### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

ON MOTION F OR REHEARING

NO. 03-14-00112- CV

Dr. Jam es Jones, Appellant

v. Angelo State Univer sity, Appellee

F ROM TH E DISTRI CT COURT O F TO M GREEN CO UNTY, 340 TH JUDICI AL DISTRICT NO. C-1 1027 2-C, H ONO RAB LE JAY K . WEATH ERB Y , JUDGE P RESIDING

M E M O R A N D U M O P I N I O N

We withdraw the o pinion and judgme nt dated Dec ember 18, 2015, and substitut e the following opinion and judgme nt in their place

. We deny th e p ar t i es’ respe ctive motions for rehe aring

. Appellant Dr. J ames J ones sued his former employ er, Ang elo State University , alleg ing h e h ad been discharg ed from his employ ment due to his relig ious beliefs and prac tices.
See Tex. L ab. Code §§ 21.051, .108. After the trial cour t g rante d summary judgme nt in favor of the University , J ones filed this appea l. I n four issues, J ones contends that t h e t ri al court err ed in
g ranting the University ’s motion for summary judgme nt and dismis s i n g h i s claims of relig ious discrimination. We a ffirm the trial court’s judgme nt with respec t to its dismiss al of J ones’s claimof discriminatory discharg e based on disparate trea tment. Howeve r, beca use we conclude that the trial court err ed to the extent it g rante d summary j u d gm en t on J ones’s claim that the University failed to acc ommo d at e h i s religious prac tice, we will reve rse this portion of the trial court’s judgme nt and re mand the ca se to the trial cour t for fur ther proc eeding s.

BACK GR OUND
I n 2005, J ones was hired as an associate profe ssor in the depar tment of computer

s c ie n c e a t A n g e lo St a

te U n iv e r s it

y . Jo n e s ’ s e mp lo y

me n t w a s c o n s id e r e d a “ te n u r e tr a c k a p p o in tm e n t, ” wher eby J ones’s contra ct for eac h nine-month aca demic y ear could be rene wed. That is, J ones could either be “re appointed” or “non-r eappointed” at the end of eac h y ear . J ones taug ht at the University for f our ac ademic year s beg inning in the 2005–2006 a cade mic y ear .

J ones identifies himself as “an active evang elical Christia n ” and maintains that “it is his relig ious p ra ct i ce t o identify himself as an evang elical Christian and to share his faith with others.” A ccor ding to Jones, during his employ ment with the University , he would eng ag e in t his
prac tice by briefly making a relig ious state ment to his students at the beg inning of the first class of the semester and at the end of the last class of the semester

. Specifica lly , J ones admits that he would introduce himself and, among other things, discuss his family , his i n t er es t s , and his Christian faith

. J o n es would inform his students that “being a Christian was his most defining quality and
state briefly what it means to be a Christian.” Then, on the last day of class, J ones would part way s by writing the words “ric hest of far e” on the blackboa rd and rela te those words to a Bibl e v er se, I saiah 55:2.

2I n Aug ust 2006, followi n g a wr itten complaint from a student conce rning J ones’s

prac tice of making re l i gious statements, the University deter mined that J ones had violated a University rule that g ener ally prohibited the discussion of “contr oversial materia l in the classroom.” 1
Dr. Charles McCamant , then the chair of the depar tment of computer scienc e, spoke with J ones about his relig ious statements in class. McCamant informed J ones that his relig ious s t at ements violated University policy , that they wer e considere d inappropria te, and that he should cea se immediately . Acc ording to J ones, he repe atedly reque sted clar ification from the Univer sity on its policy and on exact l y wh at h e could say and do in the classroom that would confor m with this policy

. Howeve r, J ones contends that the University failed to provide any further ex p l anation or clar ification. J ones continued his prac tice of making relig ious statements at the beg inning and end of ea ch seme ster.

