* Pursuant to 5 T H C IR

. R. 47.5, the court has determined th a t

this opinion should not be published and is not precedent except

under the limited circumstances set forth in 5 TH C IR

. R. 47.5.4.

1 See S&W Enters., L.L.C. v. SouthTrust Bank of Ala., NA

, 315

F.3d 533, 537-38 (5th Cir. 2003)(“Summary judgment must be affirmed

if it is sustainable on any legal ground in the record,

. . . . and

it may be affirmed on grounds stated or not stated by the district

court.”)(cites omitted). United States Court of Appeals

Fifth Circuit



## FILED

February 6, 2004

Charles R. Fulbruge III

Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 03-20663

_____________________

OLIVER MANUEL,

Plaintiff - Appellant,

versus

SANDERSON FARMS INC., Processing Division

Defendant - Appellee.

---------------------

Appeal from the United States District Court

for the Southern District of Texas, Houston Division

(No. 02-CV-4837)

---------------------

BEFORE HIGGINBOTHAM, SMITH, and WIENER Circuit Judges.

PER CURIAM: *

Plaintiff–Appellant Oliver Manuel appeals the district court’s

grant of summary judgme nt in favor of his former employer,

Defendant-Appellee Sanderson Farms, Inc. (“Sanderson Farms”),

d ismissing his Texas state law racial discrimination claims. We

affirm, albeit for different reasons. 1

I. FACTS AND PROCEEDINGS2 T EX

. L ABOR C ODE A NN

. § 21.001, et seq. (Vernon 1996).

2 Manuel filed suit in the County Court of Law No. 2 of Brazos

County, Texas against Sanderson Farms, alleging discriminatory

discharge and hostile work environment claims under the Texas

Commission on Human Rights Act (“TCHRA”). 2 Sanderson Farms had

hired Manuel in April 2000 as one of three superintendents at its

poultry processing plant in Bryan, Texas. Each superintendent was

in charge of one of the plant’s thr ee shifts. Manuel, a black

male, was hired as superintendent of the second shift. Brian Otto

and Ed Cammack, both white males, were superintendents of the first

and third shifts, respectively.

The second shift operated from 6:00 p.m. to 2:30 a.m., but

Manuel would occasionally leave his shift early. On July 10, 2001,

Manuel’s supervisor, David Jarrett, instructed Manuel t hat, from

that day on, he would be required to stay until the second shift

had ended. (Although Jarrett did not give similar instructions to

Otto and Cammack, neither does Manuel contest the record evidence

that Otto and Cammack had no history of e arly departure.) The

following week, Jarrett arrived at the plant around midnight and

discovered that Manuel had left. Jarrett promptly recommended to

Sanders on Farms’ Division Manager, Eric Erickson, that Manuel’s

employm ent be terminated because of his poor performance and his

failure to follow Jarrett’s directive that he remain at work until

the end of his shift. Erickson agreed with Jarrett’s3 Neither side disputes that the date Manuel was unequivocally

informed that his employment at Sanderson Far ms would be

terminated, and not the da te of his actual termination, triggers

the 180 day time limit for fi ling his complaint with the Texas

Commission on Human Rights. S ee T EXAS L ABO R C ODE A NN

. § 21.202

(Vernon 1996); see also Specialty Retailers, Inc. v. DeMoranville,

933 S.W.2d 490, 492-93 (Tex. 1996)(“[t]he limitations period begins

when the employee is informed of the allegedly discriminatory

employme nt decision, not when that decision comes to

fruition”)(ci ting D elaware State College v. Ricks

, 449 U.S. 250,

258 (1980)).

4 The EEOC issued Manuel a right to sue letter on October 7,

2002.

5 T EX

. L ABOR C ODE A NN

. § 21 .254 (Vernon 1996)(“Within 60 days

a fter the date the right to file a civil action is receive d, the

complainant may bring a civil action against the respondent.”).

3 recommendation and, on July 19, 2001, informed Manuel that his

employment at Sanderson Farms would be terminated. 3

On February 20, 2002, more than 200 days after being informed

of his discharge, Manuel filed a charge of discrimination with the

Texas Commission on Human Rights (“the Commission”) and with the

EEOC. The Commission issued Manuel a right to sue letter on

September 26, 2002. 4 Manuel filed suit in state court within 60

days after receiving the Commission’s letter, as required by Texas

Labor Code Annotated section 21.254. 5 His complaint asserted only

state law causes of action.

Sanderson Farms removed the case to federal court on the basis

of diversity, and, following an expedited discovery schedule, moved

for summary judgment on Manuel’s claims. The district court

granted Sanderson Farms’s motion in June 2003. In its stated

reasons, the court said that it found Manuel’s claims time-barred6 See Con serv Ltd. Liability Corp. v. Southwestern Bell

Telephone Co. , 350 F.3d 482, 486 (5th Cir. 2003)(cites omitted).

7 See 42 U.S.C.S. § 2000e-5(e)(Supp. 2003).

8 See id.

4 under federal law, and, alternatively, that he had failed to

establish gen uine issues of material fact with regards to the

merits of both his hostile work environment a nd discriminatory

discharge claims. Manuel timely appealed.

