City of Pasadena v. Janet Poulos ( 2023 )

Opinion issued October 31, 2023
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-22-00676-CV
———————————
CITY OF PASADENA, Appellant
V.
JANET POULOS, Appellee
On Appeal from the 281st District Court
Harris County, Texas
Trial Court Case No. 2022-09772
MEMORANDUM OPINION
Janet Poulos sued her employer, the City of Pasadena, and asserted claims
under the Texas Commission on Human Rights Act (“TCHRA”) for hostile work
environment based on race, retaliation, and racial discrimination. The City moved to
dismiss Poulos’s claims under Rule of Civil Procedure 91a, arguing that the claims
lacked a basis in law because the City’s governmental immunity had not been
waived. The trial court denied the City’s motion to dismiss.
In two issues, the City argues that the trial court erred by denying its Rule 91a
motion to dismiss because (1) Poulos did not timely file suit under the TCHRA, and
(2) the only timely claims that Poulos asserted in her charge of discrimination are
not actionable under the TCHRA. We affirm in part and reverse and render judgment
in part.
Background
Janet Poulos is Mexican American and has been employed by the City of
Pasadena as a Customer Service Assistant in a call center since 2002. Beginning in
2015, she allegedly “observed bias and favorable treatment of white employees
when she got assigned a new supervisor” and “this discrimination has continued
throughout her employment.” Poulos alleged that her supervisor allowed the two
white employees in the department “more leniency and privileges” than the three
Mexican American employees. Poulos was allegedly subjected to “closer scrutiny
than the treatment received by her white co-workers,” such as being asked by her
supervisor whether she was “logged in” to the call system, while one of her white
co-workers was not logged in and was not questioned in this manner. Poulos’s
supervisor also allegedly yelled at her about time keeping and documentation.
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In October 2019, Poulos made a complaint to Human Resources about her
supervisor’s harassment “and the unequal treatment she was experiencing.”
However, no action was taken, and “her director . . . dismiss[ed] her concerns and
threaten[ed] to issue her a formal write up for voicing the inequality she was facing.”
Poulos alleged that one of her white co-workers was not disciplined for “fail[ing] to
log into the system and assist with the incoming calls” or for sleeping in the office
during work hours. Instead, this co-worker was promoted to a supervisory position.
Poulos also alleged that her supervisors subjected her to more stringent
requirements concerning leaving work for medical appointments and taking
restroom breaks during work hours. For example, in March 2021, the assistant
supervisor of the department allegedly instructed Poulos to cancel a cardiologist
appointment that she had scheduled weeks in advance and about which she had
informed her supervisors. The next day, one of her white co-workers asked to leave
work early and this request was granted, even though the co-worker had not provided
any advance notice. Poulos’s supervisor also allegedly required Poulos to ask
permission from the assistant supervisor every time she needed to use the restroom,
but none of her white co-workers were subjected to this same requirement.
In June 2021, the assistant supervisor allegedly refused Poulos’s request to go
to a medical appointment prior to a scheduled surgery. The assistant supervisor
allegedly “attempted to intimidate” Poulos by “interrogating her about the necessity
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of her surgical procedure” and discussing Poulos’s personal medical information in
front of co-workers. Poulos returned from medical leave in late July 2021 and was
placed on “light duty” due to medical restrictions. Less than two weeks later,
Poulos’s supervisor instructed her to lift “water bottle crates and refill the
refrigerator.” When Poulos responded that she could not do so due to her medical
restrictions, her supervisor “rudely dismissed” her concerns, “berated her publicly,”
and accused Poulos of being able to lift the water bottles because she carried a purse.
Poulos filed a charge of discrimination with the Equal Employment
Opportunity Commission (“EEOC”) and the Texas Workforce Commission–Civil
Rights Division (“the Commission”) on October 13, 2021. Poulos alleged that she
has “continued to face additional harassment from her supervisors” following her
filing of the charge. She has allegedly been assigned additional work without
compensation, has “continue[d] to be closely monitored with her bathroom breaks,”
and has been “harassed for any breaks or requests for time off.” Poulos alleged that
she received a right to sue letter from the EEOC on November 18, 2021. She also
alleged that she has “requested [that] the Texas Workforce Commission Civil Rights
Division issue Complainant’s ‘Right to File Civil Action.’”
Poulos filed suit against the City on February 16, 2022, and asserted three
claims under the TCHRA. Poulos asserted a claim for hostile work environment
based on her race, alleging that her supervisors would monitor and interrogate her
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more than her white co-workers, she was “held to a different standard for her
attendance and break times” compared to her white co-workers, and she was
“verbally assaulted by her supervisor and endured hostility and yelling on a frequent
basis,” while her white co-workers were not treated in the same manner.
Poulos also asserted a claim for retaliation. She alleged that she first
complained about the discriminatory treatment in October 2019, but “her director”
dismissed her concerns and threatened to give her a formal write-up. Poulos alleged
that she suffered adverse employment actions including additional harassment from
her supervisor; the denial of requested leave days for medical procedures; the
ignoring of her medical restrictions and accommodations following a surgical
procedure; and increasing hostility from her supervisor. She further alleged that
following her EEOC charge, she had been assigned additional work without
compensation, her bathroom breaks were closely monitored, and she was harassed
concerning breaks and requests for time off.
Finally, Poulos asserted a claim for racial discrimination. She alleged that she
was “scrutinized to a higher level than her white coworkers and berated and
humiliated before her peers by her supervisor”; was “denied requests for leave days
requested weeks in advance, while her white coworkers were allowed to leave early
without prior notice”; and was “held to a higher standard than her white coworkers,
including higher scrutiny for her time and work performance.” She further alleged
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that she was denied a promotion in favor of a white co-worker with less experience
and qualifications. Additionally, she alleged that a white co-worker was not
disciplined when that co-worker complained about a supervisor, but Poulos was
threatened with a write-up for voicing concerns. Poulos sought actual and
compensatory damages, “including lost wages and benefits in the past and future,”
mental anguish damages, and damages for pain and suffering.
Poulos requested issuance of service of citation. She served the City with
citation on March 29, 2022.
The City answered and asserted the affirmative defense of governmental
immunity, alleging that Poulos had not demonstrated that the City’s immunity had
been waived.
On May 17, 2022, the City moved to dismiss Poulos’s suit for lack of subject-
matter jurisdiction under Rule of Civil Procedure 91a. The City acknowledged that
the TCHRA provides a limited waiver of governmental immunity, but it argued that
the waiver only applies when the plaintiff alleges a violation within the scope of the
statue and follows the TCHRA’s mandatory procedures. The City first argued that
Poulos’s suit was untimely because she did not file her petition and serve the City
with process within 60 days of receiving a right to sue letter. Although Poulos
alleged that she received her right to sue letter from the EEOC on November 18,
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2021, she did not file suit until February 16, 2022, and she did not serve the City
until March 29, 2022.