I n No v ember 2006, McCamant conducte d perf ormanc e evalua tions of his fac ulty

me mb e r s , in c lu d in g Jo n e s . A lt h o u g h M c Ca

ma n t n o te d o n Jo n e s ’ s e v a lu a

ti o n f o r m in th e “ c o mm e n ts ” section that J ones had been informed that he was in violation of Uni v er s i ty rules reg arding his relig ious statements in class, McCamant marke d J ones’s perf orm an ce as “satisfa ctory ” and

rec ommended that J ones be rea ppointed for the following aca demic y ear . I n co n formanc e with McCamant’s rec ommendation, J ones was rea ppointed for the upcoming 2007–2008 aca demic y ear . Acc ording to the University , soon afte r hi s November 2006 evalua tion, J ones’s perf ormanc e in the classroom declined and he eng ag ed in behavior t hat demonstrated a lack of colleg iality and disrespec t for University protocol, aside from the issue of his continued prac tice of

We wonder wher e discussion of “contr oversial materia l” is ap p ro p ri ate, if not in a 1 university classroom, but that is not the issue befor e us. 3making relig ious statements. I n Fe bruar y 2008, the subsequent chair of the depar tment, Tim Roden, 2 conducte d J ones’s perf

ormanc e evalua tion based on the prior ac ad em ic y ear . I n this evalua tion, Roden expressed co n cern over what he considere d to be poor student evalua tions and acts of insubordination. R o d en rec ommended that J ones not be rea ppointed for the following aca demic
y ear . Upon revie wing the evalua tion and supporting documentation forwa rded by Roden, on J une 13, 2008, the University president issued to J ones a non-re appointment letter and termination
contra ct fo r t h e 2008–2009 aca demic y ear , meaning that the 2008–2009 aca demic y ear would be Jones’s final y ear

at the Univer sity

. On Dec ember 10, 2008, J ones filed a “complaint of discrimination” with the EEOC and the Texas Workforce Commi ssion and, upon rec eiving a “rig ht to sue” letter, filed suit ag ainst th e U n iv e r s it

y . A mo n g o th e r c la im s , Jo n e s a s s e r te d th a t th e U n iv e r s it

y ’ s a c ti o n s c o n s ti tu

te d r e li g io u s discrimination under the Texas Commi ssion on Human Rights Act, Chapter 21 of the Texas L abor

A c c o r d in g to t

h e U n i v e r s i t y , d i s c u s s i o n s r e g a

r d i n g J o n e s ’ s e mp lo y

me n t c o n ti n

u e d th r o u g h o u t 2 the s pring of 2007 betwee n University Provost, Dr. Donald Coer s, and McCamant. I n September 2007, McCamant stepped down as depar tment chair and was repla ced by Tim Roden. Howeve r, just prior to the relinquishment of his duties, McCamant rec ommended to Coers that J ones be issued a termination contra ct for the 2007–2008 aca demic y ear . Acc ording to the University , “McCama nt was particula

rly conce rned that J ones wanted to buy out his teac hing contra ct and only do rese arc h.” Acting on McCamant’s and Coers’s rec ommendation, University President, Dr. J oseph Rallo, then sent a letter advising J ones that the 2007–2008 aca demic y ear would be his last y ear at the University and that he would not be rea ppointed for the 2008–2009 aca demic y ear . J o n es reque sted that President Rallo rec onsider the decision not to rea ppoint him and told Rallo that he believed that the d e c is io n h a d b e e n b a s e d “ o n d is c r im in a to r y a n d /o r u n la w f u l r e a s o n s . ” Ra ll o a g r e e d to r e v ie w th e f il e , and on J anuar

y 28, 2008, Rallo decide d that the evidenc e was insufficient to support the decision at that time. Consequently , Rallo resc in d ed t h e n o n-re appointment decision and reinstated J ones as a tenur e-tra ck member

of the de partment of c omputer scienc e for the 2008–2009 ac ademic y ear . 4Code (TCHRA). J ones alleg ed that he was repr im an d ed an d u l timately not rea ppointed to his 3 position as a result of his relig ious beliefs, observa nces, and prac tices and that he was trea ted “less favor ably than other fac ulty members beca use of his relig ion and/or relig ious beliefs, observa nces,

a n d p r a c ti c e s . ” I

n a d d it io n , Jo n e s a ls o c la im e d th a t th e U n iv e r s it

y “ f a il e d to r e a s o n a

b ly a c c o mm o d a

te [h is ] r e li g io u s o b s e r

v a n c e s a n d p r a c ti c e s b y c o n c lu d in g th a t [h e ] w a s in v io la

ti o n o f th e [U n iv e r s it

y ’ s ] Rules and Reg ulations, and further , by prohibitin g h i m from ref ere ncing those beliefs, which assisted his students in understanding his perspec tive during classroom discussions.”

