### 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. 03-14-00071- CV

Austin In dependent S chool District , Appellan t

v. Andrew L ofters, Appellee

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 419 TH JUDICI AL DISTRICT NO. D-1 -GN-0 9-0 0307 8, H ONO RAB LE ERIC SH EP P ERD, JUDGE P RESIDING

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

Andre w L ofters sued his former employ er, t h e Austi n I ndepende nt School District (AI SD), all e g in g r a ce discrimination and reta liation in violation of the Texas Commi ssion on Human Rights Act ( TCHRA). See Tex. L ab. Code §§ 21.051, .055. AI SD filed a plea to the jurisdiction,

asser ting in rele vant part that the trial court lacke d subject-matter jurisdiction over L ofters’ s claims beca use he failed to exhaust his administrative reme dies by timely filing a char g e of discrimination

o r r e ta li a ti o n . T h e tr ia l c o u

r t d e n ie d th e p le a , a

n d A I SD f il e d th is a p p e a l. I n f o u r is s u e s , A I SD a

r g u e s that the trial court err ed in deny ing its plea to the jurisdiction beca use (1) the jurisdictional evidenc e conclusively established that L ofters f ailed to comply

with a jurisdictional prer equisite to suit and (2) L ofters could not establish a prima fac ie case of rac e discrimination or reta liation and, as a
conseque nce, could not demonstrate that AI SD had waived its g overnme ntal immunit y . We will

re v er s e t he trial court’s order deny ing the plea and rende r judgme nt dismiss ing the case for lack of jurisdiction.BACK GR OUND
I n 2 0 0 4 , L ofters was hired by AI SD as one of four assistant principals at Austin
Hi gh S ch o o l

. I n the fall of 2006, L ofters applied for admission to a doctora l deg ree prog ram i n Communi ty College L eade rship offe red by the University of Texas’s College of Educa tion. L ofters

was admitted to the prog ram and beg an attending classes in the summer of 2007. Acc ording to his petition, L ofters was told in March 2007, bef ore he beg an attending

classes, tha t he would be a ble
to chang e his work schedule to acc ommodat e h i s cl as s s chedule

. L ofters alleg ed that in Aug ust 2007, the Austin Hig h School principal informed him that he would not ag ree to an altere d work schedule afte r all, and require d L ofters to choose betwee n the doctora l deg ree p ro gra m o r his assistant principal position at Austin Hig h. L ofters chose to attend the prog ram and, on September 5, 20 0 7 , resig ned from his assistant principal job and acce pted a part-time posit ion as a teac her at
J ohnston High School’s Tw ilight School Prog ram, wor king f rom 4:30-8:30 p.m.
L o fters alleg ed that in J anuar y 2008, he lear

ned that there wer e other AI SD employ ees who h ad been permitted to attend prog rams simil ar to the doctora l deg ree prog ram L ofters was attending and continue working at their schools. Acc ording to L ofters, these other nonAfric an-A merica

n em p l o y ees wer e allowed to rea rra ng e their work schedule s so that they could attend cla sses while maintaining their administrative positions.

On J une 4, 2008, the Texas Commi ssioner of Educa tion announced that J ohnston Hig h School would be clos ed due to the campus’s failure , over sever al y ear s, to meet Texas Educa tion Ag ency standards. The nex t day , L ofters sent a letter to AI SD’ s E x ec u t i v e Director of
Human Resource s informing her that he believed he was discriminated ag ainst when he was denied

2“leave and flexibi lity of employ ment to attend a doctora l deg ree prog ram at the University of Texas.”
On J une 11, 2008, all of the Twilight School Prog ram teac hers, including L ofters, wer e notified that their posi tions had been elim inated, effec tive J une 5, d u e to the closure of J ohnston Hig h School.
Acc ording to L ofters’ s petition, the other teac hers whose positions wer e eliminated we re given
“a better opportunity and differ ent alt erna tives to fac ilitate their continued employ ment with the district” while he w as g iven “no a ssistance a nd was not enc ourag ed to see k another position.”
L ofters filed a char g e of rac e discrimination with the EEOC and the Texas Workforce Commi ssion Ci vil Ri g hts Division on J uly 25, 2008. His char g e stated:

On J anuar

y 28, 2008, I discovere d that Whit e adm i nistrative employ ees wer e permitted by the superintenden t to attend PhD classes at the University of Texas during the work day , without any adjustment to their jobs, pay or wo rk schedule

. When I had orig inally requ es t ed t h e same sort of arr ang ement, in Aug ust of 2007, I was advised that the superintende nt does not allow administrative employ ees (which I was) to a ttend PhD classes during the school day

. I was required to leave my position as an Assistant Principal at Austin Hig h School and teach half time so I could attend the doctora l prog ram as a result I lost about $3,000

. 0 0 p er a [si c] month in wag es.

