University of Texas Health Science Center at Houston v. Patricia Marie Carroll

Opinion issued July 16, 2024

In The

Court of Appeals

For The

First District of Texas

————————————

NO. 01-23-00014-CV

———————————

UNIVERSITY OF TEXAS HEALTH SCIENCE CENTER AT HOUSTON,

Appellant

V.

PATRICIA MARIE CARROLL, Appellee

On Appeal from the 234th District Court

Harris County, Texas

Trial Court Case No. 2022-32729

MEMORANDUM OPINION

Appellant University of Texas Health Science Center at Houston (UTHSCH)

appeals from the trial court’s order denying its plea to the jurisdiction in appellee

Patricia Marie Carroll’s suit asserting claims for race and age discrimination and

retaliation under the Texas Commission on Human Rights Act (TCHRA).1 In five

issues, UTHSCH contends that (1) the trial court lacked subject matter jurisdiction

over Carroll’s claims related to 2020 promotions because her claims go beyond the

scope of her Equal Employment Opportunity Commission charge; (2) most of

Carroll’s claims fail because she did not timely exhaust her administrative remedies;

(3) Carroll’s 2021 failure-to-promote race and age discrimination claims fail because

she did not assert a valid claim falling within the TCHRA’s limited waiver of

UTHSCH’s sovereign immunity; (4) Carroll’s 2021 discrimination claims fail

because she failed to rebut UTHSCH’s legitimate, nondiscriminatory reason for not

promoting her; and (5) Carroll’s various retaliation claims fail because she failed to

set forth one or more of the prima facie elements of her claims and otherwise failed

to rebut UTHSCH’s non-retaliatory reason for not promoting her. We reverse and

render.

Background

In 2016, Carroll was employed by Change Healthcare as an Account

Receivable Specialist. Change Healthcare, a contractor, handled some of

UTHSCH’s accounts receivable.

1

TEX. LAB. CODE § 21.051.

2

UTHSCH later decided to begin handling most of its accounts receivable in-

house rather than contracting them out to Change Healthcare. It offered employment

positions to Change Healthcare employees who had worked on UTHSCH’s accounts

receivable commensurate with their positions at Change Healthcare. UTHSCH hired

Change Healthcare employees in two phases. It hired Carroll, then sixty years old,

as a Patient Account Representative II during the first phase in September 2016.

Carroll was later promoted to Accounts Receivable Operations Manager in 2017. In

September 2020, UTHSCH hired two manager-level Change Healthcare employees,

Maria Gonzalez and Jessica Easterwood, as part of the second phase and placed them

into director roles.

In conjunction with the transition of Change Healthcare employees and

related hiring, UTHSCH was preparing to transition its accounts receivable and

billing to Epic Systems, a new software program. UTHSCH posted job openings for

two Director level positions: Director, Charge Capture and Coding, and Director of

Centralized A/R Operations. The positions were open to internal and external

candidates. In anticipation of the transition to Epic, Kristi Bradley, UTHSCH’s Vice-

President and Chief Revenue Cycle Officer, instructed the executive recruiter to seek

candidates with current, strong Epic experience.

3

Carroll did not apply for the position of Director, Charge Capture and Coding.

In May 2020, UTHSCH hired Magdalena Kenworthy, who had recent experience

with Epic.

In October 2020, UTHSCH sought applicants for the second position,

Director of Centralized A/R Operations. The job posting stated, “[s]trong, current

Epic Systems experience is highly preferred.” Carroll applied for this position.

UTHSCH employs a three-step hiring process for administrative and

professional positions. First, an executive recruiter screens and interviews applicants

and selects candidates for consideration by the Search Committee. Second, the

Search Committee reviews the applicant materials and determines which applicants

it will interview. To qualify for a promotion, an applicant must have received a

“meets expectation” rating on her most recent evaluation. Third, the Search

Committee then selects and recommends its top candidates for a final review and

interview by the Hiring Manager, Associate Vice-President Brenda Lehman. Aware

that Carroll had previously filed internal complaints regarding Lehman, Bradley

selected Search Committee members with no knowledge of Carroll’s internal

complaints.

The executive recruiter recommended nine external candidates and one

internal candidate—Carroll—to the Search Committee for review and consideration

for the Director of Centralized A/R Operations position. The Search Committee

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considered it important that a candidate have strong, current experience with Epic

and its implementation, and it deemed certification in Epic “highly desirable.”

Carroll did not have prior Epic experience or Epic certification.2

The Search Committee reviewed Carroll’s application but decided not to

interview her for the position. It forwarded five applicants to Lehman for

consideration. Moleshay Williams, an African American woman over the age of

forty, was hired for the Director position. Williams had Epic certification, recent

experience with Epic and its implementation, and was a presenter for Epic at its 2019

annual conference. She began her employment at UTHSCH on April 5, 2021.

UTHSCH transitioned to Epic in May 2021.

On August 18, 2021, Carroll jointly filed a charge of discrimination with the

Texas Workforce Commission–Civil Rights Division (TWCCRD) and the Equal

Employment Opportunity Commission (EEOC) alleging race and age discrimination

and retaliation. Carroll listed the earliest date of discrimination as October 16, 2020

and the latest date as April 5, 2021. She also checked the box labeled “continuing

action” on her charge.

2

While Carroll did not have an Epic certification or any on-the-job experience with

Epic, her resumé states that she was “on the Curriculum Writing EPIC team and

help[ed] write training materials for the EPIC Implementation team,” and her cover

letter for the Director, Centralized Operations position stated that she was “on the

Curriculum Writing team for the EPIC Implementation Project.”

5

On June 1, 2022, Carroll filed suit against UTHSCH asserting claims for race

and age discrimination and retaliation under the TCHRA. Under “Factual

Background,” Carroll alleged:

• Plaintiff is 65 years old, a Black (African American) woman, with over 40

years of experience in Managed Care Operations, Regulatory Compliance,

Claims Processing, and Revenue Cycle Management.

• Plaintiff asserts race and age discrimination in violation of her rights under

Chapter 21 of the Texas Labor Code, and retaliation as a result of her filing

good faith compliance complaints and being viewed as a whistleblower.

• The most recent incident of age and race discrimination occurred on April 5,

2021, when Plaintiff was denied a promotion to Director, Centralized

Accounts Receivable (AR) Operations. Lesser qualified candidates, who are

not black or older, received promotions.

• Plaintiff was denied a promotion in retaliation for engaging in protected

activity (good faith whistleblowing) that alerted UTHSCH/UT Physicians

(UTP) of billing and financial operations at UTHSCH/UTP that appeared non-

compliant. Plaintiff was subjected to harassment and a hostile work

environment to try to make her retire or constructively discharge her.

• In 2018, Plaintiff applied for a Manager, AR Operations position. Plaintiff’s

boss, Associate Vice President (AVP) Brenda Lehman, advised that she had

selected a Caucasian employee, Tonia Quackenbush, who did not have a

degree and limited AR experience. At the time, Plaintiff had almost 40 years

of experience, including previous manager and director roles and two

bachelor’s degrees. Brenda Lehman told Plaintiff that Tonia was the “best fit”

for the role. Plaintiff alerted HR to the disparity and Plaintiff was promoted

into the role.

• In retaliation, Plaintiff was paid only $500 more per year than a white

employee who was promoted to a newly created manager’s position several

weeks later.

• Plaintiff’s boss, Associate Vice President (AVP) Brenda Lehman, managed

the Change [Healthcare] contract, which provided contract labor in the AR

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department. Two director positions were created for Maria Gonzalez and

Jessica Easterwood, who are outside candidates/former contractors. The

positions were not posted or announced in the AR department for internal

candidates to apply, and neither is Black.

• Plaintiff was not made aware of the two Director positions in her department,

which were given to two former Change Healthcare (Change HC) contractors,

who were underperforming in their roles, yet promoted into UTHSCH/UTP

director roles over a more qualified Black and older current employee.