The University filed a motion for summary judgme nt. The trial court signe d an order
g ranting the University ’s motion for summary judgme nt without specify ing the g round on which it
g rante d relief

. J ones then pe rfe cted this appe al.

STANDARD OF REVIEW We reviewa trial c ourt’s g rant of summar y judgme nt de novo. Valence Operating
Co. v. Dorsett , 164 S.W .3d 656, 661 (Tex. 2005). I f a trial court g rants summary judgme nt but does
not specify the g rounds for g ranting the motion, we must uphold the judgme nt if any of the g rounds

asser ted in the motion and prese rved for appellate revie w are meritorious

. Provident Life & Acc ident

J ones also filed suit for brea ch of contra ct, for ag e discrimination and reta liation under the 3 TCHRA, for violations of the Texas Religious Fr eedom Restoration Act (RFRA), and for violations of the Texas Constit ution rela ted to relig ious fre e dom. J ones’s RFRA claims and brea ch-of -contra ct claims wer e dismiss ed by the trial court upon its considera tion of the University ’s motion to dismiss

. The rema inder of J ones’s claims wer e dismiss ed by the trial court i n re s ponse to the University ’s motion for summary

judgme nt. I n this appea l, J ones onl y challeng es t he trial court’s dismissal of his relig ious discrimination claims under the TCHRA. As a result, we do not consider the propriety of the trial court’s dismiss al of J ones’s other claims. See Tex. R. App. P. 38.1(f) , (i) (appe llant’s brief must state c oncisely all issues or points presente d for r eview)

.

5Ins. Co. v. Knott , 128 S.W .3d 211, 216 (Tex. 2003). I n revie wing a trial court’s ruling on summary

judgme nt, we take as true all evidenc e favor able to the nonmovant, and we indulge ever y rea sonable infere nce a

nd resolve a ll doubts i n the nonmovant’s fa vor. Id

.

DISCUSSIO N Under section 21.051 of the TCHRA, an employ er commits an unlawful employ ment
prac tice if, beca

use of the employ ee’ s relig ion, the employ er “fa ils or ref uses to hir e an individual, discharg es an individual, or discriminates in a ny other manner ag ainst an individual in connec tion with compe n s ation or the terms, conditions, or privileg es of employ ment.” Tex. L ab. Code § 21.051(1 ). Ad d i t ionally , section 21.108 of the TCHRA provides that an employ er eng ag es in relig ious discrimination if the employ er fails to make rea sonable acc ommodations for the relig ious observa nces of its employ ees. Id

. § 21.108. The Texas L eg islature enac ted the TCHRA, in part, “to
execute the policies of Title VI I of the Civil Rights Acts of 1964 and its subsequent amendments.” Id

. § 21.001(1). Consequently , when analy zing a claim broug ht under the TCHRA, we look not only
to state case s, but also to rele vant fede ral law to the extent the provisions of Title VI I are analog ous. Quantum Chem. Corp. v. Toennies , 47 S.W .3d 473, 476 (Tex. 2001).
Disparate t reat m ent

On appea l, J ones asser

ts tha t the trial court err ed in g ranting summary judgme nt on his claims that his discharg e was impermissibly based on relig ion, see Tex. L ab. Code § 21.051(1), and that the University failed to acc ommodate his relig ious prac tice, s ee i d

. § 21.108. We first consider whether the trial court err ed in g ranting summary judgme nt on J ones’s clai m t h at his discharg e wa s impermissibly based on r elig ion.
6T e xas courts rec og nize two alterna tive methods for proving disc r im in a to r y tr e a tm e n t, such as J ones’s claim of discriminatory discharg e. See Mission Consol. Indep. Sch. Dist. v. Garcia , 372 S.W .3d 629, 634 (Tex. 2012). First, the plaintiff m ay p rove discriminatory intent by direc t evidenc e of what the defe ndant did and said. Id

