Univ. of Tex. MD Anderson Cancer Ctr. v. Phillips

• Decision Date: 06 December 2018
• Docket Number: NO. 01-18-00221-CV,01-18-00221-CV
• Parties: THE UNIVERSITY OF TEXAS - MD ANDERSON CANCER CENTER, Appellant v. RACHEL PHILLIPS, Appellee
• Court: Texas Court of Appeals

THE UNIVERSITY OF TEXAS - MD ANDERSON CANCER CENTER, Appellant v. RACHEL PHILLIPS, Appellee

NO. 01-18-00221-CV

Court of Appeals For The First District of Texas

December 6, 2018

On Appeal from the 334th District Court Harris County, Texas

Trial Court Case No. 2017-49643

MEMORANDUM OPINION

Appellee, Rachel Phillips, sued her employer, appellant, The University of Texas - MD Anderson Cancer Center ("UTMDA"), for sex discrimination and retaliation under the Texas Commission on Human Rights Act ("TCHRA").¹ UTMDA brings this interlocutory appeal,² challenging the trial court's denial of its plea to the jurisdiction. In its sole issue, UTMDA contends that the trial court lacked subject-matter jurisdiction over Phillips's claims because the evidence establishes that she did not timely exhaust her administrative remedies under the TCHRA.

We vacate the trial court's order and dismiss the case.

Background

In 2013, Phillips began her employment as an administrative assistant at UTMDA. In November 2013, after having her first child and returning to work from maternity leave, Phillips utilized a facility at UTMDA for nursing mothers each day. Phillips alleged that, thereafter, UTMDA Department Administrator Aaron Walton began to harass her, including waiting for her outside the facility. On one occasion, Walton interrupted her while she was using the facility, asked to meet with her immediately, and humiliated her by forcing her to attend a meeting with colleagues while she was visibly "still lactating underneath her shirt."

Within a month after Phillips contacted the UTMDA Ombuds Office and an ombudsperson attempted to mediate, Walton and Operations Manager Gina Dimiceli began retaliating against Phillips by falsely accusing her of workplace violations.Despite her having been punctual to work and having received positive performance reviews, Phillips was written up for being late to work.

In 2014, Phillips complained to UTMDA Vice Chair Bill Plunkett. Upon her attempt to resign, Plunkett proposed that she continue her employment and work part-time, with the possibility of being promoted to the position of Grant Program Coordinator. Later, however, Phillips was told that she could not be promoted because of her childcare duties, which would not allow her to work remotely.

In 2015, during a UTMDA party, Phillips and her husband told Walton that they were expecting a second child, and he responded, "[T]hat is going to cost you." Subsequently, after Phillips returned from maternity leave, Walton again began to harass and discriminate against her. He was resistant to her requests to use the key to access the facility for nursing mothers. On one or more occasions, upon exiting the facility, Phillips again found Walton standing outside the door and looking inside. On one occasion, Walton commented to her that she was "disgusting." Phillips was also reprimanded for wearing maternity clothes, while other employees were allowed to wear flip-flop sandals and to expose tattoos. After Walton and Dimiceli began heavily scrutinizing Phillips's attendance, conduct, and work performance, and accused her of falsifying her "badge times," Phillips's employment was terminated.

At a meeting on March 14, 2016, Walton, on behalf of UTMDA, presented Phillips with an "Intent to Terminate" letter, stating, in pertinent part, as follows:

It is my intent to terminate your employment for unacceptable conduct for falsification of time. . . .

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

You will have an opportunity to provide a written response as to why this termination should not occur. . . .

You will not be required to report to work during this time period. However, you will be required to remain available and fully cooperate with any requests for information until a final decision is communicated to you.

You are required to return your identification badge and all other University of Texas property to me pending the final decision about your employment. If a decision is made not to terminate your employment, you will be notified of the decision and I will make arrangements to reinstate you and your badge and institutional property will be returned.

Phillips signed the letter, indicating her receipt, and signed a "Demotion/Suspension/Termination Disciplinary Record."

On March 17 and 28, 2016, Phillips sent email responses to UTMDA human resources personnel regarding her concerns that she had been the target of discrimination.

