law-discrimination-in-employment-filing-deadline-for-administrative-charge | 180 day rule
Exhaustion of Administrative Remedies
The Labor Code requires that an aggrieved employee file an administrative
complaint within 180 days of an unlawful employment practice. See Rice v. Russell-
Stanley, L.P., 131 S.W.3d 510, 513 (Tex. App.—Waco 2004, pet. denied); see also Schroeder v.
Texas Iron Works, Inc., 813 S.W.2d 483, 486 (Tex. 1991); Tex. Lab. Code Ann. § 21.202(a) (Vernon
2006).[3] This requirement is “mandatory and jurisdictional;” failure to “comply deprives the
court of subject matter jurisdiction.” Schroeder, 813 S.W.2d at 486; Czerwinski v. Univ. of Tex. Health
Sci. Ctr., 116 S.W.3d 119, 121 (Tex. App.—Houston [14th Dist.] 2002, pet. denied).
08‑0664 LIMESTONE COUNTY, TEXAS v. LAURI J. ANDERSON; from Limestone County; 10th district
(10-07-00174-CV, ___ SW3d ___, 07‑02‑08)(employment law, termination of employment, sex discrimination,
retaliation claim, adverse employment action, causal nexus, filing deadline for administrative complaint under Texas
Labor Code, exhaustion of administrative remedies)
Anderson’s TWC complaint is dated July 20, 2005; any discriminatory or retaliatory acts must have occurred within
the preceding 180 days, approximately January 21, 2005. Anderson’s January 28, 2005 termination occurred within
the 180-day period. In her complaint, Anderson alleged that she was “subjected to sexual harassment, discharged,
and “discriminated against because of my sex/Female and in retaliation” for opposing discriminatory practices. In
her amended petition, she alleged “a pattern and practice of discrimination,” particularly “in the areas of
responsibility, pay, prestige, and prospects for promotion.” These allegations are based on Anderson’s complaints
that she received reprimands, Moore’s name was placed above hers on the office letterhead, she was assigned to
lower level cases while Moore handled felonies, Moore received higher supplemental pay, and office policy limited
her private practice, but not Moore’s. Although these acts occurred outside the 180-day period, Anderson argues that
they are timely under the continuing violation doctrine.[4]
This doctrine “expands the scope of those discriminatory events that are actionable, as long as one of the events
occurs within the 180-day period.” Wal-Mart Stores v. Davis, 979 S.W.2d 30, 41 (Tex. App.—Austin 1998, pet. denied)
(citing Glass v. Petro-Tex Chem. Corp., 757 F.2d 1554, 1560-61 (5th Cir. 1985)). Under this doctrine, “an unlawful
employment practice manifests itself over time, rather than as a series of discrete acts.” Id. at 41-42 (citing Webb v.
Cardiothoracic Surgery Assocs. of N. Texas, P.A., 139 F.3d 532, 537 (5th Cir. 1998)). The 180-day period begins
when “acts supportive of a civil rights action are, or should be, apparent to a reasonably prudent person in the same
or a similar position.” Id. at 42. The “focus is on what event should, in fairness and logic, have alerted the average
layperson to act to protect his or her rights.” Id.
“[D]iscrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely
filed charges.” AMTRAK v. Morgan, 536 U.S. 101, 113, 122 S. Ct. 2061, 2072, 153 L. Ed. 2d 106 (2002) (emphasis
added). Texas courts apply the doctrine where there is “an organized scheme leading to and including a present
violation, so that it is the cumulative effect of the discriminatory practice, rather than any discrete occurrence, that
gives rise to the cause of action.” Cooper-Day v. RME Petroleum Co., 121 S.W.3d 78, 87 (Tex. App.—Fort Worth 2003,
pet. denied) (emphasis added); see Ibezim v. Tex. Dep’t of Health, No. 03-03-00308-CV, 2004 Tex. App. Lexis 6252,
at *22-24 (Tex. App.—Austin July 15, 2004, no pet.) (mem. op.); see also Vida v. Univ. of Tex. Houston Health Sci. Ctr.,
No. 14-01-01162-CV, 2002 Tex. App. Lexis 8432, at *2-3 (Tex. App.—Houston [14th Dist.] Nov. 27, 2002, no pet.) (not
designated for publication).
Anderson’s complaints regarding pay and reprimands are discrete acts to which the continuing violation doctrine
does not apply. See Cooper-Day, 121 S.W.3d at 87 (discrepancies in pay); see also Bowers v. Edgewood Indep.
Sch. Dist., Civil Action No: SA-05-CA-404-XR, 2005 U.S. Dist. Lexis 32037, at *16 (W.D. Tex. Oct. 4, 2005) (disciplinary
actions and reprimands). We construe her complaints regarding “responsibility,” “prestige,” lower level job
assignments, and placement of Moore’s name above hers on the office letterhead, as claims of demotion and failure
to promote, both of which are discrete acts. See Morgan, 536 U.S. at 114, 122 S. Ct. at 2073 (failure to promote); see
also Huckabay v. Moore, 142 F.3d 233, 239-40 (5th Cir. 1998) (demotion).
Moreover, Anderson’s August 2003 grievance alleged gender discrimination based on the same pre-termination acts
of which she now complains. Yet, she did not file her charge of discrimination until July 2005, nearly two years after
she became aware that that these actions may be discriminatory.[5] Thus, even assuming that these acts are not
discrete, the continuing violation doctrine is still inapplicable. See Cooper-Day, 121 S.W.3d at 87-88 (“Cooper-Day
knew of these allegedly discriminatory pay rate decisions more than 180 days before she filed her administrative
complaint”); see also Burrell v. Crown Cent. Petroleum, Inc., 255 F. Supp. 2d 591, 621-22 (E.D. Tex. 2003) (“the
continuing violation doctrine only applies to a plaintiff who was not aware at the time of the unlawful employment act
that the conduct was discriminatory”).
Anderson cannot recover for discrete incidents that occurred outside the 180-day period. See Morgan, 536 U.S. at
109-10, 122 S. Ct. at 2070-71. Neither does the continuing violation doctrine save any claims based on acts of which
Anderson was aware prior to the 180-day period. See Cooper-Day, 121 S.W.3d at 87-88; see also Burrell, 255 F.
Supp. 2d at 621-22. The trial court did not err by granting summary judgment on Anderson’s claim arising from pre-
termination acts. Thus, we need not address whether Anderson’s claims are within the scope of her TWC
complaint. See Tex. R. App. P. 47.1.08‑0664 LIMESTONE COUNTY, TEXAS v. LAURI J. ANDERSON; from Limestone
County; 10th district (10-07-00174-CV, ___ SW3d ___, 07‑02‑08)(employment law, termination of employment, sex
discrimination, retaliation claim, adverse employment action, causal nexus, filing deadline for administrative
complaint under Texas Labor Code, exhaustion of administrative remedies)
09-0227 BILL M. RANKIN v. GREG ABBOTT, ATTORNEY GENERAL OF THE STATE OF TEXAS;
from Bowie County; 6th district (06-07-00149-CV, ___ SW3d ___, 12‑10‑08)(employment dispute,
termination, charge of discrimination untimely, had not timely filed his administrative charge of
discrimination).