposes of sections 1404 and 1406 of title 28, directly attributable only to the pursuit of a the judicial district in which the respondent has claim under section 2000e–2(m) of this title; his principal office shall in all cases be consid- and ered a district in which the action might have (ii) shall not award damages or issue an been brought. order requiring any admission, reinstatement, (4) It shall be the duty of the chief judge of the hiring, promotion, or payment, described in district (or in his absence, the acting chief subparagraph (A). judge) in which the case is pending immediately (h) Provisions of chapter 6 of title 29 not applicato designate a judge in such district to hear and ble to civil actions for prevention of unlawful determine the case. In the event that no judge practices in the district is available to hear and determine the case, the chief judge of the district, or the The provisions of chapter 6 of title 29 shall not acting chief judge, as the case may be, shall cer- apply with respect to civil actions brought tify this fact to the chief judge of the circuit (or under this section. in his absence, the acting chief judge) who shall (i) Proceedings by Commission to compel complithen designate a district or circuit judge of the ance with judicial orders circuit to hear and determine the case. In any case in which an employer, employ-

(5) It shall be the duty of the judge designated ment agency, or labor organization fails to compursuant to this subsection to assign the case ply with an order of a court issued in a civil acfor hearing at the earliest practicable date and tion brought under this section, the Commission to cause the case to be in every way expedited. may commence proceedings to compel compli- If such judge has not scheduled the case for trial ance with such order. within one hundred and twenty days after issue (j) Appeals

has been joined, that judge may appoint a master pursuant to rule 53 of the Federal Rules of Any civil action brought under this section Civil Procedure. and any proceedings brought under subsection (g) Injunctions; appropriate affirmative action; (i) of this section shall be subject to appeal as equitable relief; accrual of back pay; reduc- provided in sections 1291 and 1292, title 28. tion of back pay; limitations on judicial or- (k) Attorney’s fee; liability of Commission and ders United States for costs (1) If the court finds that the respondent has In any action or proceeding under this subintentionally engaged in or is intentionally en- chapter the court, in its discretion, may allow gaging in an unlawful employment practice the prevailing party, other than the Commission charged in the complaint, the court may enjoin or the United States, a reasonable attorney’s fee the respondent from engaging in such unlawful (including expert fees) as part of the costs, and employment practice, and order such affirma- the Commission and the United States shall be tive action as may be appropriate, which may liable for costs the same as a private person. include, but is not limited to, reinstatement or (Pub. L. 88–352, title VII, § 706, July 2, 1964, 78 hiring of employees, with or without back pay Stat. 259; Pub. L. 92–261, § 4, Mar. 24, 1972, 86 (payable by the employer, employment agency, Stat. 104; Pub. L. 102–166, title I, §§ 107(b), 112, or labor organization, as the case may be, re- 113(b), Nov. 21, 1991, 105 Stat. 1075, 1078, 1079; Pub. sponsible for the unlawful employment prac- L. 111–2, § 3, Jan. 29, 2009, 123 Stat. 5.) tice), or any other equitable relief as the court deems appropriate. Back pay liability shall not REFERENCES IN TEXT accrue from a date more than two years prior to This Act, referred to in subsec. (f)(2), means Pub. L. the filing of a charge with the Commission. In- 88–352, July 2, 1964, 78 Stat. 241, known as the Civil terim earnings or amounts earnable with rea- Rights Act of 1964, which is classified principally to § 2000e–5 TITLE 42—THE PUBLIC HEALTH AND WELFARE Page 4422

subchapters II to IX of this chapter (§ 2000a et seq.). For 2000e–16 of this title and sections 626, 633a, and 794a of complete classification of this Act to the Code, see Title 29, Labor, and enacting provisions set out as Short Title note set out under section 2000a of this title notes under this section and section 2000a of this title], and Tables. and the amendments made by this Act, take effect as Rules 65 and 53 of the Federal Rules of Civil Proce- if enacted on May 28, 2007 and apply to all claims of disdure , referred to in subsec. (f)(2), (5), are set out in the crimination in compensation under title VII of the Appendix to Title 28, Judiciary and Judicial Procedure. Civil Rights Act of 1964 (42 U.S.C. 2000e et seq.), the Age Chapter 6 (§ 101 et seq.) of title 29, referred to in sub- Discrimination in Employment Act of 1967 (29 U.S.C. sec. (h), is a reference to act Mar. 23, 1932, ch. 90, 47 621 et seq.), title I and section 503 of the Americans Stat. 70, popularly known as the Norris-LaGuardia Act. with Disabilities Act of 1990 [42 U.S.C. 12111 et seq., For complete classification of this Act to the Code, see 12203], and sections 501 and 504 of the Rehabilitation Tables. Act of 1973 [29 U.S.C. 791, 794], that are pending on or AMENDMENTS after that date.’’