• On September 18, 2020, all employee evaluations were due, but Plaintiff did

not receive her evaluation from Lehman. Plaintiff knew that she needed her

evaluation to apply if a new Director position opened.

• Plaintiff filed a complaint in October 2020 due to the cruelty of being assigned

to a “deplorable” department, with no available resources. Plaintiff was also

humiliated as she watched others receive promotions while she was

continuously denied the opportunity because of her race and age.

• On November 8, 2020, Plaintiff discovered that Lehman had an electronic

folder of case departmental policies and procedures which could have helped

Plaintiff with the transition of the “deplorable” department. Lehman

suppressed information in a manner that contributed to creating a hostile work

environment and in hopes that Plaintiff retired or quit before the director

position was filled.

• When the new Director position was announced at a manager’s meeting,

Lehman stated that she wanted someone like “Maggie” for the role. Maggie

Kenworthy fit Lehman’s open preference for younger, non-Black candidates

in senior leadership roles. Plaintiff filed another grievance.

• Lehman was the hiring manager for a new Director position. She refused to

document Plaintiff’s stellar performance, which would have assisted Plaintiff

in securing the position. Plaintiff appealed to Human Resources (HR) to have

her evaluation completed, including filing a retaliation and discrimination

grievance, but HR never made Lehman produce the evaluation.

• On April 5, 2021, Plaintiff was passed over for the third Director of AR

Operations position. Moleshay (Shay) Williams, a significantly younger, less

experienced candidate who happens to be Black, assumed the role.

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Under “Causes of Action,” Carroll alleged that, despite her qualifications,

UTHSCH failed to promote her to three positions—AR Operations, AR Centralized

Operations, and Director—based on her race and age and selected individuals

outside of her protected classes, African American and over the age of 40. Carroll

further asserted that UTHSCH retaliated against her by singling her out for excessive

reprimands, continuously denying her a performance review, and denying her career

advancement after she engaged in protected activity by filing an internal complaint

of discrimination and harassment with UTHSCH and a joint charge of discrimination

with the EEOC and TWCCRD.

UTHSCH answered asserting a general denial and affirmative defenses.

On September 1, 2022, UTHSCH filed a plea to the jurisdiction seeking

dismissal of Carroll’s race and age discrimination and retaliation claims because

they were time barred or failed to state a claim within the limited waiver of sovereign

immunity provided by the TCHRA. Specifically, it argued that two of Carroll’s three

failure-to-promote claims should be dismissed because the promotional

opportunities occurred more than 180 days before she filed her charge of

discrimination and were therefore time barred, and her charge did not encompass the

two alleged denials of promotion. As for Carroll’s 2021 failure-to-promote claim,

UTHSCH argued that (1) Carroll’s prima facie race and age discrimination claims

failed because it selected another African American woman over the age of forty for

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the position; (2) her discrimination claims failed because UTHSCH had legitimate,

nondiscriminatory reasons for not promoting Carroll; and (3) Carroll could not show

that UTHSCH’s proffered reasons were pretextual. UTHSCH argued that Carroll’s

retaliation claims were also jurisdictionally barred because (1) Carroll did not

engage in protected activity prior to the complained-of actions; (2) the complained-

of conduct did not constitute adverse employment actions; (3) Carroll could not

establish a causal link between her protected activity and UTHSCH’s failure to

promote her; and (4) Carroll could not overcome UTHSCH’s legitimate,

nondiscriminatory reasons for not promoting her. UTHSCH attached to its plea the

sworn affidavit of Kristi Bradley, Vice-President and Chief Revenue Cycle Officer,

which included as exhibits the job posting for the Director of Centralized A/R

Operations position, Carroll’s charge of discrimination, Williams’s job application,

and the sworn affidavit of Kelly Johnson, UTHSCH’s Director of Vendor

Management & Business Operations who served as Chair of the Selection

Committee.

Carroll responded to UTHSCH’s plea arguing that her claims were not time

barred because UTHSCH’s actions constituted a continuing violation amounting to

evidence of an ongoing discriminatory practice or policy. She further asserted that

UTHSCH’s reliance on the prima facie case at this stage of the litigation was

misplaced, and that she alleged sufficient facts affirmatively demonstrating the trial

9

court’s jurisdiction over her discrimination and retaliation claims under the TCHRA.

She also argued that she had alleged a case of disparate treatment as well as disparate

impact involving race and age discrimination.

In its reply, UTHSCH argued that Carroll failed to include her pre-2021

claims in her charge of discrimination and did not timely file the charge within 180

days of the alleged discriminatory and retaliatory acts and, therefore, her pre-2021

claims were barred by sovereign immunity. It further argued that the continuing

violations doctrine could not salvage Carroll’s time-barred claims, and that the

doctrine does not apply to discrimination and retaliation claims premised on discrete

acts such as those alleged by Carroll. UTHSCH argued that Carroll’s response to its

plea erroneously relied on case law discussing the standard of review applicable to

motions to dismiss under Federal Rule of Civil Procedure 12(b)(6) rather than the

standard of review state courts apply to determine whether a claim against a state

entity falls within TCHRA’s limited waiver of sovereign immunity. UTHSCH

asserted that Carroll failed to raise a fact issue regarding the trial court’s jurisdiction

over her 2021 failure-to-promote race discrimination claim because she did not

establish a prima facie case; UTHSCH presented a legitimate, non-discriminatory

reason for not promoting her; and Carroll failed to show that its proffered reason was

pretextual. UTHSCH argued that Carroll’s disparate impact claim was

10

jurisdictionally barred because she did not allege such a claim in her charge and,

even if she had, her petition failed to allege a viable disparate impact claim.

Following a hearing, the trial court denied UTHSCH’s plea to the jurisdiction

on December 19, 2022. This interlocutory appeal followed.

Standard of Review

“Sovereign immunity and its counterpart, governmental immunity, exist to

protect the State and its political subdivisions from lawsuits and liability for money

damages.”3 Mission Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653, 655 (Tex.

2008) (citing Reata Constr. Corp. v. City of Dallas, 197 S.W.3d 371, 374 (Tex.

2006)). “[S]overeign immunity ‘extends to various divisions of state government,

including agencies, boards, hospitals, and universities.’” Ben Bolt-Palito Blanco

Consol. Indep. Sch. Dist. v. Tex. Pol. Subdivisions Prop./Cas. Joint Self-Ins. Fund,

212 S.W.3d 320, 323–24 (Tex. 2006) (citing Tooke v. City of Mexia, 197 S.W.3d

325, 331 (Tex. 2006); Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692, 694 n.3

(Tex. 2003)). UTHSCH is part of the University of Texas System. See TEX. EDUC.

CODE § 65.02(a)(9).

3

Sovereign immunity protects the State, state agencies, and their officers, while

governmental immunity protects subdivisions of the State, including municipalities

and school districts. Harris Cnty. v. Sykes, 136 S.W.3d 635, 638 (Tex. 2004).

However, both types of immunity afford the same degree of protection and both

levels of government are subject to the Texas Tort Claims Act. TEX. CIV. PRAC. &

REM. CODE § 101.001(3); Mission Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d

653, 655 (Tex. 2008).

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“We interpret statutory waivers of sovereign immunity narrowly, as the Texas

Legislature’s intent to waive immunity must be clear and unambiguous.” See

Garcia, 253 S.W.3d at 655; TEX. GOV’T CODE § 311.034. “Without an express

waiver of sovereign immunity or governmental immunity, courts do not have

subject-matter jurisdiction over suits against the State or its political subdivisions.”

Prater v. Owens, 667 S.W.3d 363, 371 (Tex. App.—Houston [1st Dist.] 2022, no

pet.). UTHSCH’s plea to the jurisdiction is based on sovereign immunity.