The City also argued that Poulos did not file her charge of discrimination
within 180 days of the occurrence of an unlawful employment practice. Because
Poulos filed her charge of discrimination on October 13, 2021, any claims involving
acts more than 180 days before that date—or before April 16, 2021—were untimely
and could not be the subject of Poulos’s suit. According to the City, Poulos’s only
timely claims involved complaints regarding absences and bathroom breaks, and
those claims were not actionable under the TCHRA.
Poulos responded that she had timely filed suit. She received her right to sue
letter from the EEOC and filed suit on February 16, 2022, but at that time, she had
not yet received her notice of right to file a civil action from the Commission. She
received that letter on March 5, 2022, and served the City on March 29, 2022, within
the 60-day time-period. Poulos attached a copy of the notice from the Commission.
Poulos also argued that she had alleged claims that were actionable under the
TCHRA and that occurred after April 16, 2021, including claims that her white co-
workers “were given preference on breaks and access to bathroom privileges,” she
was denied leave to go to a medical appointment, and the medical restrictions
following her surgery were ignored.
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The trial court denied the City’s motion to dismiss. This interlocutory appeal
followed. See TEX. CIV. PRAC. & REM. CODE § 51.014(a)(8) (allowing party to take
interlocutory appeal from order granting or denying plea to jurisdiction filed by
governmental unit); City of Austin v. Liberty Mut. Ins., 431 S.W.3d 817, (Tex.
App.—Austin 2014, no pet.) (stating that because Rule 91a motion challenged
subject-matter jurisdiction, section 51.014(a)(8) afforded governmental unit right to
take interlocutory appeal from denial of motion).
Governmental Immunity
The City contends that the trial court erroneously denied its motion to dismiss
because Poulos cannot demonstrate that the City’s governmental immunity was
waived. In its first issue, the City argues that Poulos did not timely file suit and did
not timely serve the City. In its second issue, the City argues that to the extent Poulos
asserted any timely claims in her charge of discrimination, these claims are not
actionable under the TCHRA.
A. Standard of Review
Sovereign immunity protects the State of Texas against lawsuits for damages
unless the State consents to be sued. Gulf Coast Ctr. v. Curry, 658 S.W.3d 281, 283
(Tex. 2022). Governmental immunity provides similar protection to subdivisions of
the State, including cities. Travis Cent. Appraisal Dist. v. Norman, 342 S.W.3d 54,
57–58 (Tex. 2011); Harris Cnty. v. Sykes, 136 S.W.3d 635, 638 (Tex. 2004).
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“Governmental immunity has two components: immunity from liability,
which bars enforcement of a judgment against a governmental entity, and immunity
from suit, which bars suit against the entity altogether.” Tooke v. City of Mexia, 197
S.W.3d 325, 332 (Tex. 2006). Immunity from suit “thus presents a jurisdictional
question of whether the State has expressly consented to suit.” Curry, 658 S.W.3d
at 284; Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225–26 (Tex.
2004) (stating that sovereign immunity from suit “defeats a trial court’s subject
matter jurisdiction”). A plaintiff has the burden to affirmatively demonstrate that the
trial court has jurisdiction, which “encompasses the burden of establishing a waiver
of sovereign immunity in suits against the government.” Town of Shady Shores v.
Swanson, 590 S.W.3d 544, 550 (Tex. 2019).
Parties may challenge a trial court’s subject-matter jurisdiction through
several different procedural vehicles, including a plea to the jurisdiction or a motion
for summary judgment. Alamo Heights Indep. Sch. Dist. v. Clark, 544 S.W.3d 755,
770 (Tex. 2018). A party may also challenge subject-matter jurisdiction by filing a
motion to dismiss pursuant to Rule of Civil Procedure 91a. City of Dallas v. Sanchez,
494 S.W.3d 722, 724–25 (Tex. 2016) (per curiam); City of Houston v. Houston
Metro Sec., No. 01-22-00532-CV, 2023 WL 2602520, at *2 (Tex. App.—Houston
[1st Dist.] Mar. 23, 2023, no pet.) (mem. op.).
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Under Rule 91a, a party may move to dismiss a cause of action on the grounds
that it has no basis in law or fact. TEX. R. CIV. P. 91a.1. A cause of action has no
basis in law if the allegations, taken as true, together with inferences reasonably
drawn from the allegations, do not entitle the claimant to the relief sought. Id. In
ruling upon this motion, the trial court may not consider evidence, but instead must
decide the motion based “solely on the pleading of the cause of action, together with
any pleading exhibits permitted by Rule 59.” TEX. R. CIV. P. 91a.6; Sanchez, 494
S.W.3d at 724; see TEX. R. CIV. P. 59 (permitting “[n]otes, accounts, bonds,
mortgages, records, and all other written instruments, constituting, in whole or in
part, the claim sued on” to be attached to and made part of pleadings).
We review the merits of a Rule 91a motion de novo because the availability
of a remedy under the facts alleged is a question of law. Sanchez, 494 S.W.3d at 724.
Whether a pleader has alleged facts affirmatively demonstrating the existence of
subject-matter jurisdiction is also a question of law that we review de novo. Id. at
725; Miranda, 133 S.W.3d at 226. To determine whether dismissal under Rule 91a
is required, we consider whether the pleadings, liberally construed, alleged sufficient
facts to invoke a waiver of governmental immunity. Sanchez, 494 S.W.3d at 725.
B. Timeliness of City’s Rule 91a Motion
Before addressing the City’s appellate arguments, we first address an
argument that Poulos raised in her appellee’s brief and her sur-reply brief. Poulos
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argues that the trial court properly denied the City’s Rule 91a motion because the
trial court did not timely rule on the motion. She contends that as a result of the
untimely hearing and ruling, “action pursuant to this rule is no longer available as a
matter of law.”
Rule 91a.3 provides that a motion to dismiss must be:
(a) filed within 60 days after the first pleading containing the
challenged cause of action is served on the movant;
(b) filed at least 21 days before the motion is heard; and
(c) granted or denied within 45 days after the motion is filed.
TEX. R. CIV. P. 91a.3. “The word ‘must’ is generally construed as mandatory, and,
therefore, as creating a duty or obligation.” Walker v. Owens, 492 S.W.3d 787, 790
(Tex. App.—Houston [1st Dist.] 2016, no pet.). Courts have repeatedly noted that
while Rule 91a.3 provides that a motion to dismiss “must be . . . granted or denied
within 45 days after the motion is filed,” the Rule does not provide any consequences
or sanctions if the trial court does not comply. See id.; MedFin Manager, LLC v.
