Opinion issued December 6, 2018

In The 

## Court of Appeals For The 

## First District of Texas

———————————— NO. 01
- 1 8
- 00 221
- CV

——————————— THE UNIVERSITY OF TE XAS

– MD ANDERSON CA NCER CENTER, Appellant V. RACHEL PHILLIPS , Appellee

On Appeal from the 334th District Court

Harris County, Texas Trial Court Ca se No. 2017
- 49643

MEMORANDUM OPINION Appellee , Rachel Phillips, sued her employer, appellant, The University of
Texas

– MD Anderson Cancer Center ( “ UTMDA ”) , for sex discrimination and2

retaliation under the Texas Commission on Human Rights Act (“TCHRA”). 1
UTMDA b rings this interlocutory appeal, 2 challenging the trial court’ s denial o f its plea to the jurisdiction. In its sole issue, UTMDA contends that the trial court lacked subject

- matter jurisdiction over Phillips’s claims because the evidence establish es that she did not timely exhaust her administrative remedies unde r the TCHRA. We vacate the trial court’ s order and dismiss the case. Background
In 2013, Phillips began her employment as an administrative assistant at
UTMDA

. In November 2013, aft er having her first child and returning to work from maternity leave, Phillips utilized a facility at UTMDA for nursing mothers each day. Phillips alleged that , thereafter, UTMDA Department Administrator Aaron Walton began to harass her, including waitin g for her outside the facility . On one occasion, Walton interrupted her while s he was using the facility, asked to meet with her imme diately, and humiliated her by forcing her to attend a meeting with colleagues while she was visibly “ still lactating underneath her shirt. ” Within a month after Phillips contacted the UTMDA Ombuds Office and an ombudsper son attemp ted to mediate , Walton and Operation s Manager Gina Dimiceli bega n retaliating against Phillips by falsely accusing her of workplace violations.

1 See T EX
. L AB
. C ODE A NN
. §§ 21.051 , 21.055

. 2 See T EX
. C IV
. P RAC
. & R EM
. C ODE A NN
. § 51.014(a)(8).3

D espite her having been punctual to work and having received p ositive perform ance reviews, Phillips was written up for being late to work.
In 2014, Phillips complained to UTMDA Vice Cha ir Bill Plunkett

. Upon her attempt to resign, P lunkett proposed that she continue her employment and work part

- time, with the possibility of being promoted to the position of Grant Program Coordinator. Later, however, Phillips was told that s he could not be promoted because of her child care duties, which would not allow her to work remotely. In 2015, during a UTMDA party , Phillips and her husband told Walton that they were expecting a second chi ld, and he responded, “ [T]hat is going to cost you.” Subsequently, a fter Phillips returned from maternity leave, Walton again began to harass and discriminate against her. He was resistant to h er requests to use the key to access the facility for nursing mothers

. On one or more occasions, upon exiting the facility , Phillips again found Walton standing outside the door and looking
in side. On one occasion, Walton commented to her that she was “d isgusting.” Phillips was also reprimanded for wearing maternity clothes, while other employees were allowed to wear flip

- flop sandals and to expose tattoos. After Walton and Dimiceli began heavily scrutinizing Phillips’ s attendance, conduct, and work
per formance , and accused her of falsifying he r “ badge times , ” Phillips’s employment wa s terminated

.4

At a meeting o n March 14, 2016, Walton, on behalf of UTMDA, presented Phillips with an “Intent to Terminate” letter, stating, in pertinent part, as follows:
It is my intent to terminate your employment for unacceptable conduct for falsification of time.

. . . In October 2015, a complaint was received from your manager concerning your availability during work hours. Upon an investigatory audit, it revealed that between the period of October 1, 2015 and March 1, 2016 there were approximately 28 instances where you had an unscheduled PTO request, did not work your scheduled shift or failed to badge during a shift. It also revealed that between January 1, 2016 and March 1, 2016 , you were out of th e building on 10 incidents for periods of time ranging from 1 to 3 hours. You were clocked in and being paid during those times and there [were] no apparent work tasks that needed to be done outside the building. You will have an opportunity to provide a written response as to why this termination should not occur.

