### 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

NO. 03-10-00710- CV

The University of T exas-P an Am eric an and The University of T exas System , Appellan ts

v. How ard Miller, Appellee

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 53RD J UDICIAL DI STRICT NO. D-1 -GN-0 9-0 0254 1, H ONO RAB LE JO HN K. DIETZ, JUDGE PRESI DING

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

I n this interlocutory appea l, the University of Texas-Pan Americ an (UTPA) and the University of Texas Sy stem (UT Sy stem) complain of the district court’s denial of their plea to the jurisdiction. Appellee Howar d Miller sued UTPA, his former emp l o y er , and the UT Sy stem pursuant to the Texas Commi ssion on Human Rights Act (TCHRA) alleg ing that he was subjected 1

to a hostile work environment and disparate trea tment in the form of ag e, disability , color, and rac e discrimination. See Tex. L ab. Code § 21.051. Miller fu rt h er alleg ed that he was wrong fully discharg ed i n retaliation for opposing discriminatory prac tices and repor ting misappropriation of funds by the president and vice presiden t o f UT P A. See id. § 21.055. On appea l, UTPA and the UT Sy stem contend that the district c ourt err ed in deny ing the ir plea to the j urisdiction as to all of Miller’s claims ag ainst the UT Sy stem beca use the UT Sy stem was not Miller’s employ er under the

See ge nerallyTex. L ab. Code §§ 21.001–.556. 1TCHRA, see id. § 21. 0 0 2 (8 ), and beca use Mi ller failed to exhaust his administrative remedies by
not naming the UT Sy stem in his char g e of discrimination. See id. § § 2 1

. 2 0 1 , . 254. Appellants further contend that the district court err ed in denying their plea to the jurisd i ct i o n as to Miller’s hostile work environment claims ag ains t both UTPA and the UT Sy stem beca use Miller failed to al l eg e facts s ufficie nt to establish jurisdiction over such a claim. For the reasons that follow, we 2

reve rse the district court’s denial of the plea to the juris d i ct ion as to Miller’s hostile work environment claim an d d i s m i s s that claim for lack of jurisdiction. We aff irm the district court’s denial of the plea to the jurisdiction in all other re spects.

F ACTUAL AND P ROCEDURAL BACK GR OUND Miller was hired as the chief of police for UTPA in 1992. The UT Sy stem authorized Miller’s employ

ment at UTPA, he was subject to the rules, regulations, and policies of the UT S y stem, and he served a t the pleasure of the UTPA president and under the supervision of t he UTPA vice president for business aff airs. As a require ment of his position, Miller was to maintain

a Texas peac e office r license in g ood standing with the Texas Commi ssion of L aw E n fo rc em ent Offic e Standards and Education (TCL EOSE). See Tex. Oc c. Code §§ 1701.301, .307. TCL EOSE standards include the require ment that a licensee demonstrate wea pon s proficie ncy to obtain and maintain a license

. See id. §§1701.307, .308, .355.

M il le r was commissioned as a peac e office r throug h appointment with th e U T Sy s te m Offic e of Depa

rtment of Police (ODO P), which was under the direc tion of J ohn Slettebo, the direc tor

T he plea to the jurisdiction did not challeng e the trial court’s jurisdiction over Miller’s 2 reta liatory

discharg e cla im as to UTPA, and it is not a part of this appea l. 2of police of the UT Sy stem. See 37 Tex. Admin. Code § 211.1 (Tex. Comm’n on L aw Enforc ement

Offic er Standards and Educ.; Def initions ); Tex. Educ. Code § 51.203. Slettebo was responsible for authorizing and approving qualifications of police personne l commissioned as peac e office rs for the UT Sy stem and i t s i n s t i t u t i ons. Under the UT Sy stem’s police inspection prog ram, the ODOP is responsible for conducting biannual inspections to evaluate perf ormanc e and submitt ing repor ts to the appropr iate levels of administration reg arding such matters as compliance , eff iciency , and ef fec tiveness. At some time in 2007 or 2008, Miller either persona lly fi l ed a complaint, or forwa rded to Slettebo an anony

mous complaint he had rec eived, alleg ing misappropriation of funds by the UTPA president an d v i ce president. On September 9 and 10, 2008, in the course of an inspection of UTPA’s police depar tment, the ODOP discovere d that UTPA’s rec ords did not contain a current firear

ms qualification score for Miller, whic h was required by both TCL EOSE, see Tex. Occ