Stone, 613 S.W.3d 624, 628 (Tex. App.—San Antonio 2020, no pet.); Koenig v.
Blaylock, 497 S.W.3d 595, 598 (Tex. App.—Austin 2016, pet. denied). This Court
has held that while the trial court’s failure to comply with the 45-day deadline is
error, “the court’s non-compliance with the mandatory language of the rule will not
result in reversal if the error is found to be harmless.” Walker, 492 S.W.3d at 790–
91; see MedFin Manager, 613 S.W.3d at 628 (concluding that failure to grant or
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deny motion within 45 days is error, but Rule’s deadline “is directory, not
jurisdictional”).
Here, Poulos filed suit against the City on February 16, 2022, and served the
City with citation on March 29, 2022. The City timely filed its motion to dismiss on
May 17, 2022. Under the timelines of Rule 91a, the motion “must” have been granted
or denied within 45 days after the motion was filed, or by July 1, 2022. The trial
court did not rule on the City’s motion until September 7, 2022.
The trial court’s failure to rule on the motion within the 45-day deadline was
error. See TEX. R. CIV. P. 91a.3; Walker, 492 S.W.3d at 790. However, because this
deadline is not jurisdictional, the trial court did not lose jurisdiction to decide the
motion to dismiss. See MedFin Manager, 613 S.W.3d at 629; Koenig, 497 S.W.3d
at 599 (noting that in absence of language outlining consequences for trial court’s
failure to act within 45-day deadline, “it is more reasonable to conclude that” time
limit in rule “is not a hard deadline that prohibits the court from considering the
substance of the motion to dismiss after the expiration of the 45-day time period but,
rather, a provision included in the rule to promote the orderly and prompt dismissal
of baseless causes of action”).
Moreover, Poulos has not attempted to identify any way in which she was
prejudiced by the trial court ruling on the motion after the 45-day deadline had
expired. See Walker, 492 S.W.3d at 791 (“[H]e does not contend that the parties
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engaged in any discovery or other furtherance of the litigation process after the
deadline passed. The motion simply remained pending during that period.”); Koenig,
497 S.W.3d at 599 (stating that court could not “imagine any such prejudice” to
plaintiff for failure to rule by 45-day deadline, noting that plaintiff would have more
time to respond to dismissal motion, more time to amend petition, and more time to
consider whether to non-suit). We conclude that the trial court’s failure to rule on
the City’s Rule 91a motion within the 45-day deadline did not preclude the trial court
from doing so after the deadline. We therefore turn to the merits of the City’s
arguments on appeal.
C. Whether Poulos Timely Filed Suit Under TCHRA
The Texas Legislature enacted the TCHRA to address discrimination and
retaliation in the workplace and to “coordinate and conform with federal anti-
discrimination and retaliation laws under Title VII.” Prairie View A&M Univ. v.
Chatha, 381 S.W.3d 500, 504 (Tex. 2012). When analyzing a claim brought under
the TCHRA, we look to state cases as well as to the analogous federal statutes and
the case law interpreting those statutes. Quantum Chem. Corp. v. Toennies, 47
S.W.3d 473, 476 (Tex. 2001); Anderson v. Houston Cmty. Coll. Sys., 458 S.W.3d
633, 643 (Tex. App.—Houston [1st Dist.] 2015, no pet.). The TCHRA waives a
governmental unit’s immunity, but only when the plaintiff states a claim for conduct
that actually violates the statute. Clark, 544 S.W.3d at 770; Mission Consol. Indep.
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Sch. Dist. v. Garcia, 372 S.W.3d 629, 636 (Tex. 2012) (“[T]he Legislature has
waived immunity only for those suits where the plaintiff actually alleges a violation
of the TCHRA by pleading facts that state a claim thereunder.”).
Under the TCHRA, 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
(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.
TEX. LABOR CODE § 21.051. An employer also commits an unlawful employment
practice if the employer retaliates or discriminates against a person who (1) opposes
a discriminatory practice; (2) makes or files a charge of discrimination; (3) files a
complaint; or (4) testifies, assists, or participates in any manner in an investigation,
proceeding, or hearing. Id. § 21.055.
A person who is aggrieved by an unlawful employment practice may file a
complaint with the Commission that states that an unlawful employment practice
has been committed and states the facts on which the complaint is based. Id.
§ 21.201(a), (c). This complaint must be filed not later than the 180th day after the
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date the alleged unlawful employment practice occurred. Id. § 21.202(a). If the
Commission dismisses a complaint or does not resolve the complaint before the
181st day after the date the complaint was filed, the Commission shall inform the
complainant of the dismissal or the failure to resolve the complaint. Id. § 21.208.
A complainant who receives notice under section 21.208 that the Commission
has not dismissed or resolved the complaint “is entitled to request from the
commission a written notice of the complainant’s right to file a civil action.” Id.
§ 21.252(a). “Within 60 days after the date a notice of the right to file a civil action
is received, the complainant may bring a civil action against the respondent.” Id.
§ 21.254. Failure to issue the notice of the complainant’s right to file a civil action
does not affect the complainant’s right to bring a civil action against her employer.
Id. § 21.252(d). In the Code Construction Act, the Texas Legislature has provided
that “[s]tatutory prerequisites to a suit, including the provision of notice, are
jurisdictional requirements in all suits against a governmental entity.” TEX. GOV’T
CODE § 311.034. Title VII contains similar requirements that a plaintiff file a timely
charge of discrimination and receive a “notice of the right to sue” from the EEOC
before filing suit in court. See 42 U.S.C. § 2000e-5(e)(1) (requiring charge of
discrimination to be filed with EEOC within 180 days of alleged unlawful
employment practice), (f)(1) (requiring EEOC to notify complainant if EEOC
15
dismisses charge or has not filed its own civil action within 180 days of complainant
filing charge); Ernst v. Methodist Hosp. Sys., 1 F.4th 333, 337 (5th Cir. 2021).
Several courts—including some of our sister intermediate appellate courts,
federal district courts, and the Fifth Circuit—have held that the event that triggers
section 21.254’s 60-day time period for filing a suit that asserts claims under the
TCHRA is the receipt of the notice of the right to file a civil action from the
Commission, not the receipt of a “right to sue” letter from the EEOC. See, e.g.,
Vielma v. Eureka Co., 218 F.3d 458, 464–68 (5th Cir. 2000); Hansen v. Aon Risk
Servs. of Tex., 473 F. Supp. 2d 743, 748 (S.D. Tex. 2007) (following rationale of
Vielma); Ledesma v. Allstate Ins. Co., 68 S.W.3d 765, 770–72 (Tex. App.—Dallas
2001, no pet.) (same). In making this determination, the Dallas Court of Appeals in
Ledesma focused on the language of Labor Code sections 21.252, 21.253, and
21.254, all of which refer to a “notice of the right to file a civil action” and do not
refer to the EEOC, EEOC procedures, or a “right to sue” letter issued by the EEOC.