. . . You will not be required to report to work during this time period. How e ver, you will be required to remain available and fully cooperate with any request s for information until a final decision is communicated to you. You are required to return your identification badge and all other University of Texas property to me pending the final decision about your em ployment. If a decision is made not to terminate your employment, you will be notified of the decision and I will make arrangements to reinstate you and your badge and institutional property will be returned. Phillips signed the letter, indicating her receipt, and signed a “Demotion/Suspension/
Termina tion Disciplinary Record .” On March 17 and 28, 2016, Phillips sent email response s to UTMDA human

resources personnel regarding her concerns that she had been the target of discrimination

.5

On April 19, 2016 , Walton, on behalf of UTMDA, sent P hillips a “Termination Decision” letter, stating , in pertinent part, as follows: This L etter is to inform you of the termination of your employment with [UTMDA] effective immediately. The decision to term inate your employment was based on your violation of conduct and attendance expectations in accordance with [UTMDA’s] Disciplinary Action Policy. An “Intent to Terminate” memor andum was presented to you on 3/14/ 201 5 that outlined the violations. You were subsequently provided an oppor tunity to respond to the “Intent to Terminate” memorandum before a final decision was made. I reviewed your response and did not find that you provided new or different information that would change the decision to terminate your employment. In view of th ese circumstances and as noted above, your employment with [UTMDA] will be terminated effective 4/15/2016. Your employment record will also reflect that yo u will not be eligible to be rehired i n the future. Please return your i dentification badge and any [UTMDA] issued property and equipment that is still in your possession immediately.

. . . On October 11, 2016, Phillips filed with the Texas Workforce Commission (“TWC”) and Equal Employment Opportunity Commission (“EEOC”) a “ Charge of Discrimination ” (“TWC complaint”) against UTMDA

. In her TWC complaint , which she attached to her petition, Phillips alleged that, beginning in November 2013 and continuing until March 2016, UTMDA , through its employees, discriminated against her on the basis of , as perti nent here, sex and that it retaliated against her by firing her . Namely, as discussed above, her supervisor and manager subjected her to employment actions not required of similarly situated personnel who we re not female. S he was also informed that , base d on her childcare duties, she could not be6

promoted . Phillips asserted that gende r was the motivating factor in UTMDA’s
decision to take adverse employment action against her

. Further, UTMDA employees retaliated against her for reporting the discriminat ory actions. After she complained to Plunkett, Walton and Dimiceli falsified allegations of work misconduct in order to terminate her employment , and her employment was subsequently terminated

. Subsequently, t he TWC issued Phillips a right

- to

- sue letter, and she filed the instant lawsuit

. UTMDA filed a plea to the jurisdiction, arguing that Phi l lips ’s suit was barred by sovereign immunity because she did not timely exhaus t her admin istrative remedies by filing a TWC complaint within 180 days of the allegedly di scriminatory
acts

. 3 UTMDA asserted that the 180

- day period begins whe n an employee is informed of an allegedly discriminatory employment decision, not when that deci sion comes to fruition. It asserted that the jurisdictional evidence est ablishes that it informed Phillips on March 14, 2016 of its intent to terminate her employment

. Thus, the deadline for her to file any administrative complaint was September 10,
2016

. Because it is undisputed that she did not file her TWC complaint until October
1 1, 2016 , her claims are barred

.

3 See T EX
. L AB
. C ODE A NN
. § 21.202(a) (“A complaint under this subchapter must be filed not later than the 180th day after the date the alleged unlawful employment practice occurred.”).7

In her respons e to the plea, Phillips argued that she timely exhausted her

a dministrative remedies because only a “ final decision triggers the commencemen t of the statutory limitations period of 180 days.” She asserted that the period commenced when UTMDA formally and finally terminated her employment in its April 19, 2016 “Termination Decision” letter. In the April letter, which Phillips incorporated int o her response, UTMDA noted that it had previously provided Phillips an opportunity to respond “b efore a final decision was made ” and that her employment would be terminated “ effective 4/15/2016 .” The l etter also states that Phillips’s employment was terminated “effective immediately , ” i.e., April 19, 2016. Phillips asserted that, whether she was terminated on April 15 or 19, 2016, her October 11, 2016 TWC complaint was filed within the 180

- day limitations period. In its reply in support of its plea, UTMDA again argued that an adverse employment action accrues when a plaintiff is informed of an alleged discriminatory employment action, and not when the action comes to fruition

. And, it is undisputed that UTMDA informed Phillips on March 14, 2016 of i ts inte nt to terminate her employment

. UTMDA attache d to its reply a copy of the March 14, 2016 letter. After a hearing, the trial court denied UTMDA’s plea to the jurisdiction.

