Marie-Alda Gilles-Gonzalez, Ph.D v. University of Texas Southwestern Medical Center ( 2016 )

Affirmed and Opinion Filed July 22, 2016
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-16-00078-CV
MARIE-ALDA GILLES-GONZALEZ, PH.D, Appellant
V.
UNIVERSITY OF TEXAS SOUTHWESTERN MEDICAL CENTER, Appellee
On Appeal from the 162nd Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-14-09517
MEMORANDUM OPINION
Before Justices Myers, Whitehill, and Schenck
Opinion by Justice Schenck
Appellant Marie-Alda Gilles-Gonzalez, Ph.D filed suit against appellee University of
Texas Southwestern Medical Center (“UTSWMC”) for employment discrimination. The trial
court granted UTSWMC’s amended plea to the jurisdiction in part, dismissing Gilles-Gonzalez’s
claims. Because we conclude (1) we have jurisdiction over the appeal, and (2) Gilles-Gonzalez
filed her complaint with the Texas Workforce Commission more than 180 days after the date the
alleged unlawful employment practice occurred, we affirm the trial court’s judgment. See TEX.
LAB. CODE ANN. § 21.202 (West 2015) (statute of limitations).
BACKGROUND
Gilles-Gonzalez has been employed by UTSWMC since 2002 as a professor of
biochemistry. She is a tenured Associate Professor. In this lawsuit, she variously contends that
because she is female, black, of Haitian origin, and a spouse in a mixed-race marriage,
UTSWMC reassigned her laboratory space and transferred equipment previously dedicated to
her research.
Gilles-Gonzalez filed a charge of discrimination with the Texas Workforce Commission
(“TWC”) on November 15, 2013. In her charge she alleged that on or about January 22, 2013,
UTSWMC notified her that the laboratory space assigned to her for her research was to be
reassigned. Equipment dedicated to her research would be subject to transfer to other
laboratories or departments, and she was to remove her personal belongings from the space. Her
laboratory was disassembled and her equipment was offered to other researchers. She alleged
that UTSWMC’s actions were made on the basis of her gender, race, national origin, and mixed-
race marriage. In the box entitled “Date(s) discrimination took place, Earliest, Latest” on the
TWC charge form, Gilles-Gonzalez answered “January 22, 2013—ongoing.”
The TWC issued a dismissal and notice of right to file a civil action on June 30, 2014,
and Gilles-Gonzalez filed this suit on August 28, 2014, alleging violations of both the Texas
Labor Code and the Texas Constitution. UTSWMC filed a plea to the jurisdiction, alleging
among other arguments that Gilles-Gonzalez failed to exhaust her administrative remedies prior
to filing the lawsuit. UTSWMC pleaded that Gilles-Gonzalez’s charge of discrimination alleged
January 22, 2013, as the date on which the discriminatory action occurred, but Gilles-Gonzalez
did not file the charge until November 15, 2013, more than 180 days later and accordingly after
the applicable statute of limitations had run.
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Gilles-Gonzalez responded that UTSWMC’s actions occurred over the course of several
months and constituted a continuing violation, so that her charge of discrimination was timely.
She argued that relevant events took place within the 180-day period before she filed her charge.
In her affidavit accompanying her response, Gilles-Gonzalez did not make any reference to the
January 22, 2013 date alleged in her charge. Instead, she testified that she learned of
UTSWMC’s discriminatory actions in March, 2013, when students and colleagues began coming
to her laboratory to view her equipment. She stated that before this time she had not had any
communication with Dr. Steven McKnight, the chair of the department of biochemistry,
regarding any decision to disassemble her laboratory and reassign the space to other faculty.
Gilles-Gonzalez also testified that between March and May, 2013, she was led to believe
that her laboratory equipment would be reassembled in a different space. On May 3, 2013,
McKnight offered to restore some of her equipment, and on June 4, 2013, some of her equipment
and supplies were returned to her for her use. In a letter dated October 15, 2013, Gilles-
Gonzalez demanded that UTSWMC “restore my lab to a fully functional state without delay.”