II. ANALYSIS

A. Standard of Review

We review de novo a grant of summary judgment. 6

B. Time Bar

The district court held Manuel’s claims to be time-barred

under 42 U.S.C.S. § 2000e-5(e), because Manuel did not file suit

within 30 days following receipt of his right to sue letter from

the Commission. 7 Section 2000e-5(e) provides, in pertinent part

,

that an aggrieved party who has filed a charge of discrimination

with a state or local agency, such as the Commission, has until the

earlier of 300 days after the date of the alleged unlawful

employment practice, or 30 days after the date on which he receives

notice that the state agency has terminated its proceedings in

which to file an EEOC charg e. 8 As Manuel correctly points out,

the district court erred in applying section 2000e-5(e), both

because that provision controls the time for filing an EEOC charge9 See T EX

. L ABOR C ODE A NN

. § 21.202 (Vernon 1996). Section 21.202

provides:

(a) A complaint under this subchapter must be filed not later

than the 180th day after the date the alleged unlawful

employment practice occurred.

(b) The commission shall dismiss an untimely complaint.

Id.

10 Specialty Retailers, Inc. v. DeMoranville , 933 S.W.2d 490,

492 (Tex. 1996); see also Texas Parks & Wildlife Dept. v. Dearing

,

– S.W.3d —, 2004 WL 35543, at *4 (Tex. App.

- Austin 2004, no pet.

h.)(“[a] complaint with the Commission must be filed no later than

180 days after the alleged unlawful employment practice occurred”);

Cooper-Day v. RME Petroleum Co. , 121 S.W.3d 78, 83 (Tex. App. -

Fort Worth 2003, pet. filed)(“[f]ailure to timely file an

administrative complaint [under Section 21.202] deprives Texas

trial courts of subject matter jurisdiction”).

5 and not t he time for filing suit, and because the TCHRA, rather

than federal law, controls whether his claims were timely filed.

Sanderson Farms concedes that the district court erre d in

applying § 2 000e-5(e) but argues that Manuel’s claims are timebarred nevertheless under the applicable limitations provision,

section 21.202 of the TCHRA. That section requires a complainant

to file a charge of discrimination with the Commission within 180

days following the date on which the alleged unlawful employment

practice occurr ed, and directs the Commission to dismiss a latefiled complaint as untimely. 9 The Texas Supreme Court has held

that “[t]his time limit is mandatory and jurisd i ctional.” 10

Sanderson Farms argues that, because Manuel waited until February

20, 2002

– well over 180 days after the date on whi ch he was

informed of his termination

– to file his complaint with the

Commission, his claims are time-barred under section 21.202.11 964 S.W.2d 656 (Tex. App.

- Corpus C hristi 1997, pet.

withdrawn).

12 See id. at 664 (“[w] e hold . . . that the jury could have

rationally inferred that Huerta’s complaint was timely filed from

the Commission’s action in sending him a ‘notice of right to file

civil action’ letter rather than dismissing his complaint pursuant

to 21.202 of the Labor Code”).

13 Guevara v. H.E. Butt Grocery Co.

, 82 S.W.3d 550 (Tex. App.

-San Antonio 2002, pet. denied); see also Subaru of America, Inc.

v. David McDavid Nissan, Inc. , 84 S.W.3d 212, 220 (Tex.

2002)(“[c]ourts will not imply additional authority to

[administrative] agencies, nor may agencies create for themselves

any excess powers”).

6 M anuel responds, relying on a state intermediate appellate

court case, Gorges Foodservice, Inc. v. Huerta

, 11 that his receipt

of the Commission’s right to sue letter creates a presumption that

his complaint was filed timely. His reliance is misplaced: G orges

held only that, in the absence of any evidence to the contrary, a

jury could infer from the plaintiff’s receipt of the Commission’s

right to sue letter that his complaint was timely; 12 it did not hold

that issuance of a right to sue letter creates a “presumption” of

timeliness. Additionally, at least one Texas appellate court that

addressed this precise point held that issuance of a right to sue

l etter from the Commission cannot confer subject matter

jurisdiction over a plaintiff’s complaint when the plaintiff has

failed to file his charge with the Commission within 180 days after

the alleged adverse employment action, as required by section

21.202. 13 Because it is undisputed that Manuel did not file his

charge with the Commission until more than 180 days had elapsed14 See Jones v. Grinn ell Corp. , 235 F.3d 972, 974 (5th Cir.

2001)(“[i]f a complainant fails to exhaust his state administrative

remedies, the Texas Human Rights Act jurisdictionally bars this

court from hearing the case regardless of equitable and policy

concerns”)(cites omitted).

7 following the alleged act of employment discrimination, his claims

are time-barred under the TCHRA. As such, the district court

lacked subject matter jurisdiction over his action. 14

III. CONCLUSION

We affirm the district court’s grant of summary judgment.

Because we hold that Manuel’s claims were time-barred, and affirm

t he dismissal of his action with prejudice on that ground, we do

not reach the merits of his case.

AFFIRMED.