Plea to the Jurisdiction
In its sole issue, UTMDA argues that the trial court erred in denying its plea to the jurisdiction because the evidence establish es that Phillips did not exhaust her8

administrative remedies by timely filing a TWC complaint. Thus, its immunity is not waived, and the trial court la cked subject

- matter jurisdiction over her claims.
I . Standard of Review We review de novo a trial court’ s r uling on a jurisdictional plea. See Ben Bolt

Palito Blanco Consol. Indep. Sch. Dist. v. Tex. Political Subdivisions Prop./Cas. Joint Self

- Ins. Fund , 212 S.W.3d 320, 323 (Tex. 2006); City of Hous. v. Vallejo , 371 S.W.3d 499, 501 (Tex. App.

— Houston [1st Dist.] 2012, pet. denied). A plea to the jurisdiction is a dilatory plea that seeks dismissal of a case for lack of subject matter jur isdiction. Harr is Cty. v. Sykes , 136 S.W.3d 635, 638 (Tex. 2004); Villarreal v. Harris Cty ., 226 S.W.3d 537, 541 (Tex. App.

— Houston [1st Dist.] 2006, no pet.). A plea to the jurisdiction may be utilized to challenge whether the plaintiff has met its burden of alleging ju risdictional facts or to challenge the existence of jurisdictional facts. See Tex. Dep’ t of Parks & Wildlife v. Miranda , 133 S.W.3d 217,
226

– 27 (Tex. 2004). Review of a plea challenging the existence of jurisdictional facts , as here, mirrors that of a matter

- of

- law summary

-

judgment motion. Mission Consol. Indep. Sch. Dist. v. Garcia , 372 S.W.3d 629, 635 (Tex. 2012); City of Hous. v. Guthrie , 332 S.W.3d 578, 587 (Tex. App.

— Houston [1st Dist.] 2009, pet. denied) (“[T]his standard generally mirrors that of a summary judgment under Texas Rule of Civil
Proce dure 166a(c)

. . . . By requiring the [political subdivision] to meet the9

summar y judgment standard of proof

. . . , we protect the plaintiffs from having to put on their case simply to establish jurisd iction.”); see also T EX
. R. C IV
. P. 166a(c). “[A] court deciding a plea to the jurisdiction

. . . may consider evidence and must do so when necessary to resolve the jurisdictional issues raised.” Bland Indep. Sch. Dist. v. Blue , 34 S.W.3d 547, 555 (Tex. 2 000). A court may consider evidence as necessary to resolve a dispute over the jurisdictional facts even if the evidence “implicates both the subject matter jurisdiction of the cou rt and the merits of the case.” Miranda , 133 S.W.3d at 226. We take as tr u e all evidence favorable to the nonmovant and we indulge every reasonable inference and reso lve any doubts in the nonmovant’ s favor. Id . at 228. If the defendant meets its burden to establish that the trial court lacks jurisdiction, the plaintiff is the n required to show that there is a material fact question regarding the jurisdictional issue. Id . at 227

– 28. If the evidence raises a fact issue regarding jurisdiction, the plea cannot be granted, and a fact finder must resolve the issue. Id

. On the ot her hand, if the evidence is undisputed or fails to raise a fact issue, the plea must be determined as a matter of law. Id . at 228; Garcia , 372 S.W.3d at 635.
II. Sovereign Immunity Sovereign immunity deprives a trial court of subject

- matter jurisdiction for lawsuits in which the state or certain governmental units have been sued unl ess the10

state consents to suit. 4 Tex. P arks & Wildlife Dep’t , 133 S.W.3d at 224

. UTMDA is a governmental agenc y of the State of Texas; it is a “[m]edical and dental unit” of The University of Tex as System. See T EX
. E DUC
. C ODE A NN
. §§ 61.003 (5) ; 65.02(a)(11 )

. “ State u niversities are agencies of the Stat e and enjoy sovereign immunity.” Bansal v. Univ. of Tex. MD Anderson Cancer Ctr ., 502 S.W.3d 347,
353 (Tex. App.