The letter began, “On Thursday, March 28, 2013 between 2:30–3:30 p.m., there was a free-for-
all in my laboratory during which the faculty, mostly from Biochemistry, were invited by Ms.
Angela Houston, on behalf of Mr. McKnight, to remove all my equipment, supplies, and a wall
of shelves full of chemicals to their labs.” The letter continued, “Although I was told that my lab
was being relocated to make room for individuals from the Infectious Disease Department, at
least half of the space remains unused and in a shamble.” Although “most of the larger, tagged,
and still-intact equipment [was] recovered in May,” it was “crammed into a room of 400 square
feet” and “is not functional at all.” The letter detailed the specific equipment and supplies
Gilles-Gonzalez needed for her work, and stated that the dismantlement of her laboratory and the
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loss of eight months of work was “causing great damage to my well-respected 35-year career.”
UTSWMC did not respond to the letter.
Although not asserted as a basis for her current claim of discrimination, Gilles-Gonzalez
detailed in her affidavit other acts of alleged discrimination leading up to the reassignment of her
lab. In 2010, her base salary was lowered. In 2011, McKnight gave her a satisfactory faculty
review but initially ignored grants she obtained, and her pay was again reduced. In 2012, Gilles-
Gonzalez’s husband’s position in UTSWMC’s biochemistry department was eliminated due to a
reduction in force. McKnight gave Gilles-Gonzalez an unsatisfactory evaluation in March 2012,
without any input from her. And in August 2012, she was notified that her supplemental salary
for the 2013–14 term would be zero. She also testified that “[s]ince I was hired in 2002, the
[UTSWMC] department of biochemistry has employed no other black females, no other
Haitians, no black males, and currently has only five females out of thirty full and part-time
employees.”
After the parties filed amendments to the plea to the jurisdiction and response and Gilles-
Gonzalez amended her petition, the trial court granted UTSWMC’s plea in part, dismissing
Gilles-Gonzalez’s claims under the Texas Labor Code. This appeal followed.
APPLICABLE LAW AND STANDARD OF REVIEW
A plea to the jurisdiction is a dilatory plea; its purpose is to defeat a cause of action
without regard to whether the claims asserted have merit. Ollie v. Plano Indep. Sch. Dist., 383
S.W.3d 783, 789 (Tex. App.—Dallas 2012, pet. denied). A plea challenges the trial court’s
authority to decide a case. Heckman v. Williamson Cnty., 369 S.W.3d 137, 149 (Tex. 2012).
The existence of subject-matter jurisdiction is a question of law; thus, we review de novo the
trial court’s ruling on a plea to the jurisdiction. Tex. Dep’t of Parks & Wildlife v. Miranda, 133
S.W.3d 217, 226, 228 (Tex. 2004).
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The plaintiff has the burden to affirmatively demonstrate the trial court has subject matter
jurisdiction. Heckman, 369 S.W.3d at 150; Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852
S.W.2d 440, 446 (Tex. 1993). While we begin our analysis with the live pleadings, we may also
consider evidence relevant to the jurisdictional inquiry and must consider such evidence when it
is necessary to resolve the jurisdictional issue. Heckman, 369 S.W.3d at 150. “We construe the
plaintiff’s pleadings liberally, taking all factual assertions as true, and look to the plaintiff’s
intent.” Id. We must grant the plea to the jurisdiction if the plaintiff’s pleadings affirmatively
negate the existence of jurisdiction or if the defendant presents undisputed evidence that negates
the existence of the court’s jurisdiction. Id. “If a claim is not within a court’s jurisdiction, and
the impediment to jurisdiction cannot be removed, then it must be dismissed.” Am. Motorists
Ins. Co. v. Fodge, 63 S.W.3d 801, 805 (Tex. 2001).