. Code § 1701.355, and ODOP policy

. Following further document revie w and a meeting with Miller to discuss the defic iency , an ODOP inspect or filed two written complaints ag ainst Miller alleg ing that his firea

rms qualifications rec ord wa s not curr ent, he had falsified his qualification

rec ord, and he had ver

bally berated the inspec tors duringthe inspection. Upon rec eipt of the complaints, Slettebo assig ned the as s i s t ant direc tor of police Mike Tac ker to conduct an int er n al i n v est iga tion. Tac ker provided Miller with notice of the complaints, interviewe d him, and invited him to provide a writ t en response , which Miller subsequently

did. On September 14, 2008, Miller was place d on suspension with pa y pending the investigation. During the investig ation, UTPA rec eived two additional complaints ag ainst Miller,

3one alleg ing that Miller reta liated ag ainst an office r who cooper ated in the investigation and the other

involving the use and condition of the university computer Miller had used at home. Following the investigation, Slettebo deter mined th at the complaints ag ainst Miller should be sustained. On September 26, 2008, Slettebo informed Miller that he intended to terminate his commis s i o n with ODOP and r ecommend to the vice president for business aff airs of U TPA that his employ ment be termin at ed

. Miller was given the opportunity to, and did, respond. On October 2, 2008, Slettebo terminated Mi l ler’s commission with ODOP, and the following day UTPA president terminated Miller’s appointment as c hief of police

.

On Marc h 23, 2009, Miller filed a char g e of discrimination with the Texas Workforce Commi ssion–Ci vil Rights Division (TWC). I n the complaint, Miller named UTPA as the employ er who had discriminated ag ai n s t h i m and alleg ed that he had been subjected to a hostile work environment and disparate treatment in the form of ag e, disability , color, and rac e discrimination and had been wrong fully terminated in reta liation for repor ting misappropriation of funds. I n response , UTPA filed a position statement deny ing the char g es. The UT Sy stem provided information for the position statement, which included copies of the UT S y s t em’s policy prog ram, the Miller investigation repor

t, and witness statements from four U T S y stem employ ees. On M ay 26, 2009, the TWC closed its file on Miller’s char g e, without making any finding s, and issued a notice of rig ht to file civil action.

On August 7, 2009, Miller filed suit ag ainst UTPA and the UT Sy stem asser ting the

same hostile w ork environment, disparate trea tment, a nd wrong ful termination claims made in his char g e of discrimination. UTPA and the UT Sy stem filed a plea to the jurisdiction seeking (1)

4dismiss al of all of Miller’s claims ag ainst the UT Sy stem based on the lack of a direc t employ ment relationship and Miller’s failure to exhaust his administrative reme dies ag ainst the UT Sy stem and (2) dism issal of Mi ller’s hosti le work e nvironment claims ag ainst both UTPA and the UT Sy stem for failure to plead fac ts sufficie nt to support such a claim. The district court denied the plea to the jurisdiction, and this appeal followe d.

DISCUSSIO N Stand ard of Review

A plea to the jurisdiction is a dilatory plea that se eks dismissal of a ca se for lack of subject matter jurisdiction. See Harris Cnty. v. Syke s , 136 S.W .3d 635, 638 (Tex. 2004). Sovereig n immunit y deprive s a trial court of subject matter j u ri sdiction in suits ag ainst the state and cer tain g overnme ntal units unless the state consents to suit and is there fore proper ly asser ted in a plea to the jurisdiction. Texas Dep ’ t of Parks & W ildlif e v. M iranda , 133 S.W .3d 217, 223, 226 (Tex. 2004)

. “F or a suit to proce ed ag ainst a g overnme ntal unit under a statute [t hat waives sovere ign immunit y ], the court must first look to the terms of the Act to deter mine the scope o f i t s wa iver and then ‘consider the particula

r fac ts of the case . . . to deter mine whether it comes within that scope.’ ” Texas Dep’ t of Criminal Justice v. Cooke , 149 S.W .3d 700,704 (Tex. App.—Austin 2004, no pet.) (quoting Texas De p’t of Criminal