2009—Subsec. (e)(3). Pub. L. 111–2 added par. (3). EFFECTIVE DATE OF 1991 AMENDMENT 1991—Subsec. (e). Pub. L. 102–166, § 112, designated existing provisions as par. (1) and added par. (2). Amendment by Pub. L. 102–166 effective Nov. 21, 1991, Subsec. (g). Pub. L. 102–166, § 107(b), designated exist- except as otherwise provided, see section 402 of Pub. L. ing provisions as pars. (1) and (2)(A) and added par. 102–166, set out as a note under section 1981 of this title. (2)(B). EFFECTIVE DATE OF 1972 AMENDMENT Subsec. (k). Pub. L. 102–166, § 113(b), inserted ‘‘(including expert fees)’’ after ‘‘attorney’s fee’’. Section 14 of Pub. L. 92–261 provided that: ‘‘The 1972—Subsec. (a). Pub. L. 92–261, § 4(a), added subsec. amendments made by this Act to section 706 of the (a). Former subsec. (a) redesignated (b) and amended Civil Rights Act of 1964 [this section] shall be applicagenerally . ble with respect to charges pending with the Commis-

Subsec. (b). Pub. L. 92–261, § 4(a), redesignated former sion on the date of enactment of this Act [Mar. 24, 1972] subsec. (a) as (b), modified the procedure for the filing and all charges filed thereafter.’’ and consideration of charges by the Commission, subjected to coverage unlawful employment practices of FINDINGS joint labor-management committees controlling ap- Pub. L. 111–2, § 2, Jan. 29, 2009, 123 Stat. 5, provided prenticeship or other training or retraining, including that: ‘‘Congress finds the following: on-the-job training programs, required the Commission ‘‘(1) The Supreme Court in Ledbetter v. Goodyear to accord substantial weight to final findings and or- Tire & Rubber Co., 550 U.S. 618 (2007), significantly ders made by State or local authorities in proceedings impairs statutory protections against discrimination commenced under State or local law in its determina- in compensation that Congress established and that tion of reasonable cause, and inserted provision setting have been bedrock principles of American law for decforth the time period, after charges have been filed, al- ades. The Ledbetter decision undermines those statulowed to the Commission to determine reasonable tory protections by unduly restricting the time pecause . Former subsec. (b) redesignated (c). riod in which victims of discrimination can challenge Subsecs. (c), (d). Pub. L. 92–261, § 4(a), redesignated and recover for discriminatory compensation deciformer subsecs. (b) and (c) as (c) and (d), respectively.

sions or other practices, contrary to the intent of Former subsec. (d) redesignated (e).

Congress.

Subsec. (e). Pub. L. 92–261, § 4(a), redesignated former ‘‘(2) The limitation imposed by the Court on the filsubsec . (d) as (e), extended from ninety to one hundred ing of discriminatory compensation claims ignores and eighty days after the occurrence of the alleged unthe reality of wage discrimination and is at odds with lawful employment practice the time for filing charges the robust application of the civil rights laws that under this section and from two hundred and ten to Congress intended.

three hundred days the time for filing such charges ‘‘(3) With regard to any charge of discrimination where the person aggrieved initially instituted proceedunder any law, nothing in this Act [amending this ings with a State or local agency, and inserted requiresection and section 2000e–16 of this title and sections ment that notice of the charge be served on the re-

626, 633a, and 794a of Title 29, Labor, and enacting spondent within ten days after filing. Former subsec.

provisions set out as notes under this section and sec-

(e) redesignated (f)(1).