A complaint alleging unlawful employment practices must be filed with the TWC “not
later than the 180th day after the date the alleged unlawful practice occurred.” TEX. LAB. CODE
ANN. § 21.202. The exhaustion of administrative remedies is a jurisdictional prerequisite to
filing suit for unlawful employment practices. Specialty Retailers, Inc. v. DeMoranville, 933
S.W.2d 490, 492 (Tex. 1996) (per curiam).
A plaintiff may not recover for “discrete acts of discrimination or retaliation” that occur
outside the limitations period. Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 105 (2002).
The limitations period begins when the employee is informed of the allegedly discriminatory
employment decision, not when that decision comes to fruition. Specialty Retailers, Inc., 933
S.W.2d at 493; see also Prairie View A&M Univ. v. Chatha, 381 S.W.3d 500, 507 (Tex. 2012)
(Specialty Retailers, Inc. is “controlling authority for interpreting when an unlawful employment
practice occurs”).
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In contrast to claims alleging “discrete acts” such as termination, failure to promote,
denial of transfer, or refusing to hire, see Morgan, 536 U.S. at 114, a plaintiff may also allege a
“continuing violation,” that is, “unlawful discrimination that ‘manifests itself over time, rather
than [as] a series of discrete acts.’” See Univ. of Tex. v. Poindexter, 306 S.W.3d 798, 808 (Tex.
App.—Austin 2009, no pet.) (quoting Wal-Mart Stores, Inc. v. Davis, 979 S.W.2d 30, 41–42
(Tex. App.—Austin 1998, pet. denied)). When “continuing violation” discrimination occurs,
“the 180-day filing clock does not begin to run until one of the involved discriminatory events
‘should, in fairness and logic, have alerted the average layperson to act to protect his or her
rights.’” Id. (quoting Davis, 979 S.W.2d at 42). “When a charge is timely filed as to one act of
discrimination, the doctrine of continuing violation expands the scope of those discriminatory
events that are actionable, as long as one of the events occurs within the 180-day period.” Davis,
979 S.W.2d at 41 (citing Glass v. Petro-Tex Chem. Corp., 757 F.2d 1554, 1560–61 (5th Cir.
1985)).1
DISCUSSION
A. Sufficiency of UTSMC’s pleadings
In her first issue Gilles-Gonzalez contends the trial court erred by granting the plea to the
jurisdiction “based on a condition precedent that Appellee failed to specifically deny.” Citing
rule 54 of the Texas Rules of Civil Procedure, Gilles-Gonzalez argues (1) she pleaded she has
met all conditions precedent and exhausted all administrative remedies; and (2) in its answer,
UTSWMC did not specifically deny any condition precedent she failed to meet. See TEX. R.
CIV. P. 54 (Conditions Precedent). She therefore concludes she was not required to prove she
exhausted her administrative remedies in order to recover on her claim, and “the trial court erred
1
Because one purpose of Chapter 21 of the Labor Code is “to bring Texas law in line with federal laws addressing discrimination, federal
case law may be cited as authority.” Specialty Retailers, Inc., 933 S.W.2d at 492; see also Waffle House, Inc. v. Williams, 313 S.W.3d 796, 798
n.1, 804 n.25 (Tex. 2010). As we have explained, Gilles-Gonzalez alleges claims that arise out of Chapter 21.
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in granting a plea to the jurisdiction based on Appellant’s alleged failure to satisfy a condition
precedent before filing suit.”
The question before the trial court and before this Court, however, is whether the trial
court lacks subject matter jurisdiction over Gilles-Gonzalez’s claims. See, e.g., Harris Cnty. v.
Sykes, 136 S.W.3d 635, 638 (Tex. 2004) (plea to jurisdiction is dilatory plea that seeks dismissal
of case for lack of subject matter jurisdiction). If Gilles-Gonzalez did not exhaust her
administrative remedies, then the trial court did not have jurisdiction over her employment
discrimination and retaliation claims, and it properly granted UTSWMC’s plea to the jurisdiction
with respect to those claims. See Santi v. Univ. of Tex. Health Sci. Ctr. at Houston, 312 S.W.3d
800, 804 (Tex. App.—Houston [1st Dist.] 2009, no pet.) (failure to timely file administrative
complaint deprives Texas trial courts of subject matter jurisdiction).