L ofters a mended his cha

rg e on De cembe r 26, 2008, to asser t a claim of r etaliation, stating that:

On or about J une 5, 2008, I was discharg ed from my position as a Tea cher

. I believe that this action occur

red in reta liation for m y orig inal complaints to the employ er of Employ

ment Discrimination b ased on my Race (B lack) when I was denied p er mission to attend PhD classes at the University of Texas during the work d ay , when other

administrative employ ees w ho wer e White were permitted to attend.

After the EEOC indicated that it intended to dismiss the char g e of discrimination, L ofters’ s attorney
reque sted a rig ht to sue letter and the underlying litig ation was initiated.

3L ofters sued AI SD alleg ing discrimination and reta liation i n v iolation of the

TCHRA. See id. AI SD filed a plea to the jurisdiction asser ting that the court lacke d subject-matter jurisdiction over the claims beca use L ofters failed to comply with the jurisdictional prer equisite of timely filing an administrative complaint, as require d by statute. See id. § 21.202(a)

. Both L ofters and AI SD submitt ed evidenc e rela ting to the timeliness of filing the char g e of discrimination. After a hea ring , the trial cour

t denied the plea

to the jurisdiction and this appeal followe d.

STANDARD OF REVIEW Whether a court h as subject-matter jurisdiction is a question of law. See Texas Dep’ t of P arks & W

ildlif e v. Miranda , 133 S.W .3d 217, 226 (Tex. 2004). I n deciding a plea to the jurisdiction, we may not weig h the merits of the plaintiff’s claims, but must co n s i d er only the plaintiff’s pleading s, const ru ed i n t h e plaintiff’s favor , as well as evidenc e pertinent to the jurisdictional inquiry

. County of Cameron v. Brown , 80 S.W .3d 549, 555 (Te x . 2 0 0 2 ). I f a plea
to the jurisdiction challeng es the exis tence of jurisdictional fac ts, the court consi ders rele vant evidenc e submitt ed by the parties when nece ssary to resolve the jurisdic tional issue raised. See Miranda , 133 S.W .3d at 227. The jurisdictional issue in the pre sent ca se conc erns the timing and
content of L ofters’ s commun ications with the EEOC. Thus, the jurisdictional evidenc e does not impl i ca t e t h e merits of the case and the rele vant jurisdictional fac ts wer e undisputed. When the jurisdictional fac ts do not implicate the merits and are undisputed, the court makes the jurisdictional deter mination as a matter of law based solely on those undisputed fac ts. Id. at 228. We revie w that deter mination de novo. Id.

4DISCUSSIO N
To bring a suit for unlawful employ ment prac tices, a plaintiff must first have filed an administrative complaint with the EEOC or t he TCHR “not l ater than the 180th day afte r t he date the alleg ed unlawful employ ment prac tice occur

red.” See Tex. L ab. Code § 21.202(a)

. The 180-day period beg ins to run “when the employ ee is infor med of the alleg edly discriminatory employ ment decision.” Specialty Retailers, Inc. v. DeM oranville , 933 S.W .2d 490, 492 (Tex. 1996) (citi ng Delaware State Coll. v. Ricks , 449 U.S. 250, 258 (1980))

. Timely filin g o f an ad m inistrative complaint is a mandatory and jurisdictional prer equisite to filing suit. Prairie View A & M Univ. v. Chatha , 381 S.W .3d 50 0 , 5 0 3 (Tex

. 2012); Specialty Retailers , 933 S.W .2d at 492. Fa ilure to exhaust the TCHRA’s administrative reme dies is a jurisdictional defe ct. See City of W aco v. Lopez , 259 S.W .3d 147, 149 (Tex. 2008).