. “Dire ct ev i d en ce is evidenc e that, if believed,
proves the fac tor of discri m i n at ory animus without infere nce or presumption.” Sandstad v. CB Richard Ellis, Inc

. , 309 F.3d 893, 897 (5th Cir. 2002). Second, and more ty pically , a plaintiff may rely on circ umstantial evidence of discrimination. Garcia , 372 S.W .3d at 634. I n these c ases, we apply the burden- shifting fra mework established by the U.S. Supreme Court in McD onnell Douglas
Co r p
. v
. G r e e n , 4 1 1 U

. S. 7 9 2 ( 1 9 7 3 )

. U n d e r th is f r a me w o r k , d is c r im in a

ti o n is p r e s u

me d if th e p la in

ti f f
meets an initial burden of proving a prima fac ie case of discrimination. Garcia , 372 S.W .3d at 634.

To estab l i s h a prima fac ie case of disparate trea tment based on a discriminatory discharg e, a plaintiff mus t d em o n s t ra t e that (1) he was a member of a protec ted class; (2) he was qualified for

the position he held; (3) he was discharg ed; and (4) he was repla ced by a person who is not a member of the protec ted class, if he was repla ced, or that he was trea ted less favor ably than simil arly situated persons who are not members of the protec ted class. Id. at 636; Chandler v. CSC Applied Techs., LLC , 376 S.W .3d 802, 814 (Tex. App.—Houston [14t h Dist. ] 2 0 1 2 , no pet.). I f

e s ta b li s h e d , th e p r im a f

a c ie c a s e c r e a

te s a r e b u tt a

b le p r e s u mp ti o n o f d is c r im in a

ti o n th a t th e e mp lo y

e r ’ s actions wer e motivated by impermissible fac tors, and the burden shifts to the employ er to articula te

a leg itimate, nondisc riminatory rea son for the employ ment action. Ree ves v. Sanderson Plumbing Prods., Inc. , 530 U.S. 133, 142 (2000); Garcia , 372 S.W .3d at 634.

Her e, the University moved for summary judgme nt on J ones’s d i scriminatory

discharg e claim on the g round that J ones could not provide any direc t proof of discriminatory intent
7and could not establish a prima fac ie case of disparate trea tment. J ones conte nds that he wa s not 4 require d to prese nt any evidenc e with reg ard to t h e protec ted-c lass status of his repla ceme nt or his co-w orker s or with reg ard to any other element of a prima fac ie case under t h e Mc Do n n el l Douglas fra

mework. J ones asser

ts that he, instead, prese nted the trial court with direc t evidenc e of discriminatory

intent. The rec ord befor e us establishes that J ones is an evang elical Christian and that he was asked by the University to stop eng ag ing i n what he considers a relig ious prac tice—shar ing his

re ligious beliefs with others by making relig ious statements in class. On appea l, howeve r, J o n es does not contend that he produce d evidenc e that he was told by the University that he would not be

rea ppointed beca

use he is an evang elical Christian or beca use he holds cer

tai n relig ious beliefs.
I nstead, in support of his arg ument, J ones relies on evidenc e that the decision not to rea ppoint him

as an associate profe ssor was based in part on his failure to comply with the University ’s reque st that he stop making relig ious statements in class. Primarily , J ones cites Dr. Donald Coers’s deposition testimony , in which Coers stated that J ones’s relig ious statements “mig ht have been

. . . one of” the

rea sons for the decision not to rea ppoint and that J ones’s ref usal to stop making relig ious statements in cl as s was a fac tor “in his rec ommendation.” I n response , the University contends that “any instruction by [t he University ] to J ones to ref rain from making relig ious statements in class was not dir ec t ed to his relig ious prac tice, but rathe r direc ted to his prac tice of teac hing.” The University

Alterna tively , the University asser ted that J ones’s claim of discriminatory discharg e fails 4 beca use “the evidenc e conclusively disproves that J on es ’s n o n-re appointment was a prete x t for unlawful discrimination.” Acc ording to the University , it has “alwa y s main t ai ned that J ones was not re ap p o i n t ed beca

use of his poor teac hing evalua tions in the fall of 2007, his ref usal to follow lawful and rea sonable direc tives from his depar tment chair , and his poor depar tmental colleg iality .” 8asser

ts that, conseque ntly , J ones has offe red no direc t evidenc e that the Un i v er s ity ’s decision to discharg e Jones was discriminatory

.