We may consider UTSWMC’s claim of immunity regardless of whether the trial court
ruled on the question of its jurisdiction and regardless of the specificity of UTSWMC’s denial of
conditions precedent. See Rusk State Hosp. v. Black, 392 S.W.3d 88, 95 (Tex. 2012) (immunity
from suit is issue of subject matter jurisdiction that may be raised for first time on interlocutory
appeal of unrelated ruling); Ollie, 383 S.W.3d at 789 (rejecting argument that appellees waived
their claim to immunity by filing general denial). And as in Ollie, UTSWMC pleaded its
governmental immunity as an affirmative defense, as well as pleading that Gilles-Gonzalez
failed to exhaust her administrative remedies. See id. The trial court properly considered the
question of its jurisdiction over Gilles-Gonzalez’s claims, and we may consider the same
question in this appeal. See Rusk State Hosp., 392 S.W.2d at 95. We decide Gilles-Gonzalez’s
first issue against her.
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B. Timeliness of Gilles-Gonzalez’s administrative complaint
In her second issue Gilles-Gonzalez contends that because she “timely filed an
administrative complaint under a continuing violation theory,” the trial court should not have
granted UTSWMC’s plea to the jurisdiction. Gilles-Gonzalez argues that UTSWMC’s actions
concerning her lab and lab equipment “were part of a series of related and equivocal actions
initiated and accomplished by [UTSWMC] over the course of a several month span, some of
which occurred in the 180 day period prior to the filing of Appellant’s charge.” None of
UTSWMC’s actions, she argues, were “discrete,” such as termination, failure to promote, denial
of transfer, or refusal to hire. See Morgan, 536 U.S. at 114. Instead, she argues, UTSWMC’s
actions were “more analogous to hostile environment cases,” involving repeated conduct that
does not occur on any particular day and may not be actionable on its own. See id. at 115.
Gilles-Gonzalez concedes she is not asserting a claim for a hostile work environment, but argues
that we should apply the “continuing violation” analysis nonetheless because all of the relevant
factors for a continuing violation are met.
To determine if Gilles-Gonzalez’s charge of discrimination was timely, we first consider
whether it was filed “not later than the 180th day after the date the unlawful employment practice
occurred.” TEX. LAB. CODE ANN. § 21.202(a). In Morgan, the Court explained that “[a] discrete
retaliatory or discriminatory act ‘occurred’ on the day that it ‘happened.’” Id. at 110. A party
must file a charge within 180 days of the date of the act or lose the ability to recover for it. See
id. “Discrete discriminatory acts are not actionable if time barred, even when they are related to
acts alleged in timely filed charges.” Id. at 113. The limitations period begins to run on the date
the discriminatory act occurred, not on the date “the victim first perceives that a discriminatory
motive caused the act.” Merrill v. S. Methodist Univ., 806 F.2d 600, 605 (5th Cir. 1986) (citing
Del. State College v. Ricks, 449 U.S. 250, 258 (1980)); see also Specialty Retailers, Inc., 933
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S.W.2d at 493 (limitations period begins when employee is informed of allegedly discriminatory
employment decision, not when that decision comes to fruition).
Gilles-Gonzalez contends that neither the January letter nor her required move and loss of
equipment in March were “discrete” acts that in logic and fairness would have alerted the
average layperson of the need to seek a lawful remedy. She argues that under the plain meaning
of “discrete,” the acts “did not have the same degree of permanence as those such as firing,” and
“were not independent of one another.” She also argues that the acts were not “complete on a
given day,” citing Ortega v. Housing Authority of the City of Brownsville, 572 F. Supp. 2d 829,
836 (S.D. Tex. 2008).2 And citing Abrams v. Baylor College of Medicine, 805 F.2d 528, 533
(5th Cir. 1986), she argues that there is a continuing violation where “the employer’s ambiguous
acts serve to obscure the existence of an unlawful policy and fail to alert the average lay person
to act to protect his rights,” and where “[plaintiffs] ha[ve] a reasonable basis for assuming” that
the employer’s decision is “not a final one.”