Justice v . Miller , 51 S.W .3d 583, 587 (Tex. 2001)). Be cause subject matter jurisdiction prese nts a question of law, we revie w a trial court’s ruling on a plea to the jurisdiction de novo. W estbrook v. Penley , 231 S.W .3d 389, 394 (Tex. 2007). When a plea

to the jurisdiction challeng es the plea dings, w e must determine if the pl eade r has alleg ed sufficie nt fac ts to aff irmatively demonstrate the trial court’s ju r is d ic ti o n to hear the cause . 5Miranda , 133 S.W .3d at 226. To make this deter mination, we look to the pleade r’s intent, construe the pleading s liberally in favor of ju ri s d i ct i o n , and acc ept the alleg ations in the pleading s as true. W estbrook , 231 S.W .3d at 405; Miranda , 133 S.W .3d at 226. When the pleadings do not alleg e sufficie nt fac ts to aff

irmatively demonstrate the trial court’s jurisdiction but do not aff irmatively demonstrate an incura

ble jurisdictional defe ct , t h e issue is one of pleading sufficie ncy , and the plaintiff s hould be given an opportunity to amend. Miranda , 133 S.W .3d at 226–27. Howe ver, a pleade r must be g iven an oppor tunity to amend in re sponse to a plea to the jurisdiction only if it is possible t o cure the pl eading defe ct. See Baylor Univ. v. Sonnichsen , 221 S.W .3d 632, 635 (Tex. 2007). I n addition, if the pleading s aff irmatively neg ate the exis tence of jurisdiction, then a plea to the jurisdiction may be g rante d without a llowing the plaintiff an opportunity to a mend. Id. at 227. I f a plea to the j urisdiction challeng es t he ex istence of jurisdictional fac ts, we m ay consider rele vant evidenc e submitt ed by the parties and must do s o wh en nece ssary to resolve the jurisdictional issue. Miranda , 133 S.W .3d at 223, 227; Bland Indep. Sch. Dist. v. Blue , 34 S.W .3d 547, 554–55 (Tex. 2000); Good Shepherd Med. Ctr. v. State , 306 S.W .3d 825, 831 (Tex. App.—Austin 2010, no pet.). Where, as here , the challeng e to jurisdictional fac ts does not implicate the merits of the case , and the fac ts are undisputed, the trial court rules on the plea to the jurisdiction

as a matter o f l aw , an d t he appellate court revie ws the ruling de novo. Miranda , 133 S.W .3d at 3 226–27; University of Tex. v. Poindexte r , 306 S.W .3d 798, 806 (Tex. App.—Austin 2009, no pet.).

I f the jurisdictional fac ts are disputed, the court must make the nece ssary finding s t o 3 resolve the issue. Texas De p ’ t o f Parks & W

ildlif e v. Miranda , 133 S.W .3d 217, 227–28 (Tex. 2004); Good Shepherd Med. Ctr. v. State , 306 S.W .3d 825, 831–32 (Tex. App.—Austin 2010, no pet.). These finding s may be challeng ed for leg al and fac tual sufficie ncy , and we revie w the trial court’s jurisdictional decision based on found fac ts de novo. Good Shepherd Med. Ctr. , 306 S.W .3d at 832; Universi t

y o f Tex. v. Poindexte r , 306 S.W .3d 798, 806–07 (Tex. App.—Austin 2009, no pet.). When the challeng e to a jurisdictional fac t implicates the m er i t s o f the action, there is a differ ent standar d. See M iranda , 133 S.W .3d at 227–28; Poindexte r , 306 S.W .3d at 806.

6UTPA’s and the UT Sy stem’s issues also involve matters of statutory construction,

which we revie w de novo. See Texas Mun. Power Agenc y v. Public Util. Comm’n , 253 S.W .3d 184, 192 (Tex. 2007). Of primary conce rn is the express statutory lang uag e. See Ga l b r a i t h Eng’g Consultant

s, Inc. v . Pochuc ha , 290 S.W .3d 863, 867 (Tex. 2009)

. We apply the plain meaningof the text unless a differ ent meaning is supplied by leg islativ e d ef i n i t i on or is appar ent from the context, or the plain meaning leads to absurd resu l t s . Ma r ks v. St. Luke’s Episcopal Hosp. , 319 S.W .3d 658, 663 (Tex. 2010).