Subsec. (f). Pub. L. 92–261, § 4(a), redesignated former tion 2000a of this title] is intended to preclude or subsec. (e) as par. (1), substituted provisions setting limit an aggrieved person’s right to introduce eviforth the procedure for civil actions where the Commis- dence of an unlawful employment practice that has sion was unable to secure from the respondents a con- occurred outside the time for filing a charge of disciliation agreement to prevent further unlawful em- crimination. ployment practices for provisions setting forth the pro- ‘‘(4) Nothing in this Act is intended to change curcedure for civil actions where the Commission was un- rent law treatment of when pension distributions are able to obtain voluntary compliance with this sub- considered paid.’’ chapter and inserted provisions setting forth the proce- APPLICATION TO OTHER LAWS dure for civil action where the respondent is a government , governmental agency, or political subdivision Pub. L. 111–2, § 5(a), (b), Jan. 29, 2009, 123 Stat. 6, proand the Commission could not secure a conciliation vided that: agreement, added par. (2), redesignated former subsec. ‘‘(a) AMERICANS WITH DISABILITIES ACT OF 1990.—The (f) as par. (3), substituted ‘‘aggrieved person’’ for amendments made by section 3 [amending this section] ‘‘plaintiff’’, and added pars. (4) and (5). shall apply to claims of discrimination in compensa-

Subsec. (g). Pub. L. 92–261, § 4(a), inserted provisions tion brought under title I and section 503 of the Ameriwhich authorized the court to order affirmative action cans with Disabilities Act of 1990 (42 U.S.C. 12111 et not limited solely to the enumerated affirmative acts seq., 12203), pursuant to section 107(a) of such Act (42 and such other equitable relief as deemed appropriate, U.S.C. 12117(a)), which adopts the powers, remedies, and and provisions which set forth the accrual date for procedures set forth in section 706 of the Civil Rights back pay. Act of 1964 (42 U.S.C. 2000e–5).

Subsecs. (i), (j). Pub. L. 92–261, § 4(b)(1), (2), sub- ‘‘(b) REHABILITATION ACT OF 1973.—The amendments stituted ‘‘this section’’ for ‘‘subsection (e) of this sec- made by section 3 shall apply to claims of discrimination ’’. tion in compensation brought under sections 501 and 504 of the Rehabilitation Act of 1973 (29 U.S.C. 791, 794), EFFECTIVE DATE OF 2009 AMENDMENT pursuant to—

Pub. L. 111–2, § 6, Jan. 29, 2009, 123 Stat. 7, provided ‘‘(1) sections 501(g) and 504(d) of such Act (29 U.S.C. that: ‘‘This Act [amending this section and section 791(g), 794(d)), respectively, which adopt the standards

Page 4423 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 2000e–6

applied under title I of the Americans with Disabil- case. In the event that no judge in the district ities Act of 1990 [42 U.S.C. 12111 et seq.] for determin- is available to hear and determine the case, the ing whether a violation has occurred in a complaint chief judge of the district, or the acting chief alleging employment discrimination; and judge, as the case may be, shall certify this fact ‘‘(2) paragraphs (1) and (2) of section 505(a) of such Act (29 U.S.C. 794a(a)) (as amended by subsection to the chief judge of the circuit (or in his ab- (c)).’’ sence, the acting chief judge) who shall then designate a district or circuit judge of the cir-

§ 2000e–6. Civil actions by the Attorney General cuit to hear and determine the case.

It shall be the duty of the judge designated (a) Complaint pursuant to this section to assign the case for Whenever the Attorney General has reason- hearing at the earliest practicable date and to able cause to believe that any person or group of cause the case to be in every way expedited. persons is engaged in a pattern or practice of re- (c) Transfer of functions, etc., to Commission; efsistance to the full enjoyment of any of the fective date; prerequisite to transfer; execurights secured by this subchapter, and that the tion of functions by Commission pattern or practice is of such a nature and is intended to deny the full exercise of the rights Effective two years after March 24, 1972, the herein described, the Attorney General may functions of the Attorney General under this bring a civil action in the appropriate district section shall be transferred to the Commission, court of the United States by filing with it a together with such personnel, property, records, complaint (1) signed by him (or in his absence and unexpended balances of appropriations, allothe Acting Attorney General), (2) setting forth cations, and other funds employed, used, held, facts pertaining to such pattern or practice, and available, or to be made available in connection (3) requesting such relief, including an applica- with such functions unless the President subtion for a permanent or temporary injunction, mits, and neither House of Congress vetoes, a rerestraining order or other order against the per- organization plan pursuant to chapter 9 of title son or persons responsible for such pattern or 5, inconsistent with the provisions of this subpractice , as he deems necessary to insure the section. The Commission shall carry out such full enjoyment of the rights herein described. functions in accordance with subsections (d) and (e) of this section.