See 68 S.W.3d at 770; see also Vielma, 218 F.3d at 464–65 (noting that both sections
21.252 and 21.254 use same term—“a notice of the right to file a civil action”—and
stating that in absence of contrary indications, court will “interpret words or phrases
that appear repeatedly in a statute to have the same meaning”).
We agree with the Fifth Circuit’s and the Dallas Court of Appeals’
construction of section 21.254. Labor Code section 21.252(a) provides that a
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complainant is “entitled to request from the commission a written notice of the
complainant’s right to file a civil action.” TEX. LABOR CODE § 21.252(a). The
Commission’s “failure to issue the notice of a complainant’s right to file a civil
action” does not affect the complainant’s right to bring a lawsuit against her
employer. Id. § 21.252(d). The Labor Code then provides that “[w]ithin 60 days after
the date a notice of the right to file a civil action is received,” the complainant may
file suit against her employer. Id. § 21.254. As the Dallas Court of Appeals pointed
out, none of these statutory provisions refers to the EEOC or a right to sue letter
issued by the EEOC. See Ledesma, 68 S.W.3d at 770. The plain language of section
21.254, therefore, refers to the notice of the right to file a civil action issued by the
Commission, not the right to sue letter issued by the EEOC. See Vielma, 218 F.3d at
464 (disagreeing that “right to sue” letter issued by EEOC is interchangeable with
“right to file a civil action” letter issued by Commission). Concluding otherwise
would read language into section 21.254 that the Legislature did not include. See
Ledesma, 68 S.W.3d at 770; see Cadena Comercial USA Corp. v. Tex. Alcoholic
Beverage Comm’n, 518 S.W.3d 318, 326 (Tex. 2017) (“[W]e take statutes as we find
them and refrain from rewriting the Legislature’s text.”).
Here, Poulos filed suit against the City on February 16, 2022. In her original
petition, Poulos alleged the following with respect to “Administrative Conditions
Precedent” to filing suit:
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10. On October 13, 2021, Plaintiff timely and dually filed a Charge
of Discrimination against the Defendant with the Texas Workforce
Commission Civil Rights Division and the Equal Employment
Opportunity Commission, EEOC Charge No. 460-2022-00189.
Plaintiff received a right to sue from the EEOC on November 18, 2021.
Plaintiff files this complaint within 90 days of receiving the notice of
right to sue. All conditions precedent to filing this lawsuit have been
performed or have occurred.
11. Plaintiff has requested [that] the Texas Workforce Commission
Civil Rights Division issue Complainant’s “Right to File Civil Action.”
Poulos only asserted claims under the TCHRA; she did not allege any violations of
Title VII. In response to the City’s motion to dismiss, Poulos attached the “Notice
of Complainant’s Right to File Civil Action” issued by the Commission. Poulos
received this notice on March 5, 2022, after she had filed suit against the City. It is
undisputed that Poulos served the City on March 29, 2022.
The City argues that Poulos did not timely file suit under the TCHRA because
she received the right to sue letter from the EEOC on November 18, 2021, but she
did not file suit until February 16, 2022, more than 60 days after receipt of the right
to sue letter. However, receipt of the EEOC right to sue letter does not trigger the
60-day time period to file suit under the TCHRA; instead, receipt of the notice of the
right to file a civil action from the Commission triggers the running of the 60-day
period. See Ledesma, 68 S.W.3d at 770–72; Vielma, 218 F.3d at 464–68. In her
petition filed on February 16, 2022, Poulos alleged that she had requested that the
Commission issue a notice of the right to file a civil action. Construing her pleadings
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liberally, as we must when reviewing an order on a Rule 91a motion, we conclude
that at the time Poulos filed suit, she had requested but not yet received a notice of
the right to file a civil action from the Commission. See Sanchez, 494 S.W.3d at 725.
Thus, the 60-day time period in section 21.254 had not yet begun running, and
Poulos timely filed her TCHRA claims against the City. See TEX. LABOR CODE
§ 21.254; Ledesma, 68 S.W.3d at 767–68, 772 (noting that Ledesma received right
to sue letter from EEOC on June 11, 1998, she filed suit and asserted claims under
TCHRA on September 8, 1998, and she requested that predecessor agency to
Commission issue notice of right to file civil action on same date she filed suit, and
concluding that trial court erred by granting plea to jurisdiction because Ledesma
was not required to file suit asserting TCHRA claims within 60 days of receiving
EEOC letter).
The City also argues in its first issue that Poulos did not timely serve it with
citation. “Texas courts have interpreted section 21.254 to mean that a plaintiff must
file the suit and serve notice of the suit upon the proper parties within 60 days of
receiving of notice of a right to sue from the [Commission].” McCollum v. Tex. Dep’t
of Licensing & Regul., 321 S.W.3d 58, 63 (Tex. App.—Houston [1st Dist.] 2010,
pet. denied); Tarrant Cnty. v. Vandigriff, 71 S.W.3d 921, 924 (Tex. App.—Fort
Worth 2002, pet. denied) (“The mere filing of a lawsuit is not sufficient to meet the
requirements of ‘bringing suit’ within the limitations period; rather, a plaintiff must
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both file her action and have the defendant served with process.”). The date of
service relates back to the date of filing if the plaintiff exercised diligence in
effecting service. Vandigriff, 71 S.W.3d at 924.
Here, Poulos received her notice of the right to file a civil action from the
Commission on March 5, 2022, the date that triggers section 21.254’s 60-day time
period for bringing suit. As stated above, it is undisputed that Poulos filed suit on
February 16, 2022—before receiving the notice of the right to file a civil action—
and served the City on March 29, 2022. Poulos therefore served the City with citation
within the 60-day time period for bringing suit. See TEX. LABOR CODE § 21.254;
McCollum, 321 S.W.3d at 63; Vandigriff, 71 S.W.3d at 924.
We overrule the City’s first issue.
D. Whether Poulos’s Claims are Actionable Under the TCHRA
As mentioned above, the TCHRA waives governmental immunity, “but only
when the plaintiff states a claim for conduct that actually violates the statute.” Clark,
544 S.W.3d at 770. To establish a trial court’s jurisdiction over a TCHRA claim, the
plaintiff must plead the elements of the statutory cause of action—the “basic facts
that make up the prima facie case”—so the trial court can determine whether the
plaintiff has sufficiently alleged a TCHRA violation. San Antonio Water Sys. v.
Nicholas, 461 S.W.3d 131, 135 (Tex. 2015). The plaintiff must also “strictly satisf[y]
the procedural requirements outlined in the TCHRA” to bring suit against a
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governmental entity. See Chatha, 381 S.W.3d at 513–14. We therefore turn to
whether Poulos pleaded facts that state a claim under the TCHRA.