Race Discrimi nation Claim

The adverse employ

ment decision t hat i s the bas i s of L ofters’ s rac e dis crimination claim is AI SD’s ref

usal to permit him to have a work schedule that would p er m i t h i m to attend the doctora l deg ree classes during the day

. L ofters was informed of AI SD’s decision in this reg ard

on Aug ust 27, 2007. L ofters resig ned from his position as assistant principal at Austin Hig h School

on September 5. Thus, even using the later of the two dates, in order for L ofters’ s char g e of d is c r im in a

ti o n to b e f

il e d ti me ly , it mu s t h a

v e b e e n f il e d o n o r b e f

o r e M a r c h 3 , 2 0 0 8

. I t is u

n d is p u te d that the cha

rg e wa s not filed by

that date. 1

L ofter s contends that filing was accomplished on J uly 15, 2008, when he sent a letter to 1 the EEOC. AI SD contends that filing was not acc omplished until J uly 25, 2008, when L ofters filed 5L ofters does not dispute that he lear ned o n August 27 that AI SD had denied his
reque st for a schedule that would acc ommodate the doctora l deg ree prog ram or that the denial was the rea son for his r esig nation on September 5. I n employ ment discrimination case s broug ht unde r chapte r 21, the 180-day period beg ins t o run “whe n the employ ee is informed of the alleg edly d is c r im in a

to r y e mp lo y me n t d e c is io n . ” S

p e c ia lt y R e ta il e r s , 9 3 3 S. W. 2 d a

t 4 9 3 ( c it in g R ic k

s , 4 4 9 U

. S.
at 258). “[T] he date of the discriminatory act controls, no t s o m e later date when the employ ee discovers the act is discriminatory .” See Abbot t v
. R a n k in , N o. 06-07-00149- CV, 2008 WL 5156453,
at *3 (Tex. App.—Texarkana Dec

. 10, 2008, pet. denied) (mem. op.) (citing Merrill v. Southern
M e th o d is t U n iv

. , 8 0 6 F

. 3 d 6 0 0 , 6 0 5 ( 5 th Ci r . 1 9 8 6 ) ) ; s e e a ls o O g le tr e e v
. G le n R o s e I

n d e p
. S c h

. D is t. , 3 1 4 S. W. 3 d 4 5 0 , 4 5 5 ( T e x. A p p . — Wa c o 2 0 1 0 , p e t. d e n ie d ) ( n o ti n g th a t li mi ta ti o n s p e r io d f

o r s e c ti o n 1983 g ender discrimination case beg an to run when plaintiff was terminated, not when she lear ned th a t ma le te a c h e r w a s tr e a

te d d if f e r e n tl y ) ; A c o s ta v
. M

e m ’ l H e r m a n n H o s p
. S y s
. , N o . 1 4

- 0 7

- 0 0 0 0 1

- CV , 2008 WL 190052, at *4 (Tex. App.—Houston [14t h Dist.] J an. 22, 2008, pet. denied) (mem. op.) (noting that, under Title VI I , claimant’s knowledg e of discriminatory act, not knowledg e that act had discriminatory motive, trig g ers limit ations period and apply ing that rea soning to limit ations period for health car e liability claim premised in part on discriminatory denial of epidura l anesthe sia). This is consistent with fede ral courts’ construction of the limit ations period for Title VI I discrimination claims. See, e.g. , Pache co v. Rice , 966 F.2d 904, 906 (5th Cir. 1992) (holding that Title VI I require s that notice of claim be filed within thirty day s of discriminatory act, not claimant’s knowledg e that

his ac t u al ch arge of complaint. This dispute is not rele vant to the jurisdictional inquiry beca use either da te is well bey ond the 180-da y deadline f

or filing an administrative c omplaint. 6act had discriminatory motive). Thus, beca use L ofters knew of the alleg edly discriminatory act on Aug ust 27, the 180-day filing period beg an to run that day , not on J anuar y 28, 2008, the date he came to believe that AI SD’s decision der ived from a discriminatory