On April 19, 2016, Walton, on behalf of UTMDA, sent Phillips a "Termination Decision" letter, stating, in pertinent part, as follows:

This Letter is to inform you of the termination of your employment with [UTMDA] effective immediately. The decision to terminate your employment was based on your violation of conduct and attendance expectations in accordance with [UTMDA's] Disciplinary Action Policy.

An "Intent to Terminate" memorandum was presented to you on 3/14/2015 that outlined the violations. You were subsequently provided an opportunity to respond to the "Intent to Terminate" memorandum before a final decision was made. I reviewed your response and did not find that you provided new or different information that would change the decision to terminate your employment. In view of these circumstances and as noted above, your employment with [UTMDA] will be terminated effective 4/15/2016. Your employment record will also reflect that you will not be eligible to be rehired in the future.

Please return your identification badge and any [UTMDA] issued property and equipment that is still in your possession immediately. . . .

On October 11, 2016, Phillips filed with the Texas Workforce Commission ("TWC") and Equal Employment Opportunity Commission ("EEOC") a "Charge of Discrimination" ("TWC complaint") against UTMDA. In her TWC complaint, which she attached to her petition, Phillips alleged that, beginning in November 2013 and continuing until March 2016, UTMDA, through its employees, discriminated against her on the basis of, as pertinent here, sex and that it retaliated against her by firing her. Namely, as discussed above, her supervisor and manager subjected her to employment actions not required of similarly situated personnel who were not female. She was also informed that, based on her childcare duties, she could not bepromoted. Phillips asserted that gender was the motivating factor in UTMDA's decision to take adverse employment action against her. Further, UTMDA employees retaliated against her for reporting the discriminatory actions. After she complained to Plunkett, Walton and Dimiceli falsified allegations of work misconduct in order to terminate her employment, and her employment was subsequently terminated. Subsequently, the TWC issued Phillips a right-to-sue letter, and she filed the instant lawsuit.

UTMDA filed a plea to the jurisdiction, arguing that Phillips's suit was barred by sovereign immunity because she did not timely exhaust her administrative remedies by filing a TWC complaint within 180 days of the allegedly discriminatory acts.³ UTMDA asserted that the 180-day period begins when an employee is informed of an allegedly discriminatory employment decision, not when that decision comes to fruition. It asserted that the jurisdictional evidence establishes that it informed Phillips on March 14, 2016 of its intent to terminate her employment. Thus, the deadline for her to file any administrative complaint was September 10, 2016. Because it is undisputed that she did not file her TWC complaint until October 11, 2016, her claims are barred.

In her response to the plea, Phillips argued that she timely exhausted her administrative remedies because only a "final decision triggers the commencement of the statutory limitations period of 180 days." She asserted that the period commenced when UTMDA formally and finally terminated her employment in its April 19, 2016 "Termination Decision" letter. In the April letter, which Phillips incorporated into her response, UTMDA noted that it had previously provided Phillips an opportunity to respond "before a final decision was made" and that her employment would be terminated "effective 4/15/2016." The letter also states that Phillips's employment was terminated "effective immediately," i.e., April 19, 2016. Phillips asserted that, whether she was terminated on April 15 or 19, 2016, her October 11, 2016 TWC complaint was filed within the 180-day limitations period.

In its reply in support of its plea, UTMDA again argued that an adverse employment action accrues when a plaintiff is informed of an alleged discriminatory employment action, and not when the action comes to fruition. And, it is undisputed that UTMDA informed Phillips on March 14, 2016 of its intent to terminate her employment. UTMDA attached to its reply a copy of the March 14, 2016 letter.

After a hearing, the trial court denied UTMDA's plea to the jurisdiction.

Plea to the Jurisdiction

In its sole issue, UTMDA argues that the trial court erred in denying its plea to the jurisdiction because the evidence establishes that Phillips did not exhaust heradministrative remedies by timely filing a TWC complaint. Thus, its immunity is not waived, and the trial court lacked subject-matter jurisdiction over her claims.

I. Standard of Review

We review de novo a trial court's ruling on a jurisdictional plea. See Ben Bolt-Palito Blanco...