COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

RAUL RIVAS,

 Appellant,

v.

SOUTHWEST KEY PROGRAMS, INC.,

 Appellee. 

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No. 08-14-00010-CV

Appeal from

41st District Court

of El Paso County, Texas

(TC # 2012DCV05932)

O P I N I O N

This wrongful discharge case asks a presumably simple question: when was Raul Rivas 

terminated from his job (or at least when did he know he would be terminated)? Documents 

from the Texas Workforce Commission (TWC) suggest he claimed to have been fired on 

September 19, 2010, which would make his suit untimely. His affidavit submitted in response to 

a motion for summary judgment claims that he was not terminated until September 24, 2010,

which if true, might make his suit timely. The trial court granted summary judgment, 

presumably crediting the TWC file entries. Based on the state of the record, we reverse and 

remand the case.
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FACTUAL SUMMARY

On September 24, 2012, Rivas filed suit against Southwest Key Programs, Inc. 

(Southwest Key) under Section 451.001 of the Texas Labor Code. TEX.LAB.CODE ANN. § 

451.001 (West 2015). The suit maintained that Rivas was hired in January 2003 and at some

time thereafter was injured on the job. Rivas alleges that in connection with this injury, he filed 

and pursued a work injury claim under the Texas Worker’s Compensation Act. He contends that 

because he did so, he was discharged from his employment “and/or discriminated against . . . on 

or about September 24, 2010.” He also alleges that he suffered from a “hostile work 

environment” because of his on the job injury. His pleading is devoid of any specific factual 

allegations explaining the basis for these legal theories, but the absence of specific factual 

allegations was never raised below. 

Southwest Key answered, and shortly thereafter, filed a motion for summary judgment 

contending that the suit was barred by the applicable two-year statute of limitations. Southwest 

Key proved up three documents that it had received from the TWC appearing to indicate that 

Rivas filed a claim for unemployment benefits on September 19, 2010. 

About eight months later, Southwest Key filed an Amended Motion for Summary 

Judgment, also asserting limitations, but this time supported by the file from the TWC which was 

proved up as an official record. That file contains a “Benefits-Initial Claims” report pertaining to 

Rivas which shows a “claim date” of September 19, 2010. Another page contains references to 

four “Fact Finding Statements.” The first is labeled as occurring at 9:05 a.m. on September 21, 

2010 and attributes this statement to Rivas: “I was fired because I was told that I was only to

have 10 children under my supervision. I had 12 children that day and I was told I had not met 
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ratio.” Another fact finding statement attributed to Rivas on October 6, 2010 notes that that there 

was no time lapse between the “incident” and the “discharge.” 

Rivas responded to the amended motion for summary judgment with his own affidavit 

that claimed he was injured on the job on April 4, 2010, and was off work until August 24, 2010. 

Upon his return, he claims he was subjected to a “negative attitude and hard time” because of the 

injury and having filed the claim. He offered no specific details of what this referred to other 

than an assistant director told others not to talk to him and he was denied treatment. He also 

swore: “I was suspended on or about September 19, 2010, pending an investigation. I was not 

fired.” He was called the next day and was told his suspension would be until September 24, and 

“I asked Adriana if I was fired, and I was told no.” On September 24, he showed up for work 

and was told he was fired. “The day of my termination is September 24, 2010 and I am sure 

about it.” Also attached to the response was a payment stub from Liberty Mutual for what 

appear to be payments for worker’s compensation benefits. 

Southwest Key filed various objections to Rivas’ affidavit. We find nothing in the record 

to show those objections were ever ruled upon. The trial court granted the amended motion for 

summary judgment on December 18, 2013. Rivas brings three issues on appeal, all of which 

contend the trial court erred in granting the summary judgment. In various ways, he contends 

there that there is a genuine issue of material of fact as to the accrual date, and when he knew or 

should have known of the termination. 

STANDARD OF REVIEW

The standard of review for a traditional summary judgment under TEX.R.CIV.P. 166a(c)

is well established. Nixon v. Mr. Property Management Company, Inc., 690 S.W.2d 546, 548 

(Tex. 1985). The moving party carries the burden of showing that there is no genuine issue of 

material fact and it is entitled to judgment as a matter of law. Diversicare General Partner, Inc. 
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v. Rubio, 185 S.W.3d 842, 846 (Tex. 2005). Evidence favorable to the non-movant will be taken 

as true in deciding whether there is a disputed issue of material fact. Fort Worth Osteopathic 

Hospital, Inc. v. Reese, 148 S.W.3d 94, 99 (Tex. 2004); Tranter v. Duemling, 129 S.W.3d 257, 