Sui t Against P arty OtherThan Direc t Em ployer

I n their first issue, UTPA and the UT Sy stem contend that the district court err ed in denying their plea to the jurisdiction as to the UT Sy stem on the g round that, beca use the UT Sy stem was not Miller’s employ er, Mill er has failed to establish that the UT Sy stem waived its sovere ign immunit y under the TCHRA. As a g overnme ntal unit, the UT Sy stem enjoy s sovere ign immunity unless it is waived by statute

. S ee Miranda , 133 S.W .3d at 224; Texas Dep’t of Transp. v. Jones , 8 S.W .3d 636, 638 (Tex. 1999). The TCHRA p rovides a limit ed waiver by including counties, municipalities, state ag encie s, and state instrumentalities in the definition of “employ er.” See Tex. L ab. Code 21.202(a)

. Gene rally , only employ ers may be liable for unlawful employ ment prac tices under the TCHRA. S

ee i d

. § § 2 1

. 051, .055. Be cause it is undisputed that Miller did not have a direc t employ

ment relationship with the UT Sy stem, the issue turns on whether it can be sued under the TCHRA in the absenc e of suc h a re lationship. See Cook e , 149 S.W .3d at 704. Miller contends that his claims ag ainst t h e UT Sy stem can be maintained in the absenc e of a direc t employ ment relationship under the standard articula ted by the supreme court in

7NME Hosps., Inc. v. Renne ls , 994 S.W .2d 142 (Tex. 1999). I n Renne ls , the supreme court adopted

the rea soning of the D.C. Circuit in Sibley Mem ’l Hosp. v. W ilson , 488 F.2d 1338 (D.C. Cir. 1973), that a direc t employ

ment relationship is not require d if the plaintiff can show that an employ er used its position of power and control, adver sely and wrong fully , to interfe re with the pl ai ntiff’s employ ment relationship with a third party

. Id. at 147; see Sibley , 488 F.2d at 1341–43. Adapting these elements to the TCH RA , th e s u p reme court established a three -prong ed test for Sibley standing : A plaintiff must show that (1) the defe ndant is an employ er within the statutory definiti o n , (2) an employ ment relationship exis ts betwee n the plaintiff and a third party , and (3) the defe ndant controlled acc ess to the plaintiff’s employ ment opportunities and deni ed o r interfe red with that

acc ess base d on unlawful c riteria. Renne ls , 994 S.W .2d at 147.

The parties do not disput e t hat t he first two elements are met in this case . The UT Sy stem is an employ er under the definition in the TCHRA, see Tex. L ab. Code § 21.002(8), and Miller was an employ ee of a third party , UTPA. The p ar t i es, howeve r, join issue as to the third prong . UTPA and the UT Sy stem challeng e the jurisdictional fact o f whether the UT Sy stem controlled acc ess to Miller’s employ ment and deni e d o r in

te r fer ed with that acc ess based on unlawful criter ia. Be cause this issue involves a challeng e to the exis tence of jurisdictional fa ct s , we must consider the rele vant evidenc e submitt ed by the parties at the hear ing on the plea to the jurisdiction. See Miranda , 133 S.W .3d at 227–28 ; Blue , 34 S.W .3d at 555

. T he evidenc e included Miller’s char g e filed with the TWC, UTPA’s position statement fi l ed i n re sponse, a letter from Slettebo informing Mi l l er of his intention to terminate his commission, a letter from Slettebo terminating M il le r ’ s c o mm is s io n , a

nd a letter to Miller from UTPA’s president terminating Miller’s em p lo y me n t.

8The undisputed evidenc e shows that the UT Sy stem ODOP was in a position to and

did exert control over UTPA’s employ ment decisio n s . Miller’s employ ment with UTPA was depende nt on his being commissioned throug h appointment w ith the UT Sy stem ODOP. See 37 Tex. Admin. Code § 211.1 (def ining “ commissioned” as “ hav[ing] be en g iven the leg al power to a ct as

a peac e office r . . . .”). When Slettebo terminated Miller’s commission, Miller was no longe r leg ally qualified to act as police chief for UTPA. See id. Moreove r, in his letter indicating his intention to terminate Miller’s commission, Slettebo also sta t ed that he was forwa rding the letter to the vice president of UTPA “with a r e c o mm e n d a ti o n th a t [Miller’s] employ

ment with the University of Texas at P an Am be terminated.” The relationship betwee n the UT Sy stem ODOP, whereb y t h e OD OP commissions the peac e office rs empl o y ed by the various instit utions comprising the UT Sy stem, coupled with the leg al re quirement that a n office r be c ommissi oned, see id. , put the UT Sy stem in

a position to control whether Miller was q u al i fi ed to maintain his employ ment with UTPA. The