— Houston [ 14th Dist.] 2016, pet. denied) (quoting Hencerling v.
Tex. A&M Univ ., 986 S.W.2d 373, 374 (Tex. App.

— Houston [1st Dist.] 1999, pet. denied ))

. The l egislature has provided a limited waiver of immunity from suit f or employment discrimination and retaliation claims falling within the scope of the
TCHRA

. See T EX
. L AB
. C ODE A NN
. §§ 21.051 , 21.055 ; Prairie View A&M Univ. v. Chatha , 3 81 S.W.3d 500, 513 (Tex. 2012); Garcia , 253 S.W.3d at 660

. The TCHRA provides that an employer commits an “unlawful employment practice” if, because of race, color, disability, religion, sex, national origin, or age , the employer: (1) fails or refuses to hire an individual, discharges an individual, or discriminates in any other manner against an individual in connection with compensation or the terms, conditions, or privileges of employment; or

4 “Sovereign immunity” and “governmental immunity” are sometimes treated as interchangeable te rms. See Reata Constr. Corp. v. City of Dall. , 197 S.W.3d 371, 374 n.1 (Tex. 2006). Sovereign immunity is available to the state and its agencies, and governmental immunity is available to political subdivisions. Harris Cty. v. Sykes , 136 S.W.3d 635, 638 (Tex. 2004); Univ. of Tex. M.D. Anderson Cancer Ctr. v. King , 329 S.W.3d 876, 878 n.1 (Tex. App.

— Houston [14th Dist.] 2010, pet. denied).11

(2) limits, segregates, or classifies an employee or applicant for employment in a manner that would deprive or tend to deprive an individual of any employment opportunity or adversely affect in any other manner the status of an employee.
T EX
. L AB
. C ODE A NN
. § 21 .051. Further, an employer commits an unlawful employment practice if it retaliates or discriminates against a person who opposes a discriminatory practice or makes or files a charge or complaint. Id. § 21

. 055

. “[A] claimant can bring suit under the TC HRA against a governmental entity only after [the] claim ant strictly satisfies the procedural requirements outlined in the
TCHRA. ” Chatha , 381 S.W.3d at 513

– 14 . The claimant must first file a sworn, written complaint with the TWC “not later than the 180th day after the date the alleged unlawful employment practice occurred.” T EX
. L AB
. C ODE A NN
. §§ 21.201

– .202 ; see Yeh v. Chesloff

, 48 3 S.W.3d 108, 112

– 13 (Tex. App.

— Houston [1st Dist.] 2015, pet. denied)

. This is a mandatory statutory requirement and claims that are not timely filed are jurisdictionally barred. Chatha , 381 S.W.3d at 514 ; Davis v. Autonation USA Corp ., 226 S.W.3d 487, 491 (Tex. App.

— Houston [1st Dist.] 2006, no pet. )

. With respect to when an unlawful employment practice accrues , t he Texas Supreme Court has held : “Our precedent establishes that the 180

– day limitati ons period in the TCHRA begins ‘ when the employee is informed of the allegedly discriminatory employment decision, not when that decision comes to fruition. ’ ” Chatha , 381 S.W.3d at 516 (quoting Specialty Retailers , Inc. v. DeMoranville , 93312

S.W.2d 490, 493 (Tex. 1996) ); see also D elaware State College v. Ricks , 449 U.S. 250, 258, 101 S. Ct. 4 98, 504 (1980) (“T he proper focus is upon the time of the discriminatory acts, not upon the time at which the consequences of the acts become most painful. ” (internal quotations omitted) )

. That an employee may have felt the effects of discriminatory treatment later , or that the damage may continue to occur for an extended period of time after the discriminatory treatment , does not extend
t he commencement of limitations. Specialty Retailers , 933 S.W.2d at 493. This Court has concluded that an unlaw ful employment practice occurs on the date that the “ t erms and conditions of

. . . emp loyment [are] affected. ” Davis , 226 S.W.3d at 492 (discussing Specialty Retailers , 933 S.W.2d at 491) ; see also T EX
. L AB
. C ODE A NN
. § 21.051

. III . Analysis We address each of Phillips’s claims to determine whether UTMDA conclusively established its immunity from suit

. See Univ. of Hous. Main Campus
v. Simons , No. 01

- 02

- 00368

- CV, 200 2 WL 31388906, at *1 (Tex. App.