(b) Jurisdiction; three-judge district court for (d) Transfer of functions, etc., not to affect suits cases of general public importance: hearing, commenced pursuant to this section prior to determination, expedition of action, review date of transfer

by Supreme Court; single judge district court: hearing, determination, expedition of Upon the transfer of functions provided for in action subsection (c) of this section, in all suits commenced pursuant to this section prior to the The district courts of the United States shall date of such transfer, proceedings shall continue have and shall exercise jurisdiction of proceedwithout abatement, all court orders and decrees ings instituted pursuant to this section, and in shall remain in effect, and the Commission shall any such proceeding the Attorney General may be substituted as a party for the United States file with the clerk of such court a request that of America, the Attorney General, or the Acting a court of three judges be convened to hear and Attorney General, as appropriate.

determine the case. Such request by the Attorney General shall be accompanied by a certifi- (e) Investigation and action by Commission purcate that, in his opinion, the case is of general suant to filing of charge of discrimination; public importance. A copy of the certificate and procedure request for a three-judge court shall be imme- Subsequent to March 24, 1972, the Commission diately furnished by such clerk to the chief shall have authority to investigate and act on a judge of the circuit (or in his absence, the pre- charge of a pattern or practice of discriminasiding circuit judge of the circuit) in which the tion, whether filed by or on behalf of a person case is pending. Upon receipt of such request it claiming to be aggrieved or by a member of the shall be the duty of the chief judge of the circuit Commission. All such actions shall be conducted or the presiding circuit judge, as the case may in accordance with the procedures set forth in be, to designate immediately three judges in section 2000e–5 of this title. such circuit, of whom at least one shall be a cir-

(Pub. L. 88–352, title VII, § 707, July 2, 1964, 78 cuit judge and another of whom shall be a dis-

Stat. 261; Pub. L. 92–261, § 5, Mar. 24, 1972, 86 trict judge of the court in which the proceeding Stat. 107.)

was instituted, to hear and determine such case, and it shall be the duty of the judges so des- AMENDMENTS ignated to assign the case for hearing at the ear- 1972—Subsecs. (c) to (e). Pub. L. 92–261 added subsecs. liest practicable date, to participate in the hear- (c) to (e). ing and determination thereof, and to cause the TRANSFER OF FUNCTIONS

case to be in every way expedited. An appeal from the final judgment of such court will lie to Any function of the Equal Employment Opportunity the Supreme Court. Commission concerning initiation of litigation with re-

In the event the Attorney General fails to file spect to State or local government, or political subdivisions under this section, and all necessary functions resuch a request in any such proceeding, it shall lated thereto, including investigation, findings, notice be the duty of the chief judge of the district (or and an opportunity to resolve the matter without conin his absence, the acting chief judge) in which tested litigation, were transferred to the Attorney Genthe case is pending immediately to designate a eral, to be exercised by him in accordance with procejudge in such district to hear and determine the dures consistent with this subchapter, and with the At-

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Automated Certificate of eService This automated certificate of service was created by the efiling system. The filer served this document via email generated by the efiling system on the date and to the persons listed below. The rules governing certificates of service have not changed. Filers must still provide a certificate of service that complies with all applicable rules.

Karel Macias on behalf of Brianna Krominga Bar No. 24103252 karel.macias@oag.texas.gov Envelope ID: 101328393 Filing Code Description: Brief Not Requesting Oral Argument Filing Description: Appellants Corrected Brief wt appx Status as of 5/28/2025 12:45 PM CST

Associated Case Party: JAMES MCMERCHANT

Name BarNumber Email TimestampSubmitted Status

Ali Crocker 24098868 ali@cralawfirm.com 5/28/2025 12:20:42 PM SENT

Associated Case Party: University of Texas at Arlington

Name BarNumber Email TimestampSubmitted Status

karel macias karel.macias@oag.texas.gov 5/28/2025 12:20:42 PM SENT

Brianna Krominga brianna.krominga@oag.texas.gov 5/28/2025 12:20:42 PM SENT