“We review de novo a trial court’s ruling on a jurisdictional plea.” Univ. of

Tex. MD Anderson Cancer Ctr. v. Simpson, No. 01-20-00679-CV, 2021 WL

3083104, at *3 (Tex. App.—Houston [1st Dist.] July 22, 2021, no pet.) (mem. op.)

(citing Ben Bolt-Palito Blanco Consol. Indep. Sch. Dist., 212 S.W.3d at 323; City of

Hous. v. Vallejo, 371 S.W.3d 499, 501 (Tex. App.—Houston [1st Dist.] 2012, pet.

denied)). “A plea to the jurisdiction is a dilatory plea that seeks dismissal of a case

for lack of subject-matter jurisdiction.” Id. (citing Harris Cnty. v. Sykes, 136 S.W.3d

635, 638 (Tex. 2004); Villarreal v. Harris Cnty., 226 S.W.3d 537, 541 (Tex. App.—

Houston [1st Dist.] 2006, no pet.)); see Sullivan v. Univ. of Tex. Health Sci. Ctr. at

Hous. Dental Branch, No. 01-08-00327-CV, 2008 WL 5179023, at *1 (Tex. App.—

Houston [1st Dist.] Dec. 11, 2008, pet. denied) (mem. op.). “A defendant may use a

plea to the jurisdiction to challenge whether the plaintiff has met [the] burden of

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alleging jurisdictional facts or to challenge the existence of jurisdictional facts.”

Simpson, 2021 WL 3083104, at *3 (citing Miranda, 133 S.W.3d at 226–27).

When “the plea challenges the existence of jurisdictional facts, we must move

beyond the pleadings and consider evidence when necessary to resolve the

jurisdictional issues, even if the evidence implicates both subject-matter jurisdiction

and the merits of a claim.” Alamo Heights Indep. Sch. Dist. v. Clark, 544 S.W.3d

755, 770–71 (Tex. 2018). “In reviewing such a plea, we take as true all evidence

favorable to the nonmovant, indulging every reasonable inference and resolving any

doubts in the nonmovant’s favor.” Simpson, 2021 WL 3083104, at *3 (citing Alamo

Heights, 544 S.W.3d at 771; Miranda, 133 S.W.3d at 228). “However, we cannot

disregard evidence necessary to show context or evidence and inferences

unfavorable to the nonmovant if reasonable jurors could not do so.” Id. (citing Alamo

Heights, 544 S.W.3d at 771). “This standard mirrors our summary-judgment

standard under Texas Rule of Civil Procedure 166a(c) and places the burden on the

governmental unit, as the movant, to meet the standard of proof to support its

contention that the trial court lacks subject-matter jurisdiction.” Id. (citing Miranda,

133 S.W.3d at 228; Garcia, 372 S.W.3d 629 at 635). It also “allows the state in a

timely manner to extricate itself from litigation if it is truly immune.” Miranda, 133

S.W.3d at 228 (“[T]he purpose of a plea to the jurisdiction [] is to defeat a cause of

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action for which the state has not waived sovereign immunity (usually before the

state has incurred the full costs of litigation).”).

“If a fact issue exists as to whether subject-matter jurisdiction exists and the

issue is inextricably entwined with the merits, the resolution of this issue is for the

fact-finder.” Univ. of Tex. MD Anderson Cancer Ctr. v. Contreras, 576 S.W.3d 439,

443 (Tex. App.—Houston [1st Dist.] 2019, no pet.) (citing Miranda, 133 S.W.3d at

226–28). “But evidence also may undermine the jurisdictional allegations of the

plaintiff’s petition.” Id. (citing Hearts Bluff Game Ranch v. State, 381 S.W.3d 468,

476 (Tex. 2012)). “If the undisputed evidence negates jurisdiction, then the

plaintiff’s suit must be dismissed.” Id. (citing Miranda, 133 S.W.3d at 234).

Discussion

In five issues, UTHSCH contends that the trial court lacked subject matter

jurisdiction over Carroll’s claims of race and age discrimination and retaliation

asserted against it under the TCHRA. We consider each in turn below.

A. Governing Law

Under the TCHRA, an employer commits an unlawful employment practice

if, because of an employee’s race or age, the employer “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.” TEX. LABOR CODE § 21.051(1); see Anderson v. Hous. Cmty. Coll.

14

Sys., 458 S.W.3d 633, 643 (Tex. App.—Houston [1st Dist.] 2015, no pet.). One of

the purposes of the TCHRA is to “provide for the execution of the policies of Title

VII of the Civil Rights Act of 1964.” TEX. LABOR CODE § 21.001(1). “[W]hen

analyzing a claim brought under the TCHRA, we look not only to state cases but

also to analogous federal statutes and the cases interpreting those statutes.” Hartranft

v. UT Health Sci. Ctr.-Hous., No. 01-16-01014-CV, 2018 WL 3117830, at *11 (Tex.

App.—Houston [1st Dist.] June 26, 2018, no pet.) (mem. op.) (citing Garcia, 372

S.W.3d at 634).

“Discrimination and retaliation cases under the TCHRA can be established

with either direct or circumstantial evidence.” Id. “In the absence of direct evidence

of discrimination, the employee must make a prima facie case of discrimination

under the McDonnell-Douglas burden-shifting analysis.” Anderson, 458 S.W.3d at

643. “The three-part burden-shifting framework set forth in McDonnell Douglas

Corp. v. Green, 411 U.S. 792, 802 (1973)[,] enables an employee to establish

discrimination with circumstantial evidence.” Hartranft, 2018 WL 3117830, at *11.

“If the employee can establish a prima facie case of discrimination, a rebuttable

presumption of discrimination arises, which can alone sustain a discrimination

claim.” Id. (citing McDonnell Douglas Corp., 411 U.S. at 802). “But the employer

can defeat this presumption merely by producing evidence of a legitimate,

nondiscriminatory reason for the disputed employment action.” Id. (citing

15

McDonnell Douglas Corp., 411 U.S. at 802). “Once rebutted, the presumption

disappears, and an employee lacking direct evidence cannot prove a statutory

violation without evidence that the employer’s stated reason is false and a pretext

for discrimination.” Id. (citing McDonnell Douglas Corp., 411 U.S. at 802); see

Democratic Schs. Rsch., Inc. v. Rock, 608 S.W.3d 290, 308 (Tex. App.—Houston

[1st Dist.] 2020, no pet.) (“If the employer rebuts the presumption of discrimination,

the burden of production shifts back to the employee to show that the employer’s

stated reason was a pretext for discrimination.”). For that reason, “when

jurisdictional evidence negates the prima facie case or . . . rebuts the presumption it

affords, some evidence raising a fact issue on retaliatory intent is required to survive

a jurisdictional plea.” Alamo Heights, 544 S.W.3d at 764. “In both direct-and

circumstantial-evidence cases, the burden of persuasion remains at all times with the

employee.” Hartranft, 2018 WL 3117830, at *11 (citing McDonnell Douglas Corp.,

411 U.S. at 802).

B. Scope of Carroll’s Charge

In its first issue, UTHSCH contends that the trial court lacked subject matter

jurisdiction over Carroll’s 2020 failure-to-promote claims because those claims go

beyond the scope of her EEOC charge.

In her petition, Carroll alleged that, in September 2020, UTHSCH created two

director positions in her department which were given to two former Change

16

Healthcare contractors, Maria Gonzalez and Jessica Easterwood, neither of whom is

Black, over Carroll, a more qualified Black and older employee. She further alleged

that, in April 2021, she was denied a promotion to a third position, Director of

Centralized A/R Operations, and that Moleshay Williams, a significantly younger,

less experienced candidate who is Black, assumed the role. Carroll alleged that

UTHSCH discriminated against her based on race and age by denying her

promotions to these three positions. In its plea and on appeal, UTHSCH argues that

Carroll’s September 2020 failure-to-promote claims should be dismissed because

her discrimination charge did not encompass the two alleged denials of promotion.