motive. Despite this prec edent, L ofters arg ues that the “discove ry rule” should apply to this case , by wh i ch we u nderstand him to mean that the limit ations period for his claim of rac e discrimination should not have beg un to run until he “discove red” the alleg edly discrim i n atory motive for ref

using his reque st for flexibl e scheduling

. I n L ofters’ s view the “unlawf ul employ ment
prac tice” tha t trigg ers the 180-day filing pe riod is not the adver se employ ment decision alone , but th a t d e c is io n c o u

p le d w it h h is k n o w le d g e th a

t it w a s ma d e w it

h d is c r im in a

to r y in te n t. E v e n if L o f

te r s is corr ect, an issue we need not decide , we would decline to apply the “discove ry rule” to his claim.

The discovery rule applies to cer tain cate g ories of case s in which a p l aint iff does
not immediately rea liz e that he has suffe red an injury as a result of the defe ndant’s conduct. When
t h e discovery rule applies, the cause of action is deeme d not to acc rue, and conseque ntly th e limit ations period is deeme d not to have commence d, u n t il the pl aintiff “knows or i n the ex erc ise

o f r e a s o n a b le d il ig e n c e s h o u ld h a

v e k n o w n o f th e w r o n g f

u l a c t a n d r e s u lt in g in

ju r y . ” S e e S

. V

. v
. R

. V

. , 933 S.W .2d 1, 4 (Tex. 1996). The supreme court has explained that application of the discovery rule is ju s ti f ie d in c a s e s in w h ic h th e in

ju r y is b o th “ in

h e r e n tl y u n d is c o v e r a

b le ” a n d “ o b je c ti v e ly v e r if

ia b le

. ”
S e e id

. a t 6

. T h u s , th e d is c o v e r

y r u le d e f e r s a c c r u a l o f a c a u s e o f a c ti o n in c a s e s in w h ic h “ th e a ll e g e d
wrong ful act and resulting injury wer e inhere ntly undiscovera ble at the time they occur

red but may be objectively verifie d.” Id. An injury is inhere ntly undiscovera ble if “it is by nature unlikely to be discovere d within the presc ribed limit ations period despite due diligenc e.” Computer Assocs. Int’l

7v. A ltai, Inc. , 918 S.W .2d 453, 456 (Tex. 1996). The require ment that the injury be “ob j ec t i v el y verifia ble” ensure s that “the bar of limit ations cannot be lowere d for no other rea son than a swea ring match betwee n parties over fac ts and betwee n experts over opinions.” S.V. , 933 S.W .2d at 15. The
two elements of inhere nt undiscovera bility and objective verifia b ility “bala nce the conflicting policies in statutes of limit ations: the benef its of prec luding stale or spurious claims versus the risks of pre cluding meritorious claims that happe n to fall outside an ar bitrarily set period.” Id. at 6.
I n this case the alleg ed employ ment discriminatio n was neither “inher ently undiscovera

ble” nor “objec t i v ely verifia ble” such that we could conclude that the discovery rule

a p p li e s . T h e r e is n o th in g in th e r e c o r d to s u g g e s t th a t, in th e e xe r c is e o f r e a s o n a b le d il ig e n c e , L o f

te r s could not have discovere d the fac ts fo rm ing the basis for his belief that AI SD’s decision was made with a discriminatory motive. See Texas Dep’ t of Protecive & Regulatory Servs. v. Lynn , No. 03-04-00635- CV, 2005 WL 1991809, at *7 n.1 6 (T ex . Ap p .—Austin Aug

. 16, 2005, pet. denied) (mem. op.) (plaintiff’s statement that she did not discover rac e-ba sed motive until one y ear afte r termination “fa lls short of demonstrating that the nature of [her] injury , rac ial discrimination,

w a s s u c h th a

t it w a s in h e r e n t l y u n d is c o v e r a

b le d u r in g th e li mi ta

ti o n s p e r io d d e s p it e h e r d

u e d il ig e n c e ” )