We ag ree that the evidenc e cited by J ones does not constitute direc t evidenc e of discriminatory discharg e to the extent J ones’s discrimination claim is based on disparate trea tment.
I nstead, J ones’s evidenc e demonstrates, at most, that he was u l t i m ately discharg ed for failing to comply with an employ

ment require ment that conflicte d with h i s relig ious prac tice and that as a result, the University , at least potentially , discriminated by failing to acc ommodate his re l i gi o u s
prac tice as it rela tes to his employ ment. See Tex. L ab. C o d e § 2 1 .108. This evidenc e does not direc tly demonstrate that the University ’s decision to discharg e J ones was motivated by the fac t that
J ones hol ds cer

tain relig ious beliefs or e ng ag es, g ener ally , in cer tain relig ious practice s. A claim 5
for d i s p ar ate trea tment arises from the protec ted-c lass status of the plaintiff. See McD onnell Douglas , 411 U.S. at 801-803. The evidenc e cited by J ones is not direc t evidenc e that his protec tedclass s t at u s—as opposed to his ref usal to comply with a condition of his employ ment—was a motivating fac t o r i n the University ’s decision not to rea ppoint him to his fac ulty position. See 6 KIPP, Inc . v. W

hitehead , 446 S.W .3d 99, 107 (Tex. App.—Houston [1st Dist.] 2014, pet. denied)

J ones arg ues t hat t his same evidence also constitutes direc t evidenc e of the University ’s 5 failure to acc ommodate his relig ious prac tice. Howeve r, we express no opinion on whether J ones’s evidenc e was sufficie nt to defe at s ummary judgme nt on his failure -to-ac commodate claim for the rea sons expl ained be low. I n ef fe ct , J ones attempts to rec ast his evidenc e supporting his failure -to-ac commodate 6 claim as direc t evidenc e of a disparate -treatment claim. As we discuss further in this opinion below, employ ers may defe at a failure -to-ac commodate claim by showing that the acc ommodation would im p o s e a n u n d u e b u r d e n o n th e e mp lo y e r . U n d e r Jo n e s ’ s v ie w o f “ d ir e c t e v id e n c e ” o f d is c r im in a to r y intent, ever

y prima fac ie showing of an employ er’ s failure to acc ommodate a relig ious prac tice would nece ssarily constitute direc t evidenc e of disparate trea tment based on a relig ious prac tice. This would effe ctively

eliminate the undue- burden de fense

. 9(“G ener ally , statements that courts have found to constitute direc t e v id ence of d is c r im in a ti o n a r e in s u lt s o r s lu

r s ma d e a g a in s t a p r o te c te d g r o u p . ” ) ; c f. D ix o n v
. H

a ll m a r k , 627 F.3d 849, 855 (11th Cir. 2010) (evide nce that supervisor told plaintiff, “You’ re fired, too. Y ou’re too r elig ious,” was direc t evidenc e of di s p ar at e trea tment based on relig ion). Consequently , to defe at the University ’s
summary judgme nt on his discriminatory -dischar g e claim based on his relig ion as a protec ted class,
J ones was require d to prese nt a prima fac ie case of disparate trea tment. See McD onnell Douglas , 411
U.S. at 792.
J ones arg ues that, even if he did not prese nt direc t evidenc e of discriminatory intent, he prese nted evidenc e sufficie nt to support a prima fac ie case of disparate trea tment. The University moved for summary judgme nt on the g round that J ones could not establish a p ri m a fa ce case of disparate trea tment beca

use he could not prese nt sufficie nt evidenc e of one element—“ that he was repla ced by someone outside his protec ted class or trea ted less favor ably than simil arly situated coworke rs outside his pr otected class.” J ones asser ts tha t the trial court err ed to the extent it g rante d
summary judgme n t o n this g round beca use, acc ording to J ones, he prese nted summary -judg ment evidenc e sufficie nt to demonstrate that his co-w o rk er s were not members of his protec ted g roup and we re tre ated more favor ably

.