It concedes, however, that Carroll’s April 2021 failure-to-promote claim falls within

the scope of her charge.

“It is well settled that the scope of Title VII and TCHRA litigation is limited

to claims that were included in the administrative charge of discrimination and to

factually related claims that could reasonably be expected to grow out of the

agency’s investigation of the claims stated in the charge.” Cuadra v. Declaration

Title Co., 682 S.W.3d 628, 634 (Tex. App.—Houston [1st Dist.] 2023, no pet.)

(mem. op.) (quoting Lopez v. Tex. State Univ., 368 S.W.3d 695, 701 (Tex. App.—

Austin 2012, pet. denied) (citing Pacheco v. Mineta, 448 F.3d 783, 789 (5th Cir.

2006); Univ. of Tex. v. Poindexter, 306 S.W.3d 798, 810 (Tex. App.—Austin 2009,

no pet.); Thomas v. Clayton Williams Energy, Inc., 2 S.W.3d 734, 738 (Tex. App.—

17

Houston [14th Dist.] 1999, no pet.)); see Santi v. Univ. of Tex. Health Sci. Ctr., 312

S.W.3d 800, 805 (Tex. App.—Houston [1st Dist.] 2009, no pet.) (“A lawsuit under

the [TCHRA] is limited to claims made in the charge or complaint filed with the

EEOC or [TWC] and factually related claims that can reasonably be expected to

grow out of the commission’s investigation.”) (citing Bartosh v. Sam Hous. State

Univ., 259 S.W.3d 317, 321 (Tex. App.—Texarkana 2008, pet. denied)). Courts

construe the administrative complaint liberally and “look slightly beyond its four

corners, to its substance rather than its label” to determine the scope of the

administrative investigation “which can reasonably be expected to grow out of the

charge of discrimination.” Pacheco, 448 F.3d at 788–89 & n.9; City of Sugar Land

v. Kaplan, 449 S.W.3d 577, 581–82 (Tex. App.—Houston [14th Dist.] 2014, no

pet.). “A vague or circumscribed EEOC charge cannot satisfy the exhaustion

requirement for claims it does not fairly embrace.” Marshall v. Fed. Express Corp.,

130 F.3d 1095, 1098 (D.C. Cir. 1997). “[A]llowing a complaint to encompass

allegations outside the ambit of the predicate EEOC charge would circumvent the

EEOC’s investigatory and conciliatory role, as well as deprive the charged party of

notice of the charge, as surely as would an initial failure to file a timely EEOC

charge.” Id. (citing Schnellbaecher v. Baskin Clothing Co., 887 F.2d 124, 127 (7th

Cir. 1989)). While every detail of the complaint need not be presaged in the EEOC

filing, the substance of the claim still must fall “within the scope of ‘the

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administrative investigation that can reasonably be expected to follow the charge of

discrimination.’” Id. (citing Sw. Convenience Stores, LLC v. Mora, 560 S.W.3d 392,

401–02 (Tex. App.—El Paso 2018, no pet.). “’The crucial element of a charge of

discrimination is the factual statement contained’ in the administrative complaint.”

Santi, 312 S.W.3d at 805 (quoting Bartosh, 259 S.W.3d at 321). Courts will not

construe the charge to include facts that were initially omitted. Sw. Convenience

Stores, 560 S.W.3d at 401; Cnty. of Travis ex rel. Hamilton v. Manion, No. 03-11-

00533-CV, 2012 WL 1839399, at *4 (Tex. App.—Austin May 17, 2012, no pet.)

(mem. op.) (citing Harris v. David McDavid Honda, 213 F. App’x 258, 261 (5th Cir.

2006) (per curiam) (not designated for publication)).

In her charge of discrimination, in the space entitled “Discrimination Based

On (Check appropriate boxes),” Carroll checked the boxes labeled “Race,” “Age,”

Retaliation,” and “Other,” and included the typed notation “I am 65 years old and

Black (African American).” She identified the earliest date of discrimination as

October 16, 2020 and the latest date as April 5, 2021. In the narrative portion of her

charge, Carroll stated that Gonzalez and Easterwood, two non-Black former Change

Healthcare employees who were retained by UTHSCH and placed in newly created

director-level positions, were responsible for the “deplorable conditions” of the Case

Department that Carroll took over in September 2020. Carroll stated that she was

“denied a promotion as an exceptional employee but required to ‘clean[]up their

19

mess’ at a manager’s rate of pay.” Carroll stated that when the Director, AR

Centralized Operations position was announced in October 2020, her age and

experience were used to correct Change Healthcare’s operational deficiencies,

including those of the two, newly appointed non-Black Directors, Gonzalez and

Easterwood. Carroll also stated that UTHSCH violated state and federal laws by

engaging in disparate treatment when hiring non-Black employees for Director-level

positions when there are Black employees in the department who are qualified for

the positions.

Construing her EEOC charge liberally, we conclude that Carroll’s charge

included an adequate factual basis to put UTHSCH on notice that Carroll was

complaining that UTHSCH discriminated against her based on race when it denied

her a promotion and instead placed Gonzalez and Easterwood in the Director

positions in 2020. Because we conclude that these claims fall within the scope of her

administrative charge, the trial court did not lack jurisdiction over her 2020 failure-

to-promote claims. See Salman v. KIPP, Inc., No. 01-19-00886-CV, 2021 WL

2931360, at *6 (Tex. App.—Houston [1st Dist.] July 13, 2021, pet. denied) (mem.

op.) (concluding plaintiff provided adequate factual basis to put charter school on

notice that she was complaining of discrimination based on retaliation where she

alleged details of two occasions when she complained about school’s decisions that

could have possibly led to her termination); Alief Indep. Sch. Dist. v. Brantley, 558

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S.W.3d 747, 756–57 (Tex. App.—Houston [14th Dist.] 2018, pet. denied)

(concluding plaintiff’s discrimination charge included adequate factual basis to put

school district on notice that he was complaining of discrimination based on his race

and gender resulting in hostile work environment where charge generally described

actions or practices about which he complained); Santi, 312 S.W.3d at 805 (holding

plaintiff’s EEOC charge included adequate factual basis to put defendant university

on notice that plaintiff was complaining of gender discrimination where she alleged

instances of being treated differently from male counterparts). We overrule

UTHSCH’s first issue.

C. Timeliness of Filing

In its second issue, UTHSCH argues that even if Carroll’s EEOC charge

referenced the purportedly denied promotions in 2020, her failure to file an EEOC

charge within 180 days of the denied promotions rendered the discrimination claims

time barred and the trial court without jurisdiction. It further argues that any

retaliation claim asserted by Carroll based on Carroll receiving an untimely

performance evaluation, UTHSCH’s initial failure to promote her to a manager

position in 2018, her raise of only $500 more a year than a white employee promoted

several weeks later, and her assignment to a deplorable department in October 2020

are similarly time barred. Carroll responds that the discriminatory and retaliatory

21

acts are one continuing violation that constitute an ongoing discriminatory practice

or policy and are therefore not time barred.

A person claiming a violation of the TCHRA must first exhaust her

administrative remedies prior to bringing a civil action. Waffle House, Inc. v.