1. Whether Poulos timely asserted alleged discriminatory acts in her
charge of discrimination
The TCHRA requires a plaintiff to exhaust her administrative remedies by
filing a complaint with the Commission or the EEOC. TEX. LABOR CODE § 21.201;
Chatha, 381 S.W.3d at 503, 504 n.4; Waffle House, Inc. v. Williams, 313 S.W.3d
796, 804 (Tex. 2010). The complaint must be filed “not later than the 180th day after
the date the alleged unlawful employment practice occurred.” TEX. LABOR CODE
§ 21.202(a); Chatha, 381 S.W.3d at 513–14 (agreeing that 180-day filing deadline
in section 21.202 is statutory prerequisite to suit for TCHRA suits against
governmental entities). Claims against governmental entities that are not timely filed
are jurisdictionally barred. Harris Cnty. Hosp. Dist. v. Parker, 484 S.W.3d 182, 192–
93 (Tex. App.—Houston [14th Dist.] 2015, no pet.).
Each discrete incident of discrimination constitutes a separate actionable
unlawful employment practice. Alief Indep. Sch. Dist. v. Brantley, 558 S.W.3d 747,
755 (Tex. App.—Houston [14th Dist.] 2018, pet. denied); see Nat’l R.R. Passenger
Corp. v. Morgan, 536 U.S. 101, 114 (2002) (stating, in case under Title VII, that
“[e]ach incident of discrimination and each retaliatory adverse employment decision
constitutes a separate actionable ‘unlawful employment practice’”). Discrete
discriminatory acts are not actionable if time-barred, and each discrete
21
discriminatory act “starts a new clock for filing charges alleging that act.” Brantley,
558 S.W.3d at 755. “Discrete acts that fall within the statutory time period do not
make acts that fall outside the time period timely.” Id. Hostile work environment
claims, however, typically consist “of multiple discriminatory acts over a period of
time,” and therefore a charge alleging a hostile work environment “must be filed
only within the statutory window of at least one of the acts that contributed to the
hostile work environment.” Id.; Nat’l R.R. Passenger, 536 U.S. at 117 (“Provided
that an act contributing to the claim occurs within the filing period, the entire time
period of the hostile environment may be considered by a court for the purposes of
determining liability.”).
Poulos alleged that she filed her charge of discrimination with the
Commission and the EEOC on October 13, 2021. The City argues that any claim
based on conduct that occurred before April 16, 2021—180 days before Poulos filed
her charge of discrimination—is untimely and does not waive the City’s immunity.
The City further contends that the only claims Poulos timely asserted related to
absences from work and bathroom breaks, neither of which are actionable under the
TCHRA and do not establish a hostile work environment. Poulos responds that in
addition to these claims, she also timely asserted a claim that, following her surgery,
her supervisor violated her accommodations by requiring her to lift heavy water
bottles. The appellate record does not contain Poulos’s charge of discrimination.
22
Because Poulos does not argue that we should address any claims based on
conduct that occurred before April 16, 2021, we agree with the City that claims based
on conduct occurring before this date are untimely and are jurisdictionally barred.
See TEX. LABOR CODE § 21.202(a); Chatha, 381 S.W.3d at 513–14; Parker, 484
S.W.3d at 192–93. However, we conclude that Poulos’s hostile work environment
claim, which is based on conduct occurring both before and after April 16, 2021, is
timely. See Nat’l R.R. Passenger, 536 U.S. at 117; Brantley, 558 S.W.3d at 755.
2. Whether the claims Poulos timely raised in her charge of
discrimination state a claim under the TCHRA
a. Poulos’s race discrimination claim
The TCHRA provides that an employer commits an unlawful employment
practice if, because of race, 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 (2) “limits, segregates, or classifies an employee . . . 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.” TEX. LABOR
CODE § 21.051(1).
A plaintiff may rely on direct or circumstantial evidence. Tex. Tech Univ.
Health Scis. Ctr.-El Paso v. Flores, 612 S.W.3d 299, 305 (Tex. 2020). When a
plaintiff relies on circumstantial evidence, we follow the burden-shifting framework
23
established by the United States Supreme Court. See McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 802–04 (1973); Flores, 612 S.W.3d at 305. Under this
framework, (1) the plaintiff must first create a presumption of illegal discrimination
by establishing a prima facie case; (2) the defendant must then rebut that
presumption by establishing a legitimate, nondiscriminatory reason for the
employment action; and (3) the plaintiff must then overcome the rebuttal evidence
by establishing that the defendant’s stated reason is a mere pretext. Flores, 612
S.W.3d at 305. At all times, the burden of persuasion remains with the employee.
Clark, 544 S.W.3d at 782.
To establish a prima facie case of discrimination, the employee must show
that (1) she was a member of a protected class; (2) she suffered an adverse
employment action; and (3) non-protected class employees were not treated
similarly. Anderson, 458 S.W.3d at 643. The TCHRA addresses only “ultimate
employment decisions.”1 Id. at 644; Esparza v. Univ. of Tex. at El Paso, 471 S.W.3d
1
As support for this construction of the TCHRA, this Court and some of our sister
intermediate appellate courts have cited cases from the Fifth Circuit holding that
Title VII was designed to address “ultimate employment decisions” and not every
decision made by employers that might have a tangential effect on ultimate
decisions. See, e.g., Democratic Schs. Rsch., Inc. v. Rock, 608 S.W.3d 290, 308
(Tex. App.—Houston [1st Dist.] 2020, no pet.) (citing McCoy v. City of Shreveport,
492 F.3d 551, 559–60 (5th Cir. 2007)); Winters v. Chubb & Son, Inc., 132 S.W.3d
568, 575 (Tex. App.—Houston [14th Dist.] 2004, no pet.) (citing Dollis v. Rubin,
77 F.3d 777, 781–82 (5th Cir. 1995)); Elgaghil v. Tarrant Cnty. Junior Coll., 45
S.W.3d 133, 142–43 (Tex. App.—Fort Worth 2000, pet. denied) (citing Messer v.
Meno, 130 F.3d 130, 140 (5th Cir. 1997), and Mattern v. Eastman Kodak Co., 104
F.3d 702, 707 (5th Cir. 1997)). Recently, however, the Fifth Circuit, sitting en banc
24
903, 909 (Tex. App.—El Paso 2015, no pet.) (“[A]n adverse employment action
requires a significant change in employment status.”). The statute “does not address
‘every decision made by employers that arguably might have some tangential effect
upon employment decisions.’” Anderson, 458 S.W.3d at 644 (quoting Winters v.