I n support of his arg ument, J ones does not asser t that he prese nted the trial court with evidenc e that h i s co -w orker s wer e not also Christians. I nstead, J ones relies on his own aff idavit,
in which he testifies that his four co-w orker s “neve r evidenc ed an active evang elical Ch ri stian

core belief to share their faith with others.” J ones’s arg ument assumes, without any su pport, that Christians who share his particula r evang elical beliefs ar e considere d to be a “prote cted class,”

10separ ate and apar t f rom Christians in ge nera l. I n any event, we need not de cide this issue beca use evidenc e that J ones had no rea son to believe that his co-w orker s share d his same religious beliefs is not evidenc e that they , in fac t, did not. See Michae l v. City of Dallas , 314 S.W .3d 687, 692 (Tex. App.—Dallas 2010, no pet.) (explain i n g that plaintiff cannot establish prima fac ie case of employ ment discrimination throug h conclusory alleg ations or s u b j ec t i v e beliefs and fee lings). I n addition, J ones presented no evidenc e that the person who repla ced him did not also share his relig ious b el i ef

s . See Garcia , 372 S.W .3d at 636. Be cause there is no evidenc e that J ones was repla ced by a person who is not a member of his same protec ted class or that his co-wor

kers, who he contends wer e trea

ted more favor ably , wer e not also mem b er s o f t h e same protec ted class, he failed to meet this burden. See id. ; see also Chandler , 376 S.W .3d at 814

. C o n s eq u en t l y , the trial court did not err to the extent it g rante d summary judgme nt on J ones’s claim of discriminatory discharg e base d on disparate trea tment.

F ailure to acc om m odate

Next, we consi d er J o n es ’s arg ument that the trial court err ed in g ranting summary j u dg ment on J ones’s claim that the University discriminated ag ainst him beca use it fa i l ed t o

rea sonably

acc ommodate his relig ious practice

. See Tex. L ab. Code § 21.108. Claims of relig ious discrimination ba sed on a failure to acc ommodate ar e ana ly zed under a burden- shifting fra mework. Davis v. Fort Bend County , 765 F.3d 480, 486 (5th Cir. 2014). An employ ee satisfies his initial burden by showing that: (1) he ha s a bona fide religious belief or
prac tice that conflicts with an employ ment require ment; (2) he informed the employ er of this belief or practice; an d (3 ) h e suffe red an adver se consequence for failing to comply with the conflicting

11employ

ment require ment. Tagore v. United States , 735 F.3d 324, 328 (5th Cir. 2013); Grant v. Joe Mey ers T oyota, Inc. , 11 S.W .3d 419, 422-23 (Tex

. App.—Houston [14t h Dist.] 2000, no pet.). I f
t h e p l ai ntiff succe eds in meeting this burden, the burden shifts to the employ er to show that i t could not acc ommodate the plaintiff’ s relig ious belief or prac tice without undue hardship. Grant , 11 S.W .3d at 423.

On appea l, the University does not contend that J ones failed to p re s en t evidence sufficie nt to demonstrate a prima fac ie case of failure to acc ommodate. I nst ead, the University
arg ues that J ones cannot rely on a failure -to-ac commodate theory to arg ue that the trial court

err ed in dismiss ing J ones’s TCHRA claims for two rea sons. First, the University arg ues that J ones failed to timely

prese nt his failure -to-ac commodate claim to the Tex as W orkfor ce Comm ission, a jurisdictional prer equisite to filing suit. Second, the University arg ues that, even if the claim is not jurisdictionally barr ed, the University ’s reque st that J ones ref rain from making relig ious statements in his classes cannot serve as the basis for a failure -to-ac commodate claim as a matter of law. We will first consider the U niversity ’s jurisdictional arg ument.