But courts have not limited “discrete” acts to the four listed in Morgan. In Cooper-Day
v. RME Petroleum Corp., 121 S.W.3d 78, 86 (Tex. App.—Fort Worth 2003, pet. denied), for
example, the court concluded that failure to provide the plaintiff with an assistant and assignment
of an extra region to her were “discrete acts.” See also Ptomey v. Tex. Tech Univ., 277 S.W.3d
487, 494 (Tex. App.—Amarillo 2009, pet. denied) (identifying “demotion, removal from office
facility, and reassignment of subordinate staff” as “discrete employment actions”); Santi, 312
S.W.3d at 806 (decision not to renew plaintiff’s contract and denial of right to license derivative
materials were discrete acts). And we disagree that UTSWMC’s acts were ambiguous or not
complete on a given day. The January letter explicitly informed Gilles-Gonzalez that (1) “the
2
In Ortega, the court applied the three-factor test we discuss below, and concluded the plaintiff had not established that the continuing
violations doctrine applied because “each event was sufficiently permanent to trigger a reasonable person to act to protect his rights.” Ortega,
572 F. Supp. 2d at 836.
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Dean’s Office has reassigned the office and laboratory space . . . occupied by you”; (2) “[t]hese
rooms must be cleared of all personal belongings on or before March 18, 2013”; (3) lab
equipment may be designated for transfer, placed in storage, or left in place and transferred for
use; and (4) a specific new office in a different building was designated for her use. In her
affidavit, Gilles-Gonzalez stated that “[i]n early March, 2013,” after students and other faculty
had come to her laboratory to view her equipment, she “received a notice that the research
laboratory that was assigned to me for my exclusive use was to be disassembled, and the space
reassigned to other faculty. Prior to this notification, I had not had any communication with Dr.
McKnight regarding this decision.” On March 12, 2013, Gilles-Gonzalez “requested that my
research equipment and supplies be stored for my use in the future,” and “complained that the
office space to which I was reassigned was not vacant.” And on March 28, 2013, the “free-for-
all” in Gilles-Gonzalez’s lab occurred in which other faculty members removed “all my
equipment, supplies, and a wall of shelves full of chemicals to their own labs.”
The record demonstrates that UTSWMC’s decision was made on or before January 22,
2013, brought to Gilles-Gonzalez’s attention no later than March 12, 2013, and acted upon no
later than March 28, 2013, according to Gilles-Gonzalez’s own charge and affidavit. As Gilles-
Gonzalez noted, these acts and communications all followed in the wake of other unambiguous
acts affecting her and her husband between 2010 and 2012. In all events, there was nothing
ambiguous about UTSWMC’s decision. UTSWMC acted upon and carried out its decision.
Gilles-Gonzalez was aware of the decision and UTSWMC’s actions were a direct result of it.
The reassignment of Gilles-Gonzalez’s lab and the transfer of her equipment was a discrete act
that “happened” on a specific date. See Morgan, 536 U.S. at 110; Ricks, 449 U.S. at 258 (“In
sum, the only alleged discrimination occurred—and the filing limitations periods therefore
commenced—at the time the tenure decision was made and communicated to Ricks. That is so
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even though one of the effects of the denial of tenure—the eventual loss of a teaching position—
did not occur until later.”).