Chubb & Son, Inc., 132 S.W.3d 568, 575 (Tex. App.—Houston [14th Dist.] 2004,
no pet.)); Elgaghil v. Tarrant Cnty. Junior Coll., 45 S.W.3d 133, 142 (Tex. App.—
Fort Worth 2000, pet. denied) (stating that TCHRA was “designed to address
ultimate employment decisions, not every action that occurs in the workplace that
makes an employee unhappy”).
Generally, adverse employment actions involve hiring, granting leave,
discharging, promoting, and compensating employees. Anderson, 458 S.W.3d at
644. Adverse employment actions do not include disciplinary filings, reprimands
concluded that limiting Title VII’s anti-discrimination provision only to “ultimate
employment decisions” was inconsistent with the language of Title VII itself. Thus,
the court abandoned this requirement for demonstrating an adverse employment
action. See Hamilton v. Dallas Cnty., 79 F.4th 494, 499–502 (5th Cir. 2023) (en
banc). Fifth Circuit precedent, although persuasive authority, is not binding on this
Court. In the absence of contrary authority from the Texas Supreme Court or this
Court sitting en banc, we continue to be bound by our prior precedent holding that
the TCHRA’s anti-discrimination provision only applies to “ultimate employment
decisions.” See Anderson v. Houston Cmty. Coll. Sys., 458 S.W.3d 633, 644 (Tex.
App.—Houston [1st Dist.] 2015, no pet.); see also Mitschke v. Borromeo, 645
S.W.3d 251, 256 (Tex. 2022) (stating that under principles of horizontal stare
decisis, panel of appellate court must follow “materially indistinguishable decisions
of earlier panels of the same court” unless prior decision has been superseded by
higher authority, such as decision by Texas Supreme Court or “an en banc decision
of the court of appeals itself”).
25
from a supervisor, poor performance reviews, hostility from fellow employees,
verbal threats to fire, criticism of the employee’s work, or negative employment
evaluations. Id.Poulos alleged that the City discriminated against her based on her race when
“she was scrutinized to a higher level than her white coworkers and berated and
humiliated before her peers by her supervisor” and “was held to a higher standard
than her white coworkers, including higher scrutiny for her time and work
performance.” As part of this higher scrutiny, Poulos’s supervisor allegedly required
her to request permission before using the restroom, which her white co-workers did
not have to do. She also alleged that she “was denied requests for leave days
requested weeks in advance, while her white coworkers were allowed to leave early
without prior notice.”2 The City argues that Poulos has not alleged that she has
suffered an adverse employment action. We agree with the City.
2
Poulos also alleged that she was “denied promotions she was qualified for in favor
of white employees with less experience and qualifications.” Poulos alleged that one
of her less-experienced white coworkers was promoted to the position of Assistant
Supervisor in April 2020, but Poulos and “her non-white colleagues were not given
the opportunity to apply to this position.” Because this action did not occur within
180 days of Poulos filing her charge of discrimination in October 2021, any
complaints about this action are untimely. See TEX. LABOR CODE § 21.202(a);
Prairie View A&M Univ. v. Chatha, 381 S.W.3d 500, 513–14 (Tex. 2012); Harris
Cnty. Hosp. Dist. v. Parker, 484 S.W.3d 182, 197 (Tex. App.—Houston [14th Dist.]
2015, no pet.) (concluding that claim for failure to promote was untimely because
plaintiff filed EEOC charge more than 180 days after he was denied promotions).
Poulos does not argue on appeal that her allegations concerning a promotion were
timely.
26
Poulos’s complaints that her supervisors scrutinized her more closely than her
white coworkers and required her to obtain permission before using the restroom are
not “ultimate employment decisions” under the TCHRA. See id. at 643; Winters,
132 S.W.3d at 575 (stating that TCHRA does not “address every decision made by
employers that arguably might have some tangential effect upon employment
decisions”); see also Parker, 484 S.W.3d at 196–97 (stating that blaming plaintiff
for problems unrelated to job performance, badgering him over attendance and
tardiness, screaming and yelling at him in front of his employees, writing him up for
poor performance, lowering his performance evaluation, and scrutinizing, micro-
managing, and criticizing him were not “ultimate employment decisions”); Elgaghil,
45 S.W.3d at 143 (stating that “[a]s a matter of law” actions including verbal
harassment, write-ups for poor work performance, and threats of termination are not
adverse employment decisions). Therefore, to the extent Poulos complains about
these actions by the City, she has not stated a claim that is actionable under the
TCHRA.
Poulos also alleged that she requested leave on June 16, 2021, to attend a
medical appointment before a scheduled surgery, but her supervisor refused to
approve the request. Poulos alleged that, on a previous occasion, one of her white
co-workers “asked to leave early from work that same day” without providing any
advance notice to her supervisor, and the supervisor granted the request. Although
27
this Court has stated that adverse employment actions include decisions “granting
leave,” see Anderson, 458 S.W.3d at 643, the parties have pointed to no binding
authority holding that the denial of an employee’s request to take one day of leave
on a specific date constitutes an adverse employment decision.
The Fifth Circuit and the Southern District of Texas, however, have held that
such a decision does not constitute an adverse employment action. See McElroy v.
PHM Corp., 622 F. App’x 388, 390–91 (5th Cir. 2015) (per curiam) (concluding
that employer’s denial of permission for employee to “leave work right away on a
single day” for medical issue did not qualify as adverse employment action); Beltran
v. Univ. of Tex. Health Sci. Ctr. at Houston, 837 F. Supp. 2d 635, 643 (S.D. Tex.
2011) (noting that courts routinely conclude that denial of short term vacation time
is not adverse employment action). The Fifth Circuit has distinguished between
(1) an employer’s decision denying an employee’s right to take leave or the amount
of leave available and (2) an employer’s decision affecting the specific date, time,
and manner that leave is taken. McElroy, 622 F. App’x at 391; see Ogden v. Potter,
397 F. App’x 938, 939 (5th Cir. 2010) (per curiam) (stating, in retaliation case, that
“[a] single denial of leave is not an adverse employment action when it affects leave
on a specific date and time, but not the employee’s amount of or right to take leave
in general, because a reasonable employee would not have found the action to be
materially adverse”). Under Fifth Circuit precedent, the latter category of employer
28
decisions does not constitute adverse employment actions. See Price v. Wheeler, 834
F. App’x 849, 857 (5th Cir. 2020) (noting court’s prior holdings that “a single denial
of leave for a specific date and time” is not adverse employment action); Ogden v.