260 (Tex.App.--El Paso 2004, no pet.). All reasonable inferences, including any doubts, must be 

resolved in favor of the non-movant. Reese, 148 S.W.3d at 99. We review the grant or denial of 

a traditional motion for summary judgment de novo. Valence Operating Company v. Dorsett,

164 S.W.3d 656, 661 (Tex. 2005). 

Southwest Key moved for summary judgment on its affirmative defense of limitations

and therefore carried the burden of conclusively establishing that defense. KPMG Peat Marwick 

v. Harrison County Housing Finance Corp., 988 S.W.2d 746, 748 (Tex. 1999); Munoz v. Gulf 

Oil Co., 693 S.W.2d 372, 373 (Tex. 1984). It was required to conclusively prove when Rivas’

cause of action accrued. Id. An issue is conclusively proven if reasonable minds would 

necessarily agree regarding the conclusion to be reached from the evidence. Triton Oil & Gas 

Corp. v. Marine Contractors and Supply, Inc., 644 S.W.2d 443, 446 (Tex. 1982).

ACCRUAL DATE FOR SECTION 451.001 CLAIMS

Rivas asserted he was terminated and subjected to a hostile work environment because he 

exercised his rights to pursue a work related injury claim, all in violation of Section 451.001. A 

wrongful termination claim under Section 451.001 must be filed within two years after the cause 

of action accrues. Johnson & Johnson Medical, Inc. v. Sanchez, 924 S.W.2d 925, 927 (Tex. 

1995)(interpreting predecessor statute). Such a claim accrues when the worker receives

unequivocal notice of the termination or when a reasonable person should have known of the

termination. Id. at 928. 
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A short visit to the facts in Sanchez is instructive. Ms. Sanchez was injured in April 1987

and by November 1987, she was placed on indefinite medical leave with recall rights. Id. She 

contended that over the years, she called and was told several times that no jobs were available. 

Id. Finally in April 1991, she filed a suit asserting a claim for common law fraud and 

discrimination under the predecessor statute to Section 451.001. Id.

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The employer obtained a 

summary judgment on the predecessor Section 451.001 claim based on limitations, contending

that the indefinite medical leave in 1987 was the same as a final termination. Id. at 928. The 

Texas Supreme Court, however, found that the meaning of an indefinite medical leave under the 

company’s policies and collective bargaining agreement was ambiguous. Id. This ambiguity 

created a fact issue as to when the employee received unequivocal notice of termination, or a 

reasonable person would have believed themselves to have been terminated. Id. at 930.

Sanchez preserved an important facet of existing law by reiterating the holding in 

Specialty Retailers, Inc. v. DeMoranville, 933 S.W.2d 490 (Tex. 1996). DeMoranville holds that 

an employment discrimination claim accrues when the discrimination occurs, and not when the 

effects of that discrimination are felt. Id. at 493. In DeMoranville, the plaintiff took a medical 

leave of absence because of stress allegedly caused by a hostile work environment. Id. at 492. 

She was told that she would be fired if the leave lasted longer than a year and approximately one 

year later, the plaintiff was formally terminated. Id. Because the discriminatory employment 

decision occurred with the leave of absence itself, her claim accrued then, and not a year later 

when the formal termination ensued. Id. at 493. DeMoranville looked to Delaware State 

College v. Ricks, 449 U.S. 250, 101 S.Ct. 498, 66 L.Ed.2d 431 (1980) which holds that “the 

 

1 Act of May 7, 1971, 62nd Leg., R.S., ch. 115, §§ 1-3, 1971 TEX.GEN.LAWS 884-85 (repealed 1993)(current 

version at TEX.LAB.CODE ANN. §§ 451.001-.003).
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proper focus is upon the time of the discriminatory acts, not upon the time at which the 

consequences of the acts become most painful.” 449 U.S. at 258, 101 S.Ct. at 504.

But these cases are very fact specific. In Sanchez, the plaintiff avoided summary 

judgment because she was not alleging that the earlier indefinite medical layoff in 1987 was the 

basis of her claim. The discriminatory event was her termination, the actual date of which was in 

dispute. Conversely, the plaintiff in DeMoranville was suing over the decision made a year 

before the termination, and which made the actual termination a mere formality. And in 

Thurman v. Sears, Roebuck & Co., 952 F.2d 128 (5th Cir. 1992) the claim was found time barred 

based on the date that a leave of absence began when other facts, such as the plaintiff filing for 

unemployment compensation, and the testimony of two employer witnesses, indicated that the 

plaintiff was terminated as of a particular date. Id. at 136.