Williams, 313 S.W.3d 796, 804 (Tex. 2010); Lopez, 368 S.W.3d at 701 (“The

exhaustion of administrative remedies is a jurisdictional prerequisite to file suit for

unlawful employment practices.”) (citing Specialty Retailers, Inc. v. DeMoranville,

933 S.W.2d 490, 492 (Tex. 1996); Santi, 312 S.W.3d at 804 (“Failure to timely file

an administrative complaint deprives Texas trial courts of subject-matter

jurisdiction”))). To exhaust administrative remedies under the TCHRA, a plaintiff

must: (1) file a complaint with the TWC within 180 days of the alleged

discriminatory act, (2) allow the TWC 180 days to dismiss or resolve the complaint,

and (3) file suit in district court within 60 days of receiving a right-to-sue letter from

the TWC and no later than two years after the complaint was filed. See TEX. LABOR

CODE §§ 21.202, .208, .254, .256. “The purposes underlying the administrative-

complaint requirement include giving the charged party notice of the claim,

narrowing the issues for speedier and more effective adjudication and decision, and

giving the administrative agency and the employer an opportunity to resolve the

dispute.” Cuadra, 682 S.W.3d at 634 (quoting Lopez, 368 S.W.3d at 701 (citing

Pacheco, 448 F.3d at 789; Manning v. Chevron Chem. Co., LLC, 332 F.3d 874, 878–

22

79 (5th Cir. 2003)). The timely filing of a sworn complaint under the Labor Code is

“mandatory and jurisdictional.” Schroeder v. Tex. Iron Works, Inc., 813 S.W.2d 483,

486 (Tex. 1991). This 180-day statute of limitations runs from the date the alleged

unlawful employment practice occurs. Prairie View A&M Univ. v. Chatha, 381

S.W.3d 500, 504–05 (Tex. 2012).

An exception to application of the 180-day limitations period for the

discriminatory act is the continuing violation doctrine. Drew v. City of Hous., 679

S.W.3d 779, 785 (Tex. App.—Houston [1st Dist.] 2023, no pet.) (citing Santi, 312

S.W.3d at 804). The doctrine applies when an unlawful employment practice

manifests itself over time, rather than as a series of discrete acts. Id. at 804–05. Under

the continuing violation theory, 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, rather than any discrete occurrence, that gives rise to the

cause of action. Id. at 805 (citing Davis v. Autonation USA Corp., 226 S.W.3d 487,

493 (Tex. App.—Houston [1st Dist.] 2006, no pet.)). “For example, a claim of a

hostile work environment is a continuing violation, while ‘termination, failure to

promote, denial of transfer, or refusal to hire’ are discrete acts.” Id. (quoting Nat’l

R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 114 (2002)). A plaintiff need not

establish that all the alleged discriminatory conduct occurred within 180 days if the

plaintiff can show a series of related acts, including one or more that are within the

23

limitations period. Tex. S. Univ. v. Nayer, No. 01-21-00497-CV, 2023 WL 138621,

at *3 (Tex. App.—Houston [1st Dist.] Jan. 10, 2023, no pet.) (mem. op.) (citing

Pegram v. Honeywell, Inc., 361 F.3d 272, 279 (5th Cir. 2004)). The “focus is on

what event should, in fairness and logic, have alerted the average layperson to act to

protect his or her rights.” Autonation, 226 S.W.3d at 493 (quoting Wal-mart Stores

v. Davis, 979 S.W.2d 30, 42 (Tex. App.—Austin 1998, pet. denied)).

UTHSCH acknowledges that Carroll’s discrimination claim based on its

failure to promote her to the Director of Centralized A/R Operations position in April

2021 is within 180 days of the date she filed her administrative complaint and thus

timely. However, UTHSCH argues that the continuing violation doctrine cannot

salvage her October 2020 failure-to-promote claims and her retaliation claim

because the doctrine does not apply to discrimination and retaliation claims. It

further asserts that, even if it did, the conduct about which Carroll complains—denial

of a timely performance evaluation, department reassignment, and failures to

promote—were discrete acts and do not constitute a continuing violation.

In National Railroad Passenger Corp. v. Morgan, 536 U.S. 101 (2002), the

United States Supreme Court distinguished between discrete acts of discrimination

which are not actionable if time barred, even if they are related to acts alleged in

timely filed charges, and claims which are “comprised of a series of separate acts

24

that collectively constitute one unlawful employment practice.” See id. at 113–15,

117.

Discrete acts such as termination, failure to promote, denial of transfer,

or refusal to hire are easy to identify. Each incident of discrimination

and each retaliatory adverse employment decision constitutes a separate

actionable “unlawful employment practice.”

....

Hostile environment claims are different in kind from discrete acts.

Their very nature involves repeated conduct. The “unlawful

employment practice” therefore cannot be said to occur on any

particular day. It occurs over a series of days or perhaps years and, in

direct contrast to discrete acts, a single act of harassment may not be

actionable on its own.

Id. at 114–15.

Several Texas courts, including this one, have similarly held that the

continuing violation doctrine does not apply to discrete discriminatory and

retaliatory claims. See Nayer, 2023 WL 138621, at *4 (concluding plaintiff’s

involuntary reassignment with accompanying loss in title and pay was discrete act

to which continuing violation doctrine did not apply); San Benito Consol. Indep.

Sch. Dist. v. Leal, No. 13-20-00569-CV, 2022 WL 243725, at *4 (Tex. App.—

Corpus Christi–Edinburg Jan. 27, 2022, no pet.) (mem. op.) (“But like Leal’s

demotion, a failure to promote is a discrete discriminatory act with its own clock for

filing a timely charge of discrimination. . . . It cannot be used ‘to pull in [a] time-

barred discriminatory act.’”) (quotation omitted); Univ. of Texas-Pan Am. v. Miller,

25

No. 03-10-00710-CV, 2013 WL 4818355, at *8 (Tex. App.—Austin Aug. 28, 2013,

no pet.) (mem. op.) (noting “[o]ne-time events such as termination, failure to hire or

promote, denial of transfer, or demotion are discrete acts that are conceptually

different from hostile environment claims and ‘cannot be lumped together with the

day-to-day pattern of racial harassment’”); Santi, 312 S.W.3d at 806 (concluding

plaintiff did not allege continuing violation or “organized scheme leading to and

including a present violation” but rather complained of two discrete acts separated

by more than six months—decision to not renew her contract and denial of right to

attempt to license derivative materials); see also Metro. Transit Auth. of Harris Cnty.

v. Douglas, 544 S.W.3d 486, 497 (Tex. App.—Houston [14th Dist.] 2018, pet.

denied) (concluding continuing violation doctrine does not apply to discrimination

and/or retaliation claims under Morgan); Pharr–San Juan–Alamo Indep. Sch. Dist.

v. Lozano, No. 13-16-00408-CV, 2018 WL 655527, at *3 (Tex. App.—Corpus

Christi–Edinburg Jan. 31, 2018, pet. denied) (mem. op.) (noting distinction between

one-time events such as termination, refusal to hire or promote, or demotion which

are discrete adverse actions that cannot be saved by continuing violation doctrine

and indiscrete employment practices that constitute continuing violations such as

hostile work environment claims).

Carroll’s discrimination claim that UTHSC failed to promote her to a Director

position in October 2020 in favor of Gonzalez and Easterwood, alleges discrete acts

26

to which the continuing violation doctrine does not apply. See Morgan, 536 U.S. at

113; Leal, 2022 WL 243725, at *4. Similarly, Carroll’s retaliation claim alleging

that UTHSCH retaliated against her by denying her a timely performance evaluation

in 2020, increasing her annual salary in 2018 by only $500 more than a white

employee who was promoted several weeks later, and assigning her to a deplorable

department in October 2020 do not constitute “an organized scheme leading to and

including a present violation” as required to show a continuing violation but, rather,

complain of discrete acts which are also time barred. See Cooper-Day v. RME

Petroleum Co., 121 S.W.3d 78, 86 (Tex. App.—Fort Worth 2003, pet. denied)

(concluding plaintiff’s discrimination claims alleging that employer failed to provide

her with assistant and assigned her an extra region were discrete acts that did not

constitute “an organized scheme leading to and including a present violation”);

Nayer, 2023 WL 138621, at *3 (concluding plaintiff’s involuntary reassignment

with accompanying loss in title and pay was discrete act and continuing violation

doctrine did not apply); Leal, 2022 WL 243725, at *3 (concluding discrimination

and retaliation claims based on workspace, demotion, and negative evaluation could

not be saved by continuing violation doctrine). The trial court lacked jurisdiction

over Carroll’s race discrimination and retaliation claims based on these pre-February

2021 events. We sustain UTHSCH’s second issue.