Brennan, 657 F. App’x 232, 235 (5th Cir. 2016) (per curiam) (same); McElroy, 622
F. App’x at 391 (same).
Here, Poulos does not allege that she was denied the right to take leave or that
the amount of leave that she was allowed was less than the amount allowed for co-
workers of different races. Instead, she alleges that her supervisor denied her request
for leave on a specific date to attend a medical appointment, while her supervisor
had, in the past, allowed one of her white co-workers to take leave with no prior
notice given. We conclude that this decision was not an adverse employment action
under the TCHRA. See Anderson, 458 S.W.3d at 644 (stating that TCHRA only
addresses “ultimate employment decisions”); Esparza, 471 S.W.3d at 909 (“[A]n
adverse employment action requires a significant change in employment status.”).
We therefore conclude that Poulos has not alleged a prima facie case of
discrimination based on the denial of requested leave. See Anderson, 458 S.W.3d at
643.
Because Poulos has not alleged an adverse employment action, we conclude
that she has not alleged a prima facie case of race discrimination, and therefore this
claim does not sufficiently allege a TCHRA violation such that the City’s
29
governmental immunity is waived. See Nicholas, 461 S.W.3d at 135; see also Clark,
544 S.W.3d at 770 (“The TCHRA waives immunity, but only when the plaintiff
states a claim for conduct that actually violates the statute.”). We therefore hold that
the trial court erred to the extent that it denied the City’s Rule 91a motion to dismiss
Poulos’s race-discrimination claim.
b. Poulos’s hostile work environment claim
A hostile work environment claim “entails ongoing harassment, based on the
plaintiff’s protected characteristic, so sufficiently severe or pervasive that it has
altered the conditions of employment and created an abusive working environment.”
Anderson, 458 S.W.3d at 646 (quoting Bartosh v. Sam Houston State Univ., 259
S.W.3d 317, 324 (Tex. App.—Texarkana 2008, pet. denied)). The elements of a
prima facie case of hostile work environment are: (1) the employee belongs to a
protected group; (2) the employee was subjected to unwelcome harassment; (3) the
harassment complained of was based on the protected characteristic; (4) the
harassment complained of affected a term, condition, or privilege of employment;
and (5) the employer knew or should have known of the harassment in question and
failed to take prompt remedial action. Id. If the employee complains of harassment
by a supervisor, the employee needs only prove the first four elements. Id.To satisfy the fourth element of a hostile work environment claim, the
employee must show that the workplace was “permeated with discriminatory
30
intimidation, ridicule, and insult sufficiently severe or pervasive to create a hostile
or abusive working environment.” Donaldson v. Tex. Dep’t of Aging & Disability
Servs., 495 S.W.3d 421, 445 (Tex. App.—Houston [1st Dist.] 2016, pet. denied).
The work environment must be both objectively and subjectively offensive—“one
that a reasonable person would find hostile or abusive and one that the victim
perceived to be so.” Id. Although the “abusiveness” standard does not necessarily
require “any tangible psychological impact on the victim,” it does require “extreme
conduct.” Twigland Fashions, Ltd. v. Miller, 335 S.W.3d 206, 219 (Tex. App.—
Austin 2010, no pet.). Incidental or occasional race-based comments, discourtesy,
rudeness, or isolated incidents (unless those incidents are “extremely serious”) “are
not discriminatory changes in the terms and conditions of a worker’s employment.”
Univ. of Tex. Health Sci. Ctr. at Tyler v. Nawab, 528 S.W.3d 631, 641 (Tex. App.—
Texarkana 2017, pet. denied).
In determining whether a hostile work environment exists, we look to all the
circumstances, including the frequency of the discriminatory conduct; its severity;
whether the conduct was physically threatening or humiliating, or a mere offensive
utterance; and whether it unreasonably interfered with the employee’s work
performance. Donaldson, 495 S.W.3d at 445; Anderson, 458 S.W.3d at 646. “The
availability of a hostile work environment claim is intended to prohibit and prevent
conduct that is so severe and pervasive that it destroys a protected class member’s
31
opportunity to succeed in the workplace.” City of Houston v. Fletcher, 166 S.W.3d
479, 490 (Tex. App.—Eastland 2005, pet. denied) (quotations omitted).
With respect to her hostile work environment claim, Poulos alleged that she
was subjected to disparate treatment because her supervisor “would monitor and
interrogate [Poulos] more than her white co-workers.” She alleged that she “was
held to a different standard for her attendance and break times compared to her white
coworkers,” who were able to leave early or sleep on the job without repercussions
while Poulos “was harassed and questioned about her time and attendance.” Poulos
further alleged that she “was verbally assaulted by her supervisor and endured
hostility and yelling on a frequent basis.”
To make a prima facie case for a hostile work environment, however, the
plaintiff must allege that the harassment that she complains of was based upon the
protected characteristic. See Parker, 484 S.W.3d at 197; Anderson, 458 S.W.3d at
646. Although Poulos alleges that she was treated differently from her white
coworkers in several respects, she makes no allegations that the harassment that she
allegedly suffered was based upon her race. For example, she does not allege that
her supervisors used racial slurs, made derogatory comments based on her race, or
otherwise referenced her race in any of the allegedly harassing interactions with
Poulos. See Nawab, 528 S.W.3d at 641 (stating that incident in which doctor of
Indian descent “mocked [plaintiff’s] Pakistani accent” “could be claimed to have
32
been based on race or nationality,” but ultimately concluding that this incident and
other comments and negative evaluations did not state prima facie case of race or
nationality-based hostile work environment); Barnes v. Prairie View A&M Univ.,
No. 14-15-01094-CV, 2017 WL 2602723, at *3 (Tex. App.—Houston [14th Dist.]
June 15, 2017, pet. denied) (mem. op.).
Moreover, even if Poulos has alleged harassment based on her race, we agree
with the City that she has not stated a prima facie case that the alleged harassment
was so “severe or pervasive” that it affected a term, condition, or privilege of
Poulos’s employment. See Donaldson, 495 S.W.3d at 445; Anderson, 458 S.W.3d
at 647. Poulos alleged that “[t]he harassment was severe and pervasive and interfered
with [her] employment.” She did not, however, allege any facts relating to how her
work performance had been affected due to the alleged harassment. See Anderson,
458 S.W.3d at 647 (considering plaintiff’s deposition testimony that supervisor’s
“conduct did not affect her ability to perform her work or the quality of her work”).
Nor has Poulos alleged “extreme” conduct that affected the terms and
conditions of her employment. See Brantley, 558 S.W.3d at 757–58 (concluding
allegations that plaintiff was “falsely accused of disrespectful behavior and
mistakes,” called racial slur, told that female employees were afraid of him because
he was “tall, Black and bald,” told he might be shot if he wore hooded sweatshirt,
was paid less than white, female employees, and was “stripped of his duties” were
33
not objectively severe or pervasive enough to affect term, condition, or privilege of
employment); Parker, 484 S.W.3d at 198 (concluding plaintiff’s allegations that his
manager told another employee that “black males don’t—don’t work” and plaintiff
was “just here to sit on the clock,” coupled with allegations that plaintiff was blamed
for problems unrelated to his performance, was required to “improperly write up”
employees, was “badgered about attendance and tardiness,” was “screamed and
yelled at” in front of employees, was “written up for poor performance,” had
performance evaluation lowered, and “was scrutinized, micro-managed and
constantly criticized” was not extreme and did not affect terms and conditions of
employment).