ev idence also shows that Slettebo exerted that control by terminating Miller’s commission and

rec ommending termination of his employ ment and that UTPA terminated Miller’s employ ment on the day following Slettebo’s rec ommendation. On this rec ord, we conclude th a t M iller has shown that the UT Sy stem both controlled Miller’s acc ess to employ ment with UTPA and interfe red with that acc ess and that he is entitled to Sibley standing under the TCHRA. See Renne ls , 994 S.W .2d at 14 7 (plaintiff showing defenda nt

was in position to interfe re with employ ment rela tionship with third party had Sibley standing ). There fore , Miller has established that the UT Sy stem’s immunit y is waived under the TCHRA, and the district court proper ly d en i ed t he plea to the jurisdiction on this g round. See Miranda ,

9133 S.W .3d at 228; Renne ls , 994 S.W .2d at 147. We overr ule UTPA’s and the UT Sy stem’s first issue.

Exhau stion of

Rem edies I n their second issue, UTPA and the UT Sy stem contend that the trial court err ed in ref using to dismiss Miller’s claims ag ainst the UT Sy stem beca use Miller failed to exhaust his administrative reme dies ag ainst the UT Sy stem. I t is well settled that an action under the TCHRA require s an exhaustion of administ ra t i v e remedies. See Hoffmann-La Roche , Inc., v. Zeltwanger , 144 S.W .3d 438, 446 (T ex . 2 0 04) (exhaustion of reme dies mandatory prer equisite to filing civil action under the TC HRA). I t is also clear that the failure t o exhaust the TC HRA’s admini strative

reme dies i s a j u ri s d i ctional defe ct. City of W aco v. Lopez , 259 S.W .3d 147, 154 (Tex. 2008) (noncomplianc e with Commi ssion proce dures deprive s courts of subject matter jurisdiction). Under the TCHRA, the exhaustion of administrative reme dies beg ins when a party files a complaint with the TWC. See Tex. L ab. Code § 21.201; W affle House, Inc. v. W

illiams , 313 S

. W

. 3 d 7 9 6, 804 (Tex. 2010). UTPA and the UT Sy stem do not c ontend that Miller failed to f ile a section 21.201 complaint. Rather, their argument is based on the undisputed fac t that Miller did not expressly name the UT Sy stem as an employ er who discri m i n at ed ag ainst him in his complaint. Section 21.201, howeve r, does not require that a complaint state the name of the employ er. See Tex. L ab. Code § 21.201(c) (3); Ove rstreet v. Underwood , 300 S.W .3d 905, 909 (Tex. App.—Amar il l o 2009, pet. denied)

. Section 21.201 provides only that a complaint state “fa cts sufficie nt to enable the [TW C]
to identify the respondent .” Tex. L ab. Code § 21.201(c) (3) (empha sis added)

. “Respondent means 10the person char g ed in a complaint under [ Chapter 21] and may incl u d e an employ er, employ ment ag ency , labor org anization, or joint labor-ma nag ement committee that controls an appre nticeship or other tra ining or

retra ining pr og ram, including an on-the -job training prog ram.” Id. § 21.002(13). Thus, it appears from the plain lang uag e of the statute that a party may be identifiable as a “re spondent” char g ed in the complaint without being expressly named. See Tex. L ab. Code § 21.201(c) (3), .002( 13); Marks , 319 S.W .3d at 663.

I n interpre ting section 21.201, we are also g uided by fede ral law. The TCHRA was

enac ted to “provide for the execution of the policies of Title VI I of the Civil Rights Act of 1964 and its subsequent amendments,” Tex. L ab. Code § 21.001(1), and is “modeled afte r fede ral civil rig hts law.” Renne ls , 994 S.W .2d at 144. Be cause one of the primary g oals of the TCHRA is to coordina te state and fede ral employ

ment discrimination law, in interpre ting section 21.201(c) (3), we may look
to fede ral law interpre ting analog ous Title VI I provisions as authority

. See In re United Servs. Auto. Ass’n , 307 S.W .3d 299, 308 (Tex. 2010) (ana logou s fe d eral statutes and case s interpre ting them g uide courts’ rea ding of TCHRA); Speciality Retailers, Inc. v. DeM oranville , 933 S.W .2d 490, 492 (Tex. 1996) (per curiam) (bec ause purpose of TCHRA is to bring Texas law in line with fede ral law, fe d eral case law may be cited as authority); Austin State Hosp. v. K itchen , 903 S.W .2d 83 , 8 7

– 8 8 (Tex. App.—Aus tin 1995, no writ) (cour t looks to analog ous fede ral law when appropr iate); cf. Prairie View A&

M Univ. v. C

h a t h a , 381 S.W .3d 500, 503, 509 (Tex. 2012) (when amendment to Title VI I enac ted and simil ar amendment to T CHRA not enac ted, Title VI I and TCHRA no longe r analog ous as to subject of a mendment and Te x as Supreme Court looks solely to its precede nt).