But Gilles-Gonzalez contends that because UTSWMC took subsequent actions in an
attempt to mitigate the effect of its decision, there was no discrete act. She points to evidence
that (1) between March and May, she was led to believe that her lab equipment would be
reassembled in a different space; (2) in March, McKnight cleared some of his own lab space for
her use; (3) on May 3, 2013, McKnight offered to restore some of her equipment; and (4) on
June 4, 2013, some of her equipment was returned for her use. On a timeline in her appellate
brief, she also cites dates of May 21, 2013, when UTSWMC began work on collecting specific
equipment to be returned to her, and October 15, 2013, when she requested return of her
equipment to allow research under a grant she had obtained but UTSWMC did not respond. She
contends these subsequent actions established a continuing violation, so that her charge of
discrimination was timely filed.3
There are three factors courts consider to determine whether alleged discriminatory acts
are related closely enough to be continuing violations or whether they are “merely discrete,
isolated, and completed acts which must be regarded as individual violations.” Berry v. Bd. of
Supervisors of La. State Univ., 715 F.2d 971, 981 (5th Cir. 1983). The court in Berry identified
these factors as (1) subject matter, (2) frequency, and (3) degree of permanence. Id. The court
emphasized, however, that “[t]his inquiry, of necessity, turns on the facts and context of each
particular case.” Id. The court discussed the three factors “but by no means consider[ed them]
3
Gilles-Gonzalez does not claim that the actions of UTSWMC were so plainly misleading as to amount to an estoppel to the later assertion
of a limitations or jurisdictional bar. See, e.g., Fiengo v. Gen. Motors Corp., 225 S.W.3d 858, 861–62 (Tex. App.—Dallas 2007, no pet.)
(equitable estoppel is defense to limitations if plaintiff proves false representation or concealment of material fact, made with knowledge of true
facts, to party without knowledge or means of knowledge of true facts, with intention it be acted upon, and detrimental reliance). We accordingly
do not consider the issue.
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to be exhaustive.” Id. And as the court noted, “[c]ase law on the subject of continuing violations
has been aptly described as ‘inconsistent and confusing.’” Id. at 979 n.11 (citations omitted).
Gilles-Gonzalez contends that each of these factors is met. As to the first factor, the
Berry court considered whether “the alleged acts involve the same type of discrimination,
tending to connect them in a continuing violation.” Id. Gilles-Gonzalez argues that UTSWMC’s
actions do involve “the same type of discrimination, as they are limited to those reassigning,
removing, and incompletely restoring Appellant’s lab and lab equipment.” While we agree that
the specified actions pertained to Gilles-Gonzalez’s lab and equipment, we question whether
UTSWMC’s attempts to mitigate the effect of its decision by returning equipment and clearing
other lab space are “discriminatory” acts at all.
Next, the Berry test for “frequency” is whether the “alleged acts [are] recurring (e.g., a
biweekly paycheck) or are more in the nature of an isolated work assignment or employment
decision.” Berry, 715 F.2d at 981. Again, Gilles-Gonzalez relies on the return of some of her
equipment and the promise of other lab space as recurring discriminatory acts. As we have
discussed, however, UTSWMC made a single decision in January—that Gilles-Gonzalez’s lab
space was to be reassigned. As Gilles-Gonzalez explained in her charge of discrimination, the
disassembly of her laboratory “effectively prevented Complainant from performing important
research for which she was hired to do, and impedes her ability to teach.” It was UTSWMC’s
initial decision that affected Gilles-Gonzalez’s ability to perform her job, not subsequent
attempts to mitigate the effect of the decision or subsequent failures to reverse the decision.
Last, the Berry test for “degree of permanence” is whether the act “should trigger an
employee’s awareness of and duty to assert his or her rights, or which should indicate to the
employee that the continued existence of the adverse consequences of the act is to be expected
without being dependent on a continuing intent to discriminate.” Berry, 715 F.2d at 981. Gilles-
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Gonzalez argues that it was reasonable to believe “her supervisor’s own assurances” that the
decision made in January was not permanent, in light of the return of some of her equipment and
the clearing of his own lab space for her.