We conclude that Poulos has not alleged a prima facie case of hostile work
environment based on her race. See Anderson, 458 S.W.3d at 646. We therefore hold
that the trial court erred to the extent that it denied the City’s rule 91a motion to
dismiss Poulos’s hostile work environment claim. See Clark, 544 S.W.3d at 770
(“The TCHRA waives immunity, but only when the plaintiff states a claim for
conduct that actually violates the statute.”).
c. Poulos’s retaliation claim
Poulos also asserted a retaliation claim, alleging that she formally complained
about the discrimination she was facing to “her director” on October 8, 2019, and he
responded by “dismissing her concerns and threatening to issue her a formal write
34
up for voicing the inequality she was facing.” Poulos alleged that following this
complaint, she “was subjected to additional [harassment] by her supervisor and
denied leave days requested for [her] surgical medical procedures.” She alleged that
she suffered an adverse employment action on August 6, 2021, when her supervisor
allegedly ignored her medical restrictions and accommodations following her
surgery and directed her to lift heavy water bottles. Poulos also alleged that she filed
her EEOC charge on October 13, 2021, but the City “continued its biased and unfair
treatment of [her] and refused to investigate or properly address [her] complaints
through February 2022.” She alleged that she “has continued to face additional
[harassment] from her supervisors . . . following the filing of her EEOC charge.” She
further alleged that “[f]ollowing her EEOC complaint,” she “has been assigned
additional work without being compensated for the responsibilities and continues to
be closely monitored with her bathroom breaks by her supervisor and harassed for
any breaks or requests for time off.”
The TCHRA prohibits an employer from retaliating against an employee for
engaging in certain protected activities. TEX. LABOR CODE § 21.055; Anderson, 458
S.W.3d at 647. To establish a prima facie case for retaliation, the employee must
show: (1) she engaged in an activity protected by the TCHRA; (2) she experienced
a material adverse employment action; and (3) a causal link exists between the
protected activity and the adverse employment action. Clark, 544 S.W.3d at 782;
35
Anderson, 458 S.W.3d at 647. “Protected activities” under the TCHRA consist of:
(1) opposing a discriminatory practice; (2) making or filing a charge of
discrimination; (3) filing a complaint; or (4) testifying, assisting, or participating in
any manner in an investigation, proceeding, or hearing. TEX. LABOR CODE § 21.055;
Anderson, 458 S.W.3d at 647.
Retaliation and race-based discrimination are distinct legal theories. See Univ.
of Tex. v. Poindexter, 306 S.W.3d 798, 809 (Tex. App.—Austin 2009, no pet.)
(“Retaliation is a different legal theory from race-based discrimination.”); Davis v.
Educ. Serv. Ctr., 62 S.W.3d 890, 894 (Tex. App.—Texarkana 2001, no pet.)
(“Retaliation is an independent violation of the TCHRA . . . .”); see also Clark, 544
S.W.3d at 763 (“A retaliation claim is related to, but distinct from, a discrimination
claim, and one may be viable even when the other is not.”). In the retaliation context,
unlike in the context of a racial discrimination claim, the “adverse employment
action” is not limited to “ultimate employment decisions.” Burlington N. & Santa
Fe Ry. Co. v. White, 548 U.S. 53, 67 (2006); Navy v. Coll. of the Mainland, 407
S.W.3d 893, 901 (Tex. App.—Houston [14th Dist.] 2013, no pet.). The employee
must show that a reasonable employee would have found the challenged action
“materially adverse,” meaning that the action “might well have dissuaded a
reasonable worker from making or supporting a charge of discrimination.” White,
548 U.S. at 68; Clark, 544 S.W.3d at 788. “[N]ormally, petty slights, minor
36
annoyances, and simple lack of good manners will not create such deterrence.”
White, 548 U.S. at 68; Navy, 407 S.W.3d at 901.
In its Rule 91a motion to dismiss, the City did not differentiate between
Poulos’s claim for racial discrimination and her claim for retaliation. The City did
not address retaliation in the motion other than to state that for discrimination and
retaliation cases, “Texas jurisprudence parallels federal cases construing and
applying equivalent federal statutes, like Title VII” and that a plaintiff “must
demonstrate a prima facie case of discrimination or retaliation under the
requirements of the TCHRA” to establish a waiver of immunity. The City argued
that Poulos failed to allege facts showing an adverse employment action, but it did
not address the distinction between adverse employment actions in the racial-
discrimination context and in the retaliation context. On appeal, aside from
summarily stating that Poulos failed to demonstrate a prima face case of retaliation,
which she must do to establish a waiver of immunity, the City does not address the
elements of a retaliation claim or analyze how Poulos’s pleadings fail to state a prima
facie case on this claim.
A Rule 91a motion to dismiss “must identify each cause of action to which it
is addressed, and must state specifically the reasons the cause of action has no basis
in law, no basis in fact, or both.” TEX. R. CIV. P. 91a.2; Reaves v. City of Corpus
Christi, 518 S.W.3d 594, 606 (Tex. App.—Corpus Christi–Edinburg 2017, no pet.).
37
Even though the City raises an immunity challenge in its Rule 91a motion, the City
must still follow the procedural requirements specifically set out in that rule. See
Reaves, 518 S.W.3d at 606–07 (concluding that case must be “judged under the
constraints of rule 91a, since that is the procedural framework which the City's
motion invoked, upon which the appellants relied, and by which the trial court
decided this case” and declining “to apply the rules applicable to pleas to the
jurisdiction to the extent that they differ from rule 91a”). We conclude that the City
failed to specifically state the reasons why Poulos’s cause of action for retaliation
has no basis in law. We hold that the trial court therefore did not err to the extent
that it denied the City’s motion to dismiss this claim.
We sustain the City’s second issue in part.3
3
We note that Rule 91a’s dismissal procedure is “in addition to, and does not
supersede or affect, other procedures that authorize dismissal.” TEX. R. CIV. P.
91a.9.
38
Conclusion
We affirm the order of the trial court to the extent that it denied the City’s
Rule 91a motion to dismiss Poulos’s retaliation claim. We reverse the order of the
trial court to the extent that it denied the City’s Rule 91a motion on (1) Poulos’s
race-discrimination claim and (2) Poulos’s hostile work environment claim. We
render judgment dismissing these two claims.
April L. Farris
Justice
Panel consists of Justices Hightower, Rivas-Molloy, and Farris.
39