Under the TCHRA, an employ ee must file his char g e alleg ing discriminat i o n with the Texas Workforce Commi ssion within 180 day s of the alleg ed discrimin at o ry conduct. Tex.
L ab. Code § 21.201(a)

. The timely filing of the complaint is mandatory , and when the defe ndant is
a g overnme ntal entity , the failure t o timely file i s a jurisdi ctional bar to suit. Prairie View A & M
Univ. v. Chatha , 381 S .W.3d 500, 514 (Tex. 2012). The University points out that J ones first
contac ted the Commi ssion on Dec ember 10, 2008, and there fore he is barr ed from rec overing for any alleg ed discriminatory actions that occur red prior to J une 13, 2008. Acc ording to the Uni v ersity ,

12J ones’s failure -to-ac commodate claim is ba sed on alleg ations that the University failed to r espond

to reque sts for acc ommoda t i o n m ad e b efore and during 2007 and, as a result, the claim is now jurisdictionally

barr ed. Under the TCHRA, the 180-day period for filing a complaint with the Commi ssion beg ins to run “whe n the employ ee is info rm ed o f the alleg edly discriminatory employ ment decision,” not at some later date when the decision comes to fruition or when the employ ee discovers his employ er’ s discriminatory motive. Id. at 500. “This is beca use it is the discriminatory employ ment decision that is made with discriminatory intent.” Id

. To preva il on a claim of relig ious discrimination based on an employ er’ s failure to acc ommodate a relig ious prac t i ce , h o we ver, a plaintiff must demonstrate that he “suff ere d an adver se conseque nce for failure to c omply with the conflicting employ

ment require ment.” See Grant , 11 S.W .3d at 422-23. Thus, in this ty pe of case , the discriminatory

act ( trig g ering the 180-da y deadline) occur s not when an e mploy ee is infor med that he is expected to comply with a require ment that co n fl i cts with his relig ious prac tice, but when the employ ee is info rm ed o f an adver se employ ment decision made as a conseque nce of his failure to c omply

.

Her e, the summary -judg ment rec ord demonstrates that J ones was informed that the University believed that his relig ious prac tice conflicte d with University policy beg inning in 2007.
Howeve r, there is no evidenc e that the University informed J ones that he would be terminated if he failed to comply , decide d to terminate J ones, or otherwise took any adver se action ag ainst J ones at that time. I n fac t, the University did not discharg e J ones unt il J une 13, 2008, when he wa s s en t a letter by the President of the University , informing him of his non-re appointment for the 2009–2010

13aca demic y ear . J ones timely filed his complaint 180 day s later, and conseque ntly the trial court had

jurisdiction to consider the cla im. 7

Having reje cted the University ’s arg ument that the trial cour t lacked jur isdiction to consider J ones’s relig ious-discrimination claim based on an alleg ed failure to acc omm o d at e his relig ious prac tice, we consider whether the trial court err ed in g ranting summary judgme nt in favor

The University cites sever al fede ral case s conce rning what it char acte rizes as “ana logous 7 failure -to-acco m m o d at e claims” for the proposition that the denial of a reque st for an acc ommodation is a “discre te discriminatory act” that trig g ers the filing deadline. See Tobin v. Liberty Mut. Ins. Co. , 553 F.3d 121, 130 (1st Cir. 2009) (explaining that statute of limit ations beg ins to run on employ ee’ s failure -to-ac commodate- disability claim when reque st for acc ommodation is denied beca

use “such a denial is a discrete discriminatory act that, like a t er m i n ation, a ref usal to transfe r, or a failure to promote, does not require repe ated conduct to establish an actionable claim”) ; Hende rson v. Ford Motor Co. , 403 F.3d 1026, 1032-33 (8th Cir. 2005) (conc luding that failure -toacc ommodate-disability claim was time barr ed beca use last ref

usal to offe r the employ ee “a job she reque sted” wa s outside of l imitations period); Elmenay er v. AB F Freight Sys., Inc