27

D. Carroll’s 2021 Failure-to-Promote Claim

In its third issue, UTHSCH contends that Carroll’s 2021 failure-to-promote

race and age discrimination claims, although timely, fail because she did not assert

a valid claim falling within the TCHRA’s limited waiver of sovereign immunity.

Specifically, it argues that Carroll cannot establish a prima facie discrimination

claim for UTHSCH’s failure to promote her to the Director, A/R Operations role in

April 2021. In its fourth issue, UTHSCH asserts that even if Carroll had stated a

prima facie case, UTHSCH presented legitimate nondiscriminatory reasons for not

promoting her and Carroll did not present any evidence to show that UTHSCH’s

proffered reasons were a pretext for discrimination. Carroll responds that her

pleadings provided more than a scintilla of jurisdictional evidence to raise a genuine

issue of material fact as to each essential element of her race and age discrimination

claims.

The Texas Supreme Court has held that the TCHRA waives a governmental

employer’s immunity for TCHRA claims asserted against the employer, “but only

when the plaintiff states a claim for conduct that actually violates the statute.” Alamo

Heights, 544 S.W.3d at 770. It is well settled that “when the Legislature conditions

an immunity waiver on the existence of a statutory violation, the elements of the

violation are jurisdictional facts.” Id. at 784. Because UTHSCH’s plea challenged

Carroll’s pleadings and the existence of jurisdictional facts establishing the trial

28

court’s jurisdiction over Carroll’s claims, Carroll was required to present evidence

raising a fact issue as to the jurisdictional elements challenged by UTHSCH. See

Alamo Heights, 544 S.W.3d at 764 (stating “when jurisdictional evidence negates

the prima facie case or . . . rebuts the presumption it affords, some evidence raising

a fact issue on retaliatory intent is required to survive a jurisdictional plea”) (citing

Garcia, 372 S.W.3d at 642 (concluding that school district’s evidence that former

employee was replaced by someone three years older negated one of essential

elements of prima facie case and, thus, triggered employee’s duty to raise fact

question on issue of discriminatory intent)).4

When a plaintiff proceeds along the McDonnell-Douglas burden-shifting

framework, “the prima facie case is the necessary first step to bringing a

discrimination claim under the TCHRA” against a governmental employer. Id.

While the plaintiff’s burden at this stage of the proceeding is not onerous, see

Garcia, 372 S.W.3d at 634, if a plaintiff fails to establish a prima facie case against

a governmental unit or overcome the rebuttal evidence, then the trial court lacks

4

Contrary to Carroll’s assertion that only the prima facie elements of her claims are

relevant in determining UTHSCH’s plea, the Texas Supreme Court has held that

“limit[ing] the jurisdictional analysis to the prima-facie-case-element, meaning

evidence regarding the other two stages was not considered . . . was error. All

elements of a TCHRA circumstantial-evidence claim are, perforce, jurisdictional.”

Alamo Heights Indep. Sch. Dist. v. Clark, 544 S.W.3d 755, 783 (Tex. 2018) (stating

that if jurisdictional evidence rebuts prima facie case, the entire McDonnell Douglas

framework is fully implicated, and sufficient evidence of pretext and causation must

exist to survive jurisdictional plea).

29

jurisdiction and must dismiss the case. See id. at 637 (explaining that consequences

of plaintiff’s failure to demonstrate prima facie case “means the plaintiff never gets

the presumption of discrimination and never proves his claim” and “that failure also

means the court has no jurisdiction and the claim should be dismissed”).

The requirements for establishing a prima facie case under TCHRA “vary

depending on the circumstances.” Univ. of N. Tex. Health Sci. Ctr. v. Paul, No. 02-

22-00305-CCV, 2023 WL 4779480, at *3 (Tex. App.—Fort Worth July 27, 2023,

no pet.) (mem. op.). To establish a prima facie case of discrimination based on the

employer’s failure to promote, the employee must show that (1) she is a member of

a protected class; (2) she sought and was qualified for an available employment

position; (3) despite her qualifications, the employee was not selected for the

position; and (4) the employer selected someone not in the employee’s protected

class or continued to seek applicants with the employee’s qualifications. Anderson,

458 S.W.3d at 645 (citing Elgaghil v. Tarrant Cnty. Junior Coll., 45 S.W.3d 133,

139 (Tex. App.—Fort Worth 2000, pet. denied); see also Douglas, 651 S.W.3d at

133; Tex. Dep’t of Aging & Disability Servs. v. Lagunas, 618 S.W.3d 845, 853 (Tex.

App.—El Paso 2020, no pet.); Dall. Indep. Sch. Dist. v. Allen, No. 05-16-00537-CV,

2016 WL 7405781, at *9 n.11 (Tex. App.—Dallas Dec. 22, 2016, pet. denied) (mem.

op.) (citing Anderson, 458 S.W.3d at 645).

30

In its plea, UTHSCH argued that Carroll could not establish the fourth element

of her prima facie race and age discrimination claims because it selected someone

within Carroll’s protected classes (African American and over the age of forty). In

support of its argument, UTHSCH attached to its plea the sworn affidavit of Kristi

Bradley, Vice-President and Chief Revenue Cycle Officer at UTHSCH. Bradley

testified that “UTHSCH extended an offer to Moleshay Williams in February 2021.

She is an African American woman over the age of 40. . . . She began at UTHSCH

on April 5, 2021.” Carroll, however, did not come forth with evidence to raise a fact

issue on the challenged element of her prima facie case. Alamo Heights, 544 S.W.3d

at 764 (stating that when jurisdictional evidence negates prima facie case some

evidence raising fact issue is required to survive jurisdictional plea); Simpson, 2021

WL 3083104, at *3 (noting that once governmental unit asserts and provides

evidentiary support for its plea, plaintiff is then required to show that disputed fact

issue exists on jurisdictional issue). In fact, Carroll’s petition alleges that “on April

5, 2021, [plaintiff] was passed over for a third Director of AR Operations role when

Moleshay (Shay) Williams, a significantly younger, less experienced candidate who

happens to be Black, assumed the role.” Carroll did not present any evidence

demonstrating that UTHSCH filled the Director position for which she had applied

with an individual who was not a member of her protected classes, African American

and over the age of forty. See Rock, 608 S.W.3d at 310 (concluding African

31

American school principal was not “replaced” by another outside of her protected

class, as requirement to establish prima facie case of discrimination, where

Caucasian staff member only temporarily assumed principal’s duties until school

hired permanent replacement who was a member of principal’s protected class);

Gonzalez v. Champion Techs., Inc., 384 S.W.3d 462, 471–72 (Tex. App.—Houston

[14th Dist.] 2012, no pet.) (“Gonzalez does not contest . . . that he was replaced by

someone from the same protected class. Since Gonzalez concedes that element of

his racial discrimination cause of action, the trial court did not err in granting

summary judgment on that cause of action.”); Acosta v. Gov’t Emps. Credit Union,

351 S.W.3d 637, 643 (Tex. App.—El Paso 2011, no pet.) (concluding employee

failed to establish fourth element of prima facie age discrimination claim where

evidence showed that employee was replaced by person within protected class, i.e.,

person over the age of forty, who was only four years younger); see also Pena v.

Cnty. of Starr, No. 01-14-00462-CV, 2013 WL 6672476, at *6 (Tex. App.—San

Antonio Dec. 18, 2013, no pet.) (mem. op.) (concluding plaintiff failed to raise fact

issue on his age discrimination claim where he did not point to any evidence showing

that county replaced him with younger worker).