As we have discussed, Gilles-Gonzalez relies on Abrams in support of this argument. See
Abrams, 805 F.2d at 533 (continuing violation existed where “employer’s ambiguous acts serve
to obscure the existence of an unlawful policy and fail to alert ‘the average lay person to act to
protect his rights’”) (quoting Glass, 757 F.2d at 1561). In Abrams, Jewish physicians
complained that Baylor unlawfully excluded them from a lucrative rotation program in a hospital
in Saudi Arabia because of their religion. Id. at 530. The court held that although the doctors
filed their complaints more than 180 days after they were told that “visa problems” precluded
their inclusion in the program, the trial court could have concluded that neither doctor had
“enough information by which a ‘reasonably prudent person similarly situated’ could have
realized that he was the victim of illegal discrimination.” Id. at 534 (citing Glass, 757 F.2d at
1560). The court explained that that “a reasonably prudent employee will not necessarily
conclude that his employer is an illegal discriminator on the basis of one conversation and one at
least arguably nondiscriminatory act.” Id. The doctors were allowed to sue because their
rejection was linked to their final exclusion from the program within 180 days of their complaint.
Id.
In contrast, as Gilles-Gonzalez herself alleges, the 2013 reassignment of her lab followed
at least two years of actions she describes as discriminatory, including unjustified negative
evaluations, salary reductions, and her husband’s termination. As she argues in her brief,
discriminatory acts not made the basis for a timely charge “may constitute relevant background
evidence in a proceeding in which the status of a current practice is at issue.” See United Air
Lines, Inc. v. Evans, 431 U.S. 553, 558 (1977). She testified that since her hiring in 2002, the
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department of biochemistry had not employed any other black females, Haitians, or black males,
and employed only a handful of females in a staff of thirty. Given Gilles-Gonzalez’s knowledge
of this history, we conclude that a reasonably prudent person similarly situated could have
realized that she was the victim of illegal discrimination when she was given notice that her lab
and equipment were to be reassigned. See Abrams, 805 F.2d at 534.
Finally, the Abrams court also made clear that “to establish a continuing violation, a
plaintiff must show some application of the illegal policy to him (or to his class) within the 180
days preceding the filing of his complaint.” Id. at 533. Other courts have explained that “a
plaintiff must show an organized scheme leading to and including a present violation, so that it is
the cumulative effect of the discriminatory practice, instead of any discrete occurrence, that gives
rise to the cause of action.” See Cooper-Day, 121 S.W.3d at 86 (quoting Huckabay v. Moore,
142 F.3d 233, 238–39 (5th Cir. 1998)). Gilles-Gonzalez does not allege a “present violation”
that occurred in the 180 days preceding the filing of her complaint on November 15, 2013. The
events between May and October 2013 detailed above are effects of UTSWMC’s decision and
actions in January and March, not “present violations” that are the culmination of an organized
scheme. See Ricks, 449 U.S. at 258 (discrimination occurred when tenure decision was made
and communicated, even though effects of denial of tenure did not occur until later).
We conclude that UTSWMC’s decision to reassign Gilles-Gonzalez’s laboratory space
and equipment was a “discrete” act that occurred more than 180 days prior to the date she filed
her charge of discrimination. Because her charge was not filed by “the 180th day after the date
the alleged unlawful employment practice occurred,” Gilles-Gonzalez failed to exhaust her
administrative remedies, and the trial court had no jurisdiction of her claim. See Specialty
Retailers, Inc., 933 S.W.2d at 492. The trial court did not err by granting UTSWMC’s plea to
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the jurisdiction on Gilles-Gonzalez’s claims for violations of the Texas Labor Code. We decide
Gilles-Gonzalez’s second issue against her.
CONCLUSION
We affirm the trial court’s judgment.
/David J. Schenck/
DAVID J. SCHENCK
JUSTICE
160078F.P05
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
MARIE-ALDA GILLES-GONZALEZ, On Appeal from the 162nd Judicial District
PH.D, Appellant Court, Dallas County, Texas
Trial Court Cause No. DC-14-09517.
No. 05-16-00078-CV V. Opinion delivered by Justice Schenck;
Justices Myers and Whitehill participating.
UNIVERSITY OF TEXAS
SOUTHWESTERN MEDICAL CENTER,
Appellee
In accordance with this Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.
It is ORDERED that appellee University of Texas Southwestern Medical Center recover
its costs of this appeal from appellant Marie-Alda Gilles-Gonzalez, Ph.D.
Judgment entered July 22, 2016.
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