. More importantly , though, the rec ord does not show that the alleg ed rac e discrimination in this case is o b je c ti v e ly v e r if

ia b le

. Co m p a r e G a d d is v
. S m it h , 4 1 7 S. W. 2 d 5 7 7 , ( T e x. 1 9 6 7 ) ( p r e s e n c e o f s p o n g e in plaintiff’s body and ex p l an at i o n for how it g ot there wer e not in dispute and fac ts upon which
l i ab ility was asser

ted wer e demonstrated by direc t, phy sical evidenc e) with Robinson v. W ea ve r , 550 S.W .2d 18 (Tex. 1977) (dec lining to apply discovery rule wher e liability had to be established by expert testimony

that could not supply objective verifica tion of wrong and injury

nece ssary

for

8rule’s application). L ofters has not identified any evidenc e capa ble of objectively verify

ing that
AI SD denied his reque st for a schedule chang e beca use of his rac e. The discovery rule thus would have no a pplication to this case.
L ofters also arg ues that equitable tolling should apply to extend the 180-day filing period beca

use “he did not know that th e i n j u ry was cause d by a discriminatory action until he lear ned that other people wer e g iven permission when he was not.” The e quitable tolling doctrine permits a plaintiff to avoid the bar of the statute of limit ations if, despite al l due diligenc e, he is unable to obtain vital information bear ing on the exis tence of his claim. See In re United Servs. Auto
Ass’n , 307 S.W .3d 299, 311 (Tex. 2010). Texas courts have consistently declined to apply equitable tolling conce pts to jurisdictional filing periods. See Goss v. City of Houston , 391 S.W .3d 168, 174 (Tex. App.—Houston [1st Dist.] 2012, no pet.) (“[W] e hold that the equitable tolling doctrine does
not apply to claims broug ht ag ainst go v er n m en tal entities under the TCHRA.”); Czerwinski v. University of Tex. H

ealth Sci. Ctr. , 116 S.W .3d 119, 123 (Tex. A pp.—Houston [14t h Dist.] 2002, pet. denied) (“We hold the doctrine of eq uitable estoppel is not applicable beca use the statutory filing require ments are jurisdictional.”); Guev ara v. H.E. Butt Groc ery Store , 82 S.W .3d 550, 552 (Tex. App.—San Antonio 2002, pet. denied) (re fusing t o ap p ly doctrine of equitable tolling to 180-day
fi l i n g period in ag e discrimination suit beca use timely filing of complaint under TCHRA is “manda tory and jurisdictional”); see also In re United Servs. Auto Ass’n , 307 S.W .3d at 311 (noting that equit able tolling is court-c rea ted doctrine that “may not apply if a statutory require ment is deeme d jurisdi ct i onal”) ; Cada v. Baxter Healthcare Corp. , 920 F.2d 446, 451 (7th Cir. 1990) (obser ving that neither equi t able estoppel nor equitable tolling applies to jurisdictional statutes

9of limit ations). L ofters’ s relianc e on Davis v. Autonation USA Corp. , 226 S.W .3 d 4 8 7 (T ex .

App.—Houston [1st Dist.] 2006, pet. denied) , and W al-Mart Stores, Inc. v . Davis , 979 S.W .2d 30 (Tex. App.—Austin 1998, pet. denied) , as authority for his position that eq u i t ab l e tolling should apply here is misplaced. Both Davis and W al-Mart Stores wer e conce rned with identify ing the circ umstances i n whi ch the “continuing violation” doctrine could apply to eff ectively defe r the

acc rual date of an employ ment discrimination claim when an unlawful employ ment discrimination
prac tice manife sts its elf ove r time rathe r than a s a ser ies of discre te ac ts.

Moreove r, even wer e we to conclude that the equitable tolling doctrine could apply
to a jurisdictional filing require m en t , s u ch appli cation would not save L ofters’ s claim. L ofters

asser ts that he lear

ned fac ts leading him to believe t h at AIS D’ s decision was discriminatory on J anuar y 28, 2008. This was 35 day s befor e the expiration of the 180-day filing period on Marc h 3. 2 Despite having plenty of time afte r J anuar y 28 to timely file his char g e of discri m i nation, L ofters waited 179 day s to do so and offe rs no explanat i on or excuse for the delay

. We ag ree with the following observa tion made by a fe dera l court addr essing a situation simil ar to this one:
We do not think equitable tolling should bring a bout an automatic e x tension of the statute of limit ations by the leng th of t h e tolling period or any other definite term. I t is, afte r all, an equitable doctrine. I t g ives the plaintiff extra time if he needs it. I f h e doesn’t need i t there is no basis for depriving the defendant of the protectio n o f the statute of limit ations. Statutes of limit ations are not arbitra ry o b s t acles to the v in d ic a ti o n o f ju s t c la im s , a

n d th e r e f o r e th e y s h o u ld n o t b e g iv e n g r u d g in g a p p li c a ti o n .