Carroll argues that UTHSCH is attempting “to usurp the discovery process by

providing the trial court with assertions that have not been fully disclosed through a

discovery process.” She asserts that we should only consider the trial court’s

32

determination that it had subject matter jurisdiction over her claims based on the

sufficiency of the pleadings. Carroll misapprehends the basis of UTHSCH’s plea.

When, as here, a governmental entity “challenges the plaintiff’s case with evidence,

the jurisdictional inquiry focuses on the evidence and whether the plaintiff can create

a fact issue.” Alamo Heights, 544 S.W.3d at 785.

Having failed to establish a prima facie case, Carroll’s race and age

discrimination claims based on UTHSCH’s failure to promote her to the Director,

Centralized A/R Operations role in 2021 are barred. See Garcia, 372 S.W.3d at 636–

37. We sustain UTHSCH’s third issue.5

E. Carroll’s Retaliation Claims

In its fifth issue, UTHSCH contends that Carroll’s retaliation claims do not

fall within the TCHRA’s limited waiver of immunity because (1) most of her claims

were not timely exhausted or fail to identify an activity that is protected under the

TCHRA, (2) the alleged retaliatory acts are not materially adverse employment

actions on which a retaliation claim can be based, and (3) Carroll did not refute

UTHSCH’s evidence showing that none of the Search Committee members who

decided not to advance her application for final review for the Director position in

5

Because Carroll’s race and age discrimination claims fail at the prima facie stage,

we do not reach UTHSCH’s fourth issue contending that the trial court lacked

subject matter jurisdiction over those claims because Carroll failed to rebut

UTHSCH’s legitimate, nondiscriminatory reason for not promoting her.

33

2021 were aware of her protected activity. Carroll responds that she provided more

than a scintilla of jurisdictional evidence to raise a fact issue as to each element of

her retaliation claims.

The TCHRA prohibits an employer from retaliating against an employee for

engaging in certain protected activities. See TEX. LABOR CODE § 21.055. Protected

activities consist of: (1) opposing a discriminatory practice, (2) making or filing a

charge, (3) filing a complaint, and (4) testifying, assisting, or participating in any

manner in an investigation, proceeding, or hearing. See id.; San Antonio Water Sys.

v. Nicholas, 461 S.W.3d 131, 137 (Tex. 2015). To prevail in a retaliation case, the

employee must first establish a prima facie case showing that: (1) she engaged in a

protected activity; (2) an adverse employment action occurred; and (3) a causal link

existed between the protected activity and the adverse action. Chandler v. CSC

Applied Techs., LLC, 376 S.W.3d 802, 822 (Tex. App.—Houston [1st Dist.] 2012,

pet. denied); Donaldson v. Tex. Dep’t of Aging & Disability Servs., 495 S.W.3d 421,

441 (Tex. App.—Houston [1st Dist.] 2016, pet. denied). The causation standard for

the McDonnell Douglas prima facie case element is not onerous and can be satisfied

merely by proving close timing between the protected activity and the adverse

action. Alamo Heights, 544 S.W.3d at 782. However, if the employer provides

evidence of a legitimate reason for the adverse action, the employee must prove the

adverse action would not have occurred “but for” the protected activity. Id. The but-

34

for causation standard is significantly more difficult to prove than prima facie

causation. Id.

1. Prima Facie Case

In her response to UTHSCH’s plea, Carroll argued that she engaged in

protected activity by filing an internal complaint of discrimination and harassment

with UTHSCH in October 2020 and filing a charge of discrimination with the EEOC

and TWCCRD on August 18, 2021. It is undisputed that Carroll’s filing of an

internal discrimination complaint in October 2020 and a charge of discrimination on

August 18, 2021 are protected activities. See TEX. LAB. CODE § 21.055; Nicholas,

461 S.W.3d at 137.6

To satisfy the second element of her prima facie case, Carroll asserts that

UTHSCH took adverse employment action against her after she engaged in

protected activity when it (1) singled her out for excessive discipline, (2) denied her

a timely performance review, (3) assigned her to a deplorable department, and (4)

denied her promotions.

6

To the extent Carroll complains that she was denied promotions due to her internal

complaints that UTHSCH’s billing and coding procedures were non-compliant,

these actions do not qualify as protected activities under the TCHRA and cannot

support her retaliation claim. See Lopez, 259 S.W.3d at 154; Barnes v. Tex. A & M

Univ. Sys., No. XX-XXXXXXX-CV, 2014 WL 4915499, at *4 (Tex. App.—Houston

[14th Dist.] Sept. 30, 2014, pet. denied) (mem. op.) (stating plaintiff must present

evidence that she complained about harassment or discrimination based on race,

color, disability, religion, sex, national origin, or age for complaint to qualify as

protected activity for purpose of establishing prima facie case of retaliation) (citing

Chandler, 376 S.W.3d at 823–24)).

35

a. Excessive Discipline, Delayed Performance Review, and Reassignment

Carroll argues that UTSCH’s actions in excessively reprimanding her, failing

to provide her with a timely performance review, and assigning her to a deplorable

department are actionable adverse employment actions. We disagree. The TCHRA

does not provide relief for every decision made by an employer that might have some

tangential effect upon employment decisions. Anderson, 458 S.W.3d at 644. The

TCHRA does not protect employees from all retaliatory employment actions, only

from actions that are “materially adverse,” which “means it well might have

dissuaded a reasonable worker from making or supporting a charge of

discrimination.” Alamo Heights, 544 S.W.3d at 788 (citing Burlington N. & Santa

Fe Ry. v. White, 548 U.S. 53, 67–68 (2006); Montgomery Cnty. v. Park, 246 S.W.3d

610, 614 (Tex. 2007)). An adverse employment action requires a significant change

in employment status. See Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761

(1998); Univ. of Tex. at El Paso v. Esparza, 510 S.W.3d 147, 160 (Tex. App.—El

Paso 2016, no pet.). Adverse employment decisions generally involve hiring,

granting leave, discharging, promoting, and compensating employees. Green v.

Admins. of Tulane Educ. Fund, 284 F.3d 642, 657 (5th Cir. 2002); Winters v. Chubb

& Son, Inc., 132 S.W.3d 568, 575 (Tex. App.—Houston [14 Dist.] 2004, no pet.);

Elgaghil, 45 S.W.3d at 143. Actions such as disciplinary filings, supervisor’s

reprimands, poor performance reviews, negative peer evaluations, verbal threats to

36

fire, and criticism of the employee’s work do not constitute actionable adverse

employment decisions. See Winters, 132 S.W.3d at 575; Elgaghil, 45 S.W.3d at 143;

see also Navy v. Coll. of the Mainland, 407 S.W.3d 893, 899 (Tex. App.—Houston

[14th Dist.] 2013, no pet.).7

b. 2020 Denial of Promotions

Carroll points to UTHSCH’s failure to promote her to Director positions in

September 2020 as evidence that UTHSCH retaliated against her for engaging in

protected activity. As discussed above, Carroll failed to timely exhaust her

administrative remedies as to these employment actions because she did not file her

EEOC charge within 180 days of the alleged retaliatory conduct, and the continuing

violation doctrine does not apply to discrete discriminatory and retaliatory actions.

See Nayer, 2023 WL 138621, at *4; Leal, 2022 WL 243725 at *3. Further, an

employer cannot retaliate against an employee for engaging in protected activity

when the alleged adverse employment actions occurred before the employee

engaged in protected activity. See Esparza v. Univ. of Tex. at El Paso, 471 S.W.3d

7

We further note that Carroll does not identify the dates on which she alleged she

was subjected to excessive reprimands. Courts will not consider undated allegations

when analyzing whether sovereign immunity has been waived because a plaintiff is

statutorily required to provide at least an approximate date on which the alleged acts

occurred. See Olivarez v. Univ. of Tex. at Austin, No. 03-05-00781, 2009 WL

1423929, at *3 (Tex. App.—Austin May 21, 2009, no pet.) (mem. op.) (stating

undated, conclusory allegations of misconduct will not support a claim of

employment discrimination). Failure to provide dates “deprive[] the trial court of

jurisdiction over any events for which she did not specify dates.” Univ. of Tex. v.