Rivas also asserts a claim for a hostile work environment, a theory endorsed by this court 

in Garcia v. Levi Strauss & Co., 85 S.W.3d 362, 369 (Tex.App.--El Paso 2002, no 

pet.)(recognizing hostile workplace theory under Section 451.001). Under Title VII, a hostilework-environment claim is generally composed of a series of separate acts that collectively 

constitute one “unlawful employment practice.” National R.R. Passenger Corp. v. Morgan, 536 

U.S. 101, 115, 122 S.Ct. 2061, 2073, 153 L.Ed2d 106 (2002). For limitation purposes, it does 

not matter that some of the specific acts creating the hostile work environment fall outside the 

statutory time period, “[p]rovided that an act contributing to the claim occurs within the filing 

period . . . . Morgan, 536 U.S. at 117 (while plaintiff cannot recovery for discrete acts of 

discrimination or retaliation that occur outside the statutory time period, “behavior alleged 

outside the statutory time period, is permissible for the purposes of assessing liability, so long as 

an act contributing to that hostile environment takes place within the statutory time period”); City 
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of El Paso v. Marquez, 380 S.W.3d 335, 343-44 (Tex.App.--El Paso 2012, no pet.)(recognizing 

“continuing violation doctrine” for hostile work environment in National Origin claim); Bartosh 

v. Sam Houston State University, 259 S.W.3d 317, 324 (Tex.App.--Texarkana 2008, pet. 

denied)(recognizing Morgan principle but finding neither of the events occurring within the 

limitation period could be considered harassment); Soto v. El Paso Natural Gas Co., 942 S.W.2d 

671, 677 (Tex.App.--El Paso 1997, writ denied)(acts occurring before 180 day or two year 

limitations period may be considered as evidence in sexual harassment claim, but not as basis for 

legal redress). The termination itself, however, would not qualify as a predicate for the hostile 

work environment claim. Bartosh, 259 S.W.3d at 324.

ANALYSIS

The fact specific nature of the cases in this arena is the nub of the problem here. There is 

almost no factual development of the claims which were pled below. Rivas alleges only that he 

was discharged “and/or discriminated against . . . on or about September 24, 2010” in violation 

of the Texas Labor Code. He appends an affidavit to his summary judgment response 

contending that he was not terminated until September 24, 2010 and had in fact been told the 

opposite prior to that date. It is not even clear to us if the suspension on September 17 is a part 

of his claim in this lawsuit. While Southwest Key introduced contrary evidence about when 

Rivas was terminated, or at least when he knew he would be terminated, the summary judgment 

standard mandates that we must take the non-movant’s evidence as true in deciding whether 

there is a disputed issue of material fact. Reese, 148 S.W.3d at 99; Duemling, 129 S.W.3d at 

260.

We believe this case is controlled by Randall v. Dallas Power & Light Co., 752 S.W.2d 4

(Tex. 1988) that held a trial court could not pick and choose between seemingly conflicting 
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assertions in the summary judgment record. In that case, the plaintiff swore in an affidavit that 

the defendant made a representation about a future event; a later deposition elicited testimony 

from the plaintiff that he could not recall any promises about future events. Id. at 5. The trial 

court granted summary judgment which was affirmed by the court of appeals, based on the 

deposition answer. Id. The Texas Supreme Court reversed, finding that there was a fact issue. 

Id; see also Gaines v. Hamman, 163 Tex. 618, 358 S.W.2d 557, 562 (1962)(“If conflicting 

inferences may be drawn from the deposition and from the affidavit of the same party, a fact 

issue is presented. It is not the purpose of the summary judgment rule to provide either a trial by 

deposition or a trial by affidavit, but rather to provide a method of summarily terminating a case 

when it clearly appears that only a question of law is involved and that there is no genuine issue 

of fact.”); Bastida v. Aznaran, 444 S.W.3d 98, 108 (Tex.App.--Dallas 2014, no pet.)(conflict 

between affidavit and response to request for admission created fact issues); Hunicke v.

Seafarers International Union, No. 14-12-00199-CV, 2013 WL 2444634, at *8-9 (Tex.App.--

Houston [14th Dist.] June 4, 2013, pet. denied)(mem. op.)(affidavit created fact issue by 

contradicted prior statement in response to earlier motion for summary judgment on statute of 

limitations as to when hostile work environment actions took place); Allen v. Roddis Lumber & 

Veneer Co., 796 S.W.2d 758, 760 (Tex.App.--Corpus Christi 1990, writ denied)(contradiction 

between deposition and affidavit about when plaintiff knew of formaldehyde risk created fact 

issue in summary judgment context).