Ag ain, the Marc h 3, 2008 deadline a ssumes the 180-day filing pe riod beg an to run whe n 2 L ofters r esig ned fr om his job as an assistant principal at Austin Hig h School. 10Cada , 920 F.2d at 452-53. Even wer e we to ag ree that L ofters, despite the exercise of due diligenc e,

was unable to obtain information nece ssary to aler t him of AI SD’s discriminatory con duct until
J anuar y 28, he had the ne cessa

ry information bef

ore the 180-day

filing pe riod expired, could have filed a char g e of discrimination (a one-pa g e form) within that period of time or, in any event, sooner th a n th e 1 7 9 d a

y s h e w a it e d to f

il e it , a n d s h o u ld h a

v e d o n e s o . B e c a

u s e L o f te r s f a il e d to f il e h is c h a r g e within a rea sonable time, equitable tolling, even if it applied to this case , would not extend the filing period the a dditional 179 day s require d to make L ofters’ s char g e of discr imination ti mely filed.

. We hold that L ofters’ s char g e of rac e discrimination was not filed within the 180-day period required by

section 21.202(a ). The trial court did not have jurisdiction over this claim and

err ed by deny ing A I SD’s plea to the jurisdiction. We sustain AI SD’s first appe llate issue. 3

Retaliati on The original charg e of discr imination L ofters f iled on J uly 25, 2008, did not alleg e
reta liation but complained solely of rac e discrimination. On Dec emb er 26, L ofters amende d his char g e to include the f

ollowing a lleg ation:

On or about J une 5, 2008, I was discharg ed from my position as a Tea cher

. I believe that t h i s action occur

red in reta liation for my orig inal complaints to the employ er of Employ

ment Discrimination based on my Race (B lac k) when I was denied permission to attend PhD classes at t h e University of Texas during the work day , when other

administrative employ ees w ho wer e White were permitted to attend. 4

Having sustained this issue we need not addre ss AI SD’s third issue in which it asser ts that 3 L ofters did not establish a pr ima fac ie ca se of r ace discrimination. L ofters lear

ned of the decision to discharg e him, along with the other Twilight School 4 Prog ram tea cher s, on J une 11, 2008. 11Retaliation is a differ ent leg al theory from rac e-ba sed discrimination. Davis v. Education Serv. Ctr. ,

62 S.W .3d 890, 894 (Tex. App.—Texarkana 2001, no pet.). “Ge nera lly , amendmen t s t h at raise

a new leg al theory do not ‘re late back’ to an orig inal char g e.” University of T ex
. v. Poindexte r , 306 S.W .3d 798, 809 (Tex. App.—Austin 2009, no pet.) (quoting Manning v. Chevron Chem. Co.,
LLC , 332 F.3d 874, 878 (5th Cir. 2003)). L ofters’ s reta liation char g e does not rela te back to his 5
J uly 25, 2008 char g e of discrimination and was filed at least 18 day s afte r the expiration of the 180- day filing pe riod for tha t claim. See Tex. L ab. Code § 21.202(a ).

L ofters attempts to sa

ve his r etaliation claim by contending in the district c ourt and in this C ourt that the reta liatory conduct was not his discha rg e fr om J ohnston High School (w hich he conce des resulted from the TEA’s decision to close the campus) but A I SD’s subsequent failure
to assist him in finding other employ ment within the district as h e al l ege d it did with other, presumably non-Afr ican- Americ an, employ ees. Even if t h i s were proper ly char acte rized as an actionable adver s e em p l oy ment action, we hold that L ofters did not exhaust his administrative

reme dies for such a cla i m b ec ause it cannot fairly be rea d to be included in the char g e he filed
on Dec ember