11L ike the TCHRA, Ti tle VI I require s that “a person claiming to be ag g rieve d” must

exhaust his administrativ e re m edies by filing a char g e with the Equal Employ ment Opportunity Commi ssion (EEOC) befor e seeking judicial relief

. 42 U.S.C. § 2000e-5( b). Gene rally , only parties previously identified as responde nts in char g es filed with the EEOC are subject to liability un d er Title VI I

. Terrell v. United States Pipe & Foundry, Co. , 644 F.2d 1112, 1122 (5th Cir. 1981); Ajaz

v. Continental Airlines , 156 F.R.D. 145, 147 (S.D. Tex. 1994). Howeve r, beca use most complaints

are made by persons unfamiliar with the technica lities of formal pleading s, fede ral courts apply ing section 2000e-5( b) construe the complaint liberally and “look slightly bey ond its four corne rs, to its substance rathe r than its labe l.” Pache co v. Mineta , 448 F.3d 783, 788–89 (5th Cir. 2006); accord Bostic v. W

all , 588 F. Supp. 994, 997 (W.D.N.C. 1984), aff’ d 762 F.2d 997 (4th Cir. 1985); Kern v. Gene ral Elec. , No

. 3-02-CV-2435- L , 2003 US. Dist. L EXI S 10331, at *16 (N.D. Tex. J une 17, 2003); Bartosh v. Sam Houston State Univ. , 259 S.W .3d 317, 321 (Tex. App.—Texarkana 2008, pet. denied) (citing Preston v. Dep’ t of Family & Prot. Servs. , 222 Fe d. App’x 353, 356 (5th Cir. 2007)). “The Courts have, there fore , rec og nized exceptions to the g ener al rule that a defe ndant must be named in the char g e bef ore he can be sued.” Bostic , 588 F. Supp. at 997; accord Romero

v. Union Pac. R.R. , 6 1 5 F. 2d 1303, 1311 (10th Cir. 1980); Burrell v. Truman Med. Ctr., Inc. , 721 F. Supp. 230, 233 (W.D. Mo. 1989).

One rec og nized exception is the “ac tual notice exception.” Burrell , 721 F. Supp. at 2 3 3 ; a ccord Gree nwood v. Ross , 778 F.2d 448, 451 (8th Cir. 1985); Marks v. Prattco, Inc

. , 607 F.2d 1153, 1156 (5th Cir. 1979); David v. W eidner , 596 F.2d 726, 729 (7th Cir. 1979); Bostic , 588 F. Supp. at 997. A primary purpose of the char g e is to trig g er an investiga tion so that voluntary

12compliance is achieve d throug h a conciliatory proce ss. Pache co , 448 F.3d at 788–89. There fore ,

suit is not barr ed ag ainst an unnamed party who has been provided adequate notice of the char g e and g iven the opportunity to participate in conciliation proce eding s. Gree nwood , 778 F.2d at 451 (“The filing of an EEOC char g e is unnece ssary wher e an unnamed party has been provided with adequate notice of the char g e, u n d er ci rcumstances wher e the party has been g iven the opportunity to participa te in conciliation proce eding s aimed at voluntary compliance .”); B o s ti c , 5 8 8 F

. Su p p . a t 997; Bernard v. ATC Vancom , No. 3:04-CV-1820-D, 2005 U.S. Dist. L EXI S 881, at *14 (N.D. Tex. J an. 20, 2005); Morris v. Drs. Coney, Husbands, McCullough, Oliver, Vines, & Assocs., P.A. , No. 3:96-CV-2464-D , 1998 U.S. Dist. L EXI S 1587, at*8 (N.D. Te x . Fe b. 9, 1998).