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Some cases coming after Randall have resolved conflicts between affidavits and prior sworn testimony under the 

sham affidavit rule. E.g. Cantu v. Peacher, 53 S.W.3d 5, 10 (Tex.App.--San Antonio 2001, pet. denied); Farroux v. 

Denny's Restaurants, Inc., 962 S.W.2d 108, 111 (Tex.App.--Houston [1st Dist.] 1997, no pet.). This court has also 

applied the sham affidavit doctrine. See Fred Loya Ins. Agency, Inc. v. Cohen, 446 S.W.3d 913, 927 (Tex.App.--

El Paso 2014, pet. denied)(affirming trial court’s finding that particular claim in affidavit contradicted earlier 

deposition testimony on whether term of agreement was definite or indefinite). The doctrine has been applied 

outside of the pure affidavit verse deposition context. Herrera v. CTS Corp., 183 F.Supp.2d 921, 929 (S.D.Tex. 

2002)(plaintiff's affidavit which conflicted with sworn statements in application for Social Security Disability 

Insurance). It has been applied in the specific context of an affidavit attempting to create a fact issue for limitations 
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Thus we are left with an affidavit that appears to conflict with an entry in an official 

record of the TWC. We are perhaps more inclined to apply Randall in this context because the 

TWC record does not contain any sworn statement from Rivas, nor is there a sponsoring witness 

to explain the meaning of all the entries on the record.

Southwest Key also argues that the summary judgment can be sustained based on the 

holding of Specialty Retailers, Inc. v. DeMoranville that the final date for termination does not 

always control the accrual date. It argues that the suspension on September 17, in conjunction 

with the admissions by Rivas in the TWC file, are sufficient to defeat any fact issue. Our 

concern with this reasoning returns back to the sparse record before us, and the affidavit filed by 

Rivas. In the affidavit, he states, “I was suspended on or about September 19, 2010, pending an 

investigation. I was not fired. I was called on September 20, 2010 by Adrian Saenz. I was told 

that my suspension that my suspension [sic] would be until the 24th of September. I asked 

Adriana if I was fired, and I was told no.” It is not clear to us how the suspension itself relates, if 

at all, to the claimed discrimination. There is at least a fact issue on this record as to whether the 

suspension is tied to the termination decision or not. 

The amended motion for summary judgment did not specifically address the hostile work 

environment claim. See Chessher v. Southwestern Bell Telephone Co., 658 S.W.2d 563 (Tex. 

1983)(summary judgment motion must address every claim raised to obtain dismissal of all 

claims). But neither did the Rivas’ response take issue with that omission, and neither party on 

appeal addresses in any significant way the hostile work environment claim. Perhaps this is 

 

purposes in a wrongful discharge suit. Thurman v. Sears, Roebuck & Co., 952 F.2d 128, 136 n.23 (5th Cir. 

1992)(applying sham affidavit rule in dispute over when plaintiff was told he was terminated). But we cannot 

consider its application here because the sham affidavit rule is an attack on the form of the affidavit, and not its 

substance, such that it must be first addressed by the trial court. Hogan v. J. Higgins Trucking, Inc., 197 S.W.3d 

879, 883 (Tex.App.--Dallas 2006, no pet.); Wolfe v. Devon Energy Production Co., LP, 382 S.W.3d 434, 454-53 

(Tex.App.--Waco 2012, pet. denied); David F. Johnson , Joseph P. Regan, The Competency of the Sham Affidavit as 

Summary Judgment Proof in Texas, 40 St. Mary’s L.J. 205, 259 (2008). 
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understandable given that the claim comprises a single sentence in the Original Petition, and as 

noted above, Rivas would be required to prove a distinct action other than the termination, that 

occurred on September 24, 2010, which was part of the hostile work environment claim. 

Morgan, 536 U.S. at 117, 104, 122 S.Ct. at 2068. Inasmuch as we reverse the summary 

judgment on the termination claim, we also reverse as to the hostile work environment claim 

because Southwest Key failed to prove that there was no genuine issue of material fact that no 

event took place on September 24, 2010 germane to the hostile work environment claim. 

Based on the record before us, we sustain Issues One, Two, and Three to the extent that 

there is a genuine issue of material fact on the date of accrual for the termination and hostile 

work environment claim. We reverse and remand for further proceedings.

November 3, 2015

ANN CRAWFORD McCLURE, Chief Justice

Before McClure, C.J., Rodriguez, J., and Chew, C.J. (Senior)

Chew, C.J. (Senior), sitting by assignment