26. 6

I n Poindexte r this Court noted that an excep t i on to this rule exis ts when an employ er 5 reta liates ag ainst an employ ee “for the very act of filing an employ ment discrimi n at i o n claim.” University of Tex. v. Poindexte r , 306 S.W .3d 79 8 , 8 0 9 n.9 (Tex. App.—Austin 2009, no pet.). L ofters had not filed his char g e of rac e discrimination at the time he was discharg ed as a teac her at J ohnston High School. Conseque ntly , this ex ception does not a pply

. Evidence that o t h er simil arly situated employ ees wer e g iven assistance in finding new 6 positions within AI SD, standing alone, would not support a claim of reta liation under the TCHRA. A p ri m a fac ie reta liation case require s proof that an employ ee suffe red an “adve rse employ ment a c ti o n ” a s a r e s u lt o f e n g a g in g in p r o te c te d a c ti v it y . S e e P to m e y v
. Te x a s Te c h

. U

n iv

. , 2 7 7 S. W. 3 d 4 8 7 , 489 (Tex. App.—Amar illo 2009, pet. denied)

. An “adve rse employ ment action” means “an ultimate employ ment decision, such a s hiring, g ranting leave , discharg ing, promoting, and compensa ting.” See id. at 492 (quoting Foley v . University of Houston Sys. , 355 F.3d 333, 340 ( 5th Cir. 2003)). 12We construe a char g e of d i s cr i m i nation liberally , and “look slightly bey ond its

four corne rs, to its substance rathe r than its label.” County of Travis ex rel. Ha mi lton v. Manion , No. 03-11-00533- CV, 2012 WL 1839399, at *4 (Tex. App.—Austin May 17, 2012, no pet.) (mem. op.) (quoting Pache co v. Mineta , 448 F.3d 783, 788-89 (5th Cir. 2006)). The char g e must “conta in

an adequate fac tual basis so that it puts the employ er on notice of the exis tence and nature of the char g es.” Bartosh v. Sam Houston State Univ. , 259 S.W .3d 317, 321 (Tex. App.—Texarkana 2008, pet. denied)

. L oft er s ’s char g e, which specific ally ref ers to his discharg e from employ ment as the alleg edly reta liatory act, would not put AI SD on notice that he was complaining that AI SD reta liated
ag ainst him by

failing to assist him in finding a nother job within the school district.
L o ft er s contends that we should look not only to the charg e, but also to a letter hi s counsel sent to the EEOC on November 21, 2008, stating tha t L ofters w anted to a mend his c harg e to include alleg ations of re taliation. The letter sta tes:

After revie wing my rec ords, I have found that [AI SD] rele ased me from my teac hing position soon afte r I informed them that I felt they had discriminated ag ainst me. The human resour ce office ’s justification for rele asing me from the teac hin g p o s ition was that t h e p osition was temporar y . After revie wing the human resour ce posting descr iption of the teac hing position, I have found that the position was never , at any time, describe d as tempora ry .

Even wer e we to consider this letter as part of t h e ch ar ge o f discrimination, an issue we need not decide , it does not serve to exhaust administrative reme dies for a claim that AI SD reta liated ag ainst
L ofters by

failing to provide assistance in finding another job. Ag ain, the complaint is direc ted at his discharg e, not any subsequent events. This letter did not put AI SD on notice of the nature of the char g e he now

seeks to pursue

. See M

anion , 2012 WL 1839399, at *4.

13We conclude that L ofters failed to exhaust his admi n i s trative remedies as require d

to assert his re taliation claim. We sustain AI SD’s second a ppellate issue. 7

CONCLUSION
Be cause L ofters failed to exhaust his administrative reme dies as to his claims of rac e discrimination and reta liation, the trial court lacke d subject-matter jurisdiction o v er t h ese claims.
We reve rse the tr i al co u rt ’s order deny ing AI SD’s plea to the jurisdiction and rende r judgme nt dismiss ing L ofters’ s claims for lac k of jurisdiction.

__________________________________________ David Pury ear , J ustice
Be fore J ustices Pury ear , Pemberton, and F ield
Reverse d and Rende red Filed: Apr il 1, 2015

Having sustained this issue we need not addre ss AI SD’s fourth issue in which it asser ts that 7 L ofters did not establish a pr ima fac ie ca se of r etaliation. 14