— Houston [1st Dist.] Oct. 24, 2002 , no pet. )

. A

. Sex Discrimination The evidence shows that Phillips asserted i n her TWC complaint that the “[l] atest ” date that d iscrimination took place was in “ March 2016. ” She asserted that in “March of 2016,” she was told to relocate her desk closer to Walton and that13

he began to “pester” her by asking her the reasons that she was frequently away from her desk; Walton resisted her requests to use the key to access the facility for nursing mothers; and she “sometimes” found Walton waiting for her outsi de the facility. In addition, she was reprimanded for wearing jeans, which were actually maternity clothes, although other employees were allowed to wear flip

- flop sandals and to expose tattoos

. Phillips does not allege any gender

- motivated discrimi natory acts occurring after “March 2016.” Thus, she was required to file a ny administrative complaint regarding such acts , i.e., those occurring on or before March 31, 2016 , within 180 days thereafter , or no later than September 27, 2016. See T EX
. L AB
. C ODE A NN
. §§ 21.201

– .202; Yeh , 48 3 S.W.3d at 112

– 13. It is undisputed that Phillips did not file her complaint until October 11, 2016. Because the evidence concl usively establishes that Phillips filed her TWC complaint more than 180 days after the discriminatory acts of which she complains, the trial court erred in denying UTMDA’s plea t o the jurisdicti on as to Phillips’s
claims based on sex discrimination

. See M iranda , 133 S.W.3d at 228 (holding that
if evidence is undisputed o r fails to raise fact issue, plea mu st be determined as matter of law )

. 2

. Retaliatory Discharge14

UTMDA argued in its plea that the evidence conclusively establishes its immunity from Phillip’s retaliat ory - termination claim because the 180

- day period began to run on March 14, 2016 , the date that it informed Phillips of its intent to terminate her employment and affected the t erms and conditions of her employment, i.e. , required her to surrender her badge and UTMDA property and told her not to report to work.
In Specialty Retailers , the complainant alleged th at her employer had discriminated against her by favoring younger workers and cont inually criticizing her and requiring her to work aft er hours

. 933 S.W.2d at 491. O n April 8, 1991, the complainant took medical leave from her job. Id. at 492. On May 10, 1991, her employer informed her that she w as being replaced as a buyer and that, according to company policy, she would be fired if her leave lasted lo nger than one year. Id. The complainant did not return to work and was terminated on either April 8, 1992 (according to the complainant ) or May 1 , 1992 (according to t he employer ). Id. On June 2, 1992, the complainant filed an administrative complaint, alleging that a discriminatory employment decision had occurred on April 8 , 1992. Id. The supreme court concluded that the 180

- day period “begins when the employee is informed of the allegedly discriminatory employment decision, not when that decision comes to fruition.” Id. at 493. The court held that, e ven if t he termination of the complainant’s employment in 1992 could be considered a discriminatory act,15

her c ompl aint wa s nevertheless untimely because she was no tified on May 10, 1991, that it intended to terminate her if she did not return to work within one year of the start of her medical leave. Id . Because the complainant did not file her TWC claim within 180 days after May 10, 1991 , her complaint was not timely filed. Id.
In Davis , the complainant f iled a charge of discrimination against her employer, alleging actions that occurred between April 1, 2001 and January 2, 2002.
22 6 S.W.3d at 490

. She further alleged that, on November 9, 2001, she was reprimanded for not meeting performance standards and was told that she could either transfer to a different department or be terminated. Id . at 492. She was told to take a couple of days and t hink about it. Id. After accepting the transfer and a significant decrease in her salary, she resigned. Id. at 489. On June 5, 2002, she filed a charge of discrimination against her employer. Id. at 490. We c oncluded that the date of the alleged disc riminatory employment decision was November 9, 2001, the date that the terms and conditions of the complainant’s employment were
affected. Id. at 492. We held that her complaint was untimely because she did not file it within 180 days of November 9, 2001