. , 318 F.3d 130, 135 (2d Cir. 2003) (filing period on failure -t o -accommodate claim beg an to run when employ er informed employ ee that his reque sted relig ious acc ommodation was reje cted and not from last time employ ee was preve nted from observing relig ious prac tice). We do not ag ree that these cases are deter minative in this di spute.
T h e case s cited by the University arise from complaints that the employ ee reque sted a specific acc ommodation from a condition of h i s em p l o y ment, the reque st was denied by his employ er, and the employ ee co mplied with the condition of his employ ment without acc ommodation. I n contra st, here , J ones reque sted an unspecifie d acc ommodation from the University ’s rule reg arding “contr oversial materia l” in the classroom, the University failed to respond t o h i s reque st, and J ones continued to eng ag e in his “re ligious prac tice” until he was eventua lly notified of his termination more than a y ea r later. I n other words, J ones’s failure -toacc ommodate claim is not based on alleg ations t h at t h e University denied his reque st for an acc ommodation and that he suffere d an adverse conseque nce a s a re sult of having to comply with the University ’s rule. We ag ree that such a claim, to the extent i t ex i s t s , wo u ld be time barr ed. J ones’s failure -to-ac commodate claim, howeve r, is based on alleg ations that J ones was terminated for failing to comply with the University ’s rule. See Tagore v. United States , 735 F.3d 324, 329 (5th Cir. 2013). This is a discrete employ ment decision that is independe ntly actionable , and as we have explained, J o n es t imely filed hi s complaint reg arding that decision. See Nati onal R.R. Pass enger Corp. v. Morgan , 536 US 101, 113 (2002) (ruling that “ea ch discrete discriminatory act starts a new clock f or filing char g es alleg ing tha t act”)

. 14of the University on this claim. To move for summ ar y j u d gm ent on the g round that there is no

evidenc e to support a clai m , t h e m o v an t is require d “to state the elements to which there is

no evidenc e.” Tex. R. Civ. P. 166a(i). The rules of civil proce dure do n o t authorize conclusory motions or g ener al no-evide nce challeng es to an opponent’s case
. Timpte Indus., Inc. v. Gi s h , 286 S.W .3d 306, 310 (Tex. 2009).

I n its motion for summary judgme nt, the University did not specific ally ref ere nce J ones’s failure -to-ac commodate claim or i d en t i fy any elements of a prima fac ie case , only that
“Jones cannot make out hi s d i s cr i mination and/or reta liation claims (ag e and relig ion)” and that “he prese nts no evidenc e that he ever complained [of] relig ious discri mination prior to his nonrea ppointment.” Upon revie w of the University ’ s moti o n , we co nclude that the substance of the motio n establishes that the University did not move for summary judgme nt on J ones’s failure -toacc ommodate claim on the g round that there was leg ally insufficient evidenc e to support the claim.

I n its appellate brief, the University does not c ontend that the trial court’s summary judgme nt was proper on J ones’s failure -to-ac commodate claim on the g round that J ones failed to
prese nt leg ally sufficie nt evidenc e of a prima fac ie case . I nstead, the University arg ues that (1) there is no evidenc e that the University ever asked J o n es t o refrain from making relig ious statements

exc ept during instruction periods and (2) this admonishment cannot serve as the basis for J ones’s failure -to-ac commodate claim b ec au s e to allow J ones to continue making such statements would have put the University at risk for a claim of a violation of the Establishment Clause. I n eff ect, the University arg ues that the risk of an Establishment Clause violation p o s ed an undue burden on the University , such that it could not acc ommodate J on es ’s re l i gi o us prac tice as a matter of law.

15The University did not, howeve r, asser t in its motion for summary j u d g ment that it could not

acc ommodate J ones’s relig ious prac tice without undue hardship, an issue that it woul d h av e had the burde n to establish. See Tex. L ab. Code § 21.108.

“I t is well settled that a trial court cannot g rant a summary judgme nt mo t i on on
g rounds not prese nted in the motion.” Timpte I ndus. , 286 S.W .3d at 310. B eca use the Unive rsity did not move for summary judgme nt, traditional or no-evide nce, on J ones’s claim that the University failed to ac co m m o d at e his relig ious prac tice under section 21.108 of the TCHRA, the trial court

err ed to the extent it gra

nted summary

judgme nt on this claim.

CONCLUSION
We aff irm the trial court’s judgme nt with respe ct to J o n es ’s claim of disparate
trea tment. Be cause the trial court err ed to the extent it g rante d su m m ar y j u d g ment on J ones’s failure -to-ac commodate claim, we reve rse this portion of the trial court’s judgme nt and rema nd the

case to the trial court f

or fur ther proc eeding s.

__________________________________________

Scott K. Field, Just ice
Be fore Chief J ustice Rose, Jus tices Goodwin a nd Field
Affir med in part; Rever sed and Rema nded in par

t on Motion for Rehear ing Filed: June 10, 2016

16