I n this case , afte r identify ing UTPA as the employ er who discriminated ag ainst him, Mille r’ s co m p l ai nt alleg es acts of discrimination by three individuals: the president and vice p re sident of UTPA and “UT Police Sy stem Direc tor of Police, J ohn Slettebo.” The com p l ai n t 4 further alleg es that “John Slettebo, Direc tor of Police” notified Miller of h i s t er m i n at i on. The 5

rec ord shows that there was a relationship betwee n the UT Sy stem ODOP and UTPA reg arding the commissioning, employ

ment, and supervision of police office rs. Although UT P A and the UT Sy stem deny rec eiving notice “fr o m th e [T WC ]” o r “par ticipat[i ng ] in conciliation,” the evidenc e shows that the UT Sy stem rec eived ac tual notice, presumably from UTPA, and not only had the

We observe that the TC HRA cre ates a cause of action only against an employ er and not 4 ag ainst supervisors or individual e mploy ees. See Tex. L ab. Code §§21.051–.059, .117, .119; City of Austin v. Gifford , 824 S.W .2d 735, 742 (Tex. App.—Austin 1992, no writ). This statement require s clar ification. The rec ord shows that Slettebo notifie d Miller that 5 his commission was terminated and th e UT P A president notified him that his employm ent was ter minated. 13opportunity to, but actua lly did, participate in the TWC’s conciliation proce eding s by compiling and

providing information for the re s p onse t o Miller’s complaint. Ba sed on the undi sputed fac ts, and construing the complaint liberally , see Pache co , 4 4 8 F. 3d at 788–89, we conclude that the UT Sy stem was provided adequa te notice of the char g e and opportunity to participate in conciliation and Miller did not fail to exhaust his administrative reme dies as to the UT Sy stem. See Gree nwood , 778 F.2d at 451; Bostic , 588 F. Supp. at 997. Therefor e, we hold that the district court did not err in denying UTPA’s and the UT Sy stem’s plea to the jurisdiction as to the UT Sy stem. See Miranda , 133 S.W .3d at 228; Good Shephe rd Med. Ct r. , 306 S.W .3d at 831–32; Poindexte r , 306 S.W .3d at 806. We overrule UTPA’s and the UT Sy stem’s second issue.

Hostile Work Envi ronm ent Claim

I n their third issue, UTPA and the UT Sy stem asser t that the trial court err ed in failing
to dismiss Miller’s hostile work environment claim ag ainst both d ef en d an ts beca

use Miller’s pleading s failed to alleg e fac ts suffici en t to establish jurisdiction. “A hostile work environment claim entails ong oing hara ssmen t , b as ed on the plaintiff’s protec ted char acte ristic, so sufficie ntly

sever e or perva sive that it has altere d the conditions of employ ment and cre ated an abusive working environment.” Bartosh , 259 S.W .3d at 324. Such a claim is a continuing violation composed of a series of separ ate acts that collectively constitute one unlawful employ ment prac tice. Santi v. Unive rsity of Tex. Health Sci. Ctr. at Houston , 312 S.W .3d 800, 805 (Tex. App.—Houston [1s t Dist.] 2009, no pet.); Bartosh , 259 S.W .3d at 324. I t is not sufficie nt for the plaintiff to show a series of discriminatory acts. Huck abay v. Moore , 142 F.3d 233, 239 (5th Cir. 1998)

. Rather, a plaintiff
must show an org anized scheme leading to and including a prese nt violation such t h at it is the

14cumulative eff ect of the discriminatory prac tice, rathe r than any discrete occur renc e, that g ives rise
to the cause of action. Id. ; Santi , 312 S.W .3d at 805. The continuing violation doctrine applies when

an unlawful employ

ment prac tice manife s ts itself over time, Santi , 312 S.W .3d at 804–05, and a complaint is timely if an act contributing to the clai m o cc u rr ed within the statutory filing period. National R.R. Passenger Corp. v. Morgan , 536 U.S. 101, 117 (2002); Sasse v. United States Dep’ t of Labor , 409 F.3d 773, 783 ( 6th Cir. 2005).