. Id

. Here, the evidence is undisputed that UTMDA informed Phillips on March 14, 2016 of its intent to terminate her employment. And, Phillips was instructed to surrender her badge and UTMDA property and told not to report to work

. Thus, t he
180

- day a dministrative

- filing period commenced on March 14, 2016, the date that16

Phillips was informed of UTMDA’s intent to terminate her employment, not when
the decision later came to fruition , and the date that her terms and conditions of her employment were affe cted

. See Specialty Retailers , 933 S.W.2d at 493; Davis , 226 S.W.3d at 492

. It is undisputed that Phillips filed her TWC complaint 211 days later, on Octobe r 11, 2016. Thus, her complaint was not filed within the requisite 180

- day period. See Specialty Retailers , 933 S.W.2d at 493; Davis , 226 S.W.3d at 492 ; see also Abbott v. Rankin , No. 06

- 07

- 00149

- CV, 2008 WL 5156453, at *4 (Tex. App.

— Texarkana Dec. 10, 2008, pet. denied.) (mem. op.) (holding that “limitations clock ” began to run on day employee “received news of his demotion for failure to meet performance standards”). Because UTMDA met its burden to esta blish that the trial court lacked jurisdiction, Phillips was the n required to demonstrate a material fact questio n regarding the jurisdictional issue. See M iranda , 133 S.W.3d at 227

– 28. Phillips argued that her TWC complaint was timely filed because the 180

- day period did not begin to run until April 15, 201 6, when she received UTMDA’s
formal and final “ T erminatio n Decision

. ” Relying on Thurman v. Sears, Roebuck
& Co ., 952 F.2d 128, 133

– 34 (5th Cir. 1992) , she asserted that the period commences when an employee “receives unequivocal notice of his termination or when a reasonable person would know of [her] terminat ion

. ” Phillips asserted that she “would not know of her termination” based on the March 14, 2016 lette r of “Intent to Terminate.” Specifically, the March letter lacks unequivocal notice because it17

conditions her termination on a failur e to provide a written response, and that she did so respond. Further, the April letter states that a final decision was made, which suggests that a final decision was not made in c onnection with the March letter

. T hurman does not support Phillips’s a rgument because it is inapplicable to this case . There, the court held that a “leave of absence” did not se ver the employment relationship and did not start the statute of limitations running on a claim of discrimin atory discharge based on the filing of a claim under the Texas Workers’ Compensation Act

. 952 F.2d at 136

. As discussed above , the limitations period applicable to Phillips’s claims
under the TCHRA commenced on March 14, 2016, when Phillips was informed of UTMDA’s intent to terminate her employment, and not when that decision later

came to fruition , and when the terms and conditions of her employment were first affected

. S ee Specialty Retailers , 933 S.W.2d at 493 ; Davis , 226 S.W.3d at 492 ; see also John son & Johnson Med., Inc. v. Sanchez , 924 S.W.2d 925, 929 (Tex. 1996) (“[W] hen determining the time at which a cause of action accrues in discrimination cases, [t]he proper focus is upon the time of the discriminatory acts, not upon the time at which the c onsequences of the acts [result in termination].” (internal quotations omitted)). We conclude that UTMDA established as a matter of law that Phillips did not file her TWC complaint within 180 days of when she “first learned about the18

discriminatory acts.” See Davis , 226 S.W.3d at 492. Thus, Phillips’s discrimination and retaliation claims are barred by sovereign immunity and the trial court lacks subject

- matter jurisdiction over the suit . Accordingly, we hold that the trial court

er red in denying UTMDA’s plea to the jurisdiction. We sustain UTMDA’s sole issue. Conclusion We vacate the trial court’ s order denying UTMDA’s plea to the jur isdiction and dismiss the case. See T EX
. R. A PP
. P. 43.2(e).

Sherry Radack Chief Justice Panel consists of Chief Justice Radack and Justices Jennings and Bland

.