Be cause hostile environment claims ar e base d on the cumulative e ffe ct of re peate d acts, they are differ ent i n n ature from claims based on discrete acts. Morgan , 536 U.S. at 115. One- time events such as termination, failure to hire or promote, denial of transfe r, or demotion are discrete acts that are conce ptually differ ent from hostile environment claims and “ca nnot be lumped toge ther with the day -to-day pattern of rac ial hara ssment

. . . .” Huck abay , 142 F.3d at 240; Olivarez

v. The Univ. of Tex

. at A ustin , No. 03-05-00781- CV, 2009 Tex. App. L EXI S 3796, at *7, 13 (Tex. App.—Austin May 21, 2009, no pet.) (mem. op.) (citing Huck abay ); see also Santi , 312 S.W .3d at 805–06 (dec ision not to rene w contra ct and denial of attempt to license materia ls wer e two discrete
acts that did not constitute alleg ation of contin u i n g v iolation). “ Eac h discrete discriminatory act starts a ne w clock f

or filing char g es alleg ing that act.” Morgan , 536 U.S. at 113. Her e, Miller alleg es only two specific acts of discrimination—his suspension and his termination. Although he g ener ally asser t s that he was subjected to a hostile work environment during the last six months of his employ ment, he identifies no other acts in support of his claim. Suspension and termination are the kind of easily identifiable discrete acts to which the continuing

v i o l at i o n doctrine does not apply

. See Morgan , 536 U.S. at 114; O’Connor v. City of Newark ,

15440 F.3d 125, 127 (3rd Cir. 2006); Santi , 312 S.W .3d at 8 0 5 ; B a r t o sh , 259 S.W .3d at 324

(“Te rmination does not qualify as a predic ate act supporting the hostile-work-e nvironment claim; termination is no t itself hara ssing conduct.” ). Both constitute “sepa rate actionable ‘unlawf

ul employ ment prac tice[s] ,’” see Pegram v. Honey well, Inc. , 361 F.3d 272, 280 ( 5 th Ci r . 2 0 0 3) (quoting Morgan , 536 U.S. at 114 ), an d ev en if based on discriminatory criter ia, “ca nnot proper ly be char acte rized as part of a contin u i n g h ostile work environment.” Sasse , 409 F.3d at 783; accord Huck abay , 142 F.3d at 240; Santi , 312 S.W .3d at 805–06. I n addition, of these two discrete acts, only Miller’s terminati on occur red within 1 8 0 day s prior to his complaint, the statutory limit ations period. See Tex. L ab. Code § 21.202(a) (complaint must be filed within 180 day s afte r alleg ed unlawful conduct)

. Miller contends that his timely complaint reg arding termination operates to bring his otherwise time-barr ed alleg ation based

on suspension into the scope of his hostile environment claim. Howeve r, “discre te discriminatory
acts are not actionable if time barr ed, even when they are relat ed t o acts alleg ed in timely filed char ges . ” P egram , 361 F.3d at 279; accord Sasse , 409 F.3d at 783. Nor do discrete acts that fall within the statutory time period make timely acts that fall outside the time period. Morgan , 536 U.S.
at 112. There fore , Miller “ca nnot use a termination that fell within the limit ations period to pull in the time-barr ed act [of suspension]” in an eff ort to char acte rize them as part on an ong oing violation. See Morgan , 536 U.S. at 113. Even considering the intent of Miller’s pleading s and ac cepting the alleg ations as true, we conclude that he has not alleg ed fac ts suffi ci en t t o raise the issue of a continuing sc heme a s require d for a hostile w ork environment claim and the district c ourt err ed in denying UTPA’s and the UT Sy stem’s plea to the jurisdiction with respe ct to Miller’s hostile work

16environment claim. See Miranda , 133 S.W .3d at 226 (plaintiff has initial burden to plead fac ts

aff irmatively showing trial court has jurisdiction); Good Shepherd Me d

. Ctr. , 306 S.W .3d at 831 (same) ; Morgan , 536 U.S. at 113–114; Santi , 312 S.W .3d at 805–06. Fur ther, reple ading cannot

cure Miller’s failure to timely file a char g e complaining of any act that i s p ar t of a hostile work environment. See Tex. L ab. Code § 21.202(a) ; Morgan , 536 U.S. at 118; Sonnichsen , 221 S.W .3d at 635. We sustain UTPA’s and the U T Sy stem’s third issue.

CONCLUSION We reve rse the district court’s denial of the plea to the jurisdiction as t o M iller’s hostile work environment claim and dismiss that claim for lack of jurisdiction. We aff

irm the district court’s de nial of the plea

to the jurisdiction in all other respe cts.

__________________________________________ Melissa Goodwin, Jus tice Be fore Chief J ustice Jones, J ustices Goodwin and F ield Affir med in part; Rever sed and D ismiss ed in par t Filed: August 28, 2013

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