Poindexter, 306 S.W.3d 798, 808 (Tex. App.—Austin 2009, no pet.).

37

903, 914 (Tex. App.—El Paso 2015, no pet.) (“It is axiomatic that UTEP’s actions

that occurred before Esparza filed her EEOC charge could not have been caused by

the EEOC filing.”); Gumpert v. ABF Freight Sys., Inc., 293 S.W.3d 256, 263 (Tex.

App.—Dallas 2009, pet. denied) (concluding plaintiff could not show causal link in

retaliation claim when employer’s alleged acts in retaliation occurred before plaintiff

engaged in any protected activity). Here, UTHSCH’s alleged failure to promote

Carroll to the Director positions in September 2020 predated both her internal

complaint in October 2020 and the filing of her EEOC charge in August 2021.

Therefore, Carroll’s retaliation claims based on UTHSCH’s failure to promote her

in 2020 are barred by sovereign immunity because she did not engage in TCHRA-

protected activity before these employment actions occurred.

c. 2021 Denial of Promotion

UTHSCH does not dispute that Carroll’s filing of an internal complaint of

discrimination in October 2020 was a protected activity, and that its failure to

promote her in April 2021 qualifies as an adverse employment action. It argues,

however, that Carroll cannot establish the third element of her prima facie case

related to this claim—that is, she cannot show a causal link between her internal

complaint and the Search Committee’s decision not to interview her for the position.

In its plea, UTHSCH argued that Carroll could not establish a causal link

between her protected activity and UTHSCH’s failure to promote her because she

38

failed to allege or provide any evidence that the Search Committee knew about

Carroll’s protected activity, i.e., her 2020 internal complaint, at the time it decided

not to promote her. UTHSCH attached to its plea the sworn affidavit of Kelly

Johnson, Director of Vendor Management and Business Operations for UTHSCH.

Johnson stated that she was the Chair of the Search Committee for the Director of

Centralized A/R Operations position for which Carroll applied. She stated that, at

the conclusion of the first round of the selection process, the executive recruiter

recommended nine external candidates and one internal candidate to the Search

Committee for review and consideration. Carroll was the internal candidate. During

the second round, the Search Committee reviewed Carroll’s application and decided

not to interview her or recommend her for a final round interview with Lehman, the

Hiring Manager. Johnson stated that the Search Committee did not receive, review,

or request any information about complaints filed by Carroll with UTHSCH

regarding billing compliance, discrimination, or retaliation, or her performance

evaluations, nor did it engage in any discussions regarding Carroll’s performance

evaluations or internal complaints.

In her affidavit, Bradley, UTHSCH’s Vice-President and Chief Revenue

Cycle Officer, stated that she selected the Search Committee members and expressly

chose individuals with no knowledge of Carroll’s internal complaints to ensure a fair

39

process should Carroll choose to apply for the position.8 Bradley stated that while

she and Lehman knew of Carroll’s internal complaints, Carroll’s application never

reached them for consideration because the Search Committee did not interview or

advance Carroll further in the process. Bradley stated she was unaware Carroll had

even applied for the position before she received her EEOC charge. She stated that

UTHSCH extended an offer to Williams in February 2021, and Williams began her

employment on April 5, 2021.

Temporal proximity between protected activity and an adverse employment

decision can be evidence of a causal connection when a person with input into the

employment decision was aware of the protected activity and when the proximity is

“very close.” Rock, 608 S.W.3d at 314 (quoting Alamo Heights, 544 S.W.3d at 790).

While Carroll alleged that the decisionmakers were aware that she had engaged in

protected activity, she does not point to evidence raising a fact issue regarding

whether those responsible for choosing the candidate to fill the position knew of her

internal complaint. See Alamo Heights, 544 S.W.3d at 789–90 (concluding school

district’s adverse employment action of placing teacher on growth plan was not

causally linked to teacher’s protected activity of filing EEOC charge, as required for

teacher’s retaliation claim against district under TCHRA; although teacher was

8

The record does not include any sworn testimony from the other Search Committee

members on this issue.

40

placed on plan two to three weeks after filing charge, school principal and human

resources representative made decision to implement growth plan before they knew

of charge); see also Ackel v. Nat’l Commc’ns, Inc., 339 F.3d 376, 385 (5th Cir. 2003)

(granting summary judgment in favor of employer on retaliation claim where

employee had no evidence that decisionmaker was aware of employee’s protected

activity); Tex. Health & Human Servs. Comm’n v. Enriquez, 642 S.W.3d 21, 35–36

(Tex. App.—El Paso 2021, no pet.) (finding no causal link where, among other

things, there was no evidence in record that final decisionmakers involved in

plaintiff’s termination had knowledge of plaintiff’s previously filed EEOC

discrimination charge); Marsaglia v. Univ. of Tex. at El Paso, 22 S.W.3d 1, 5 (Tex.

App.—El Paso 1999, pet. denied) (affirming summary judgment in favor of

employer in retaliation case where employee failed to produce evidence that

decisionmaker had knowledge of her protected activity and where decisionmaker

filed affidavit denying he had any such knowledge).

Further, while the causation burden in the prima facie case “can be satisfied

merely by proving close timing between the protected activity and the adverse

action,” Alamo Heights, 544 S.W.3d 782, the Fifth Circuit and this Court have held

that a “four-month time lapse, without more, is insufficient evidence to establish the

causal link required to make a prima facie case of retaliation.” Flanner v. Chase Inv.

Servs. Corp., 600 F. App’x 914, 922 (5th Cir. 2015); Rock, 608 S.W.3d at 314 (“This

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Court has held that four months between an employee’s engaging in protected

activity and the employee's termination, without more, does not raise a fact issue

regarding a causal link.”) (citing Green v. Lowe’s Home Ctrs., Inc., 199 S.W.3d 514,

523 (Tex. App.—Houston [1st Dist.] 2006, pet. denied)). Here, the evidence shows

that approximately four months elapsed between Carroll’s October 2020 internal

complaint and UTHSCH’s extension of the offer to Williams for the position of

Director of Centralized A/R Operations in February 2021.

However, even assuming Carroll stated a prima facie retaliation claim based

on UTHSCH’s 2021 failure to promote her, any presumption raised has been

rebutted because UTHSCH articulated a legitimate, nondiscriminatory reason for

not promoting her: it did not select Carroll for the Director position because she

lacked the “highly preferred” experience with Epic Systems explicitly listed in the

job description and, instead, it promoted Williams who, in addition to being highly

qualified, had extensive, recent experience with Epic and its implementation as well

as Epic certification. The burden then shifted back to Carroll to present evidence that

UTHSCH’s articulated reason was pretextual, and that she would have been

promoted “but for” her internal complaint. See Rock, 608 S.W.3d at 308, 313. In

evaluating but-for causation evidence in retaliation cases, we examine all the

circumstances, including (1) temporal proximity between the protected activity and

the adverse action, (2) knowledge of the protected activity, (3) expression of a

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negative attitude toward the employee’s protected activity, (4) failure to adhere to

relevant established company policies, (4) discriminatory treatment in comparison

to similarly situated employees, and (5) evidence the employer’s stated reason is

false. Alamo Heights, 544 S.W.3d at 790.

Application of these factors does not support a causal link here. As noted

above, the four-month gap between Carroll’s internal complaint and UTHSCH’s

extension of an offer to Williams does not constitute the “very close” temporal

proximity relevant to show causation. See Flanner, 600 F. App’x at 922; Rock, 608

S.W.3d at 314. There is no evidence that the Selection Committee members knew

of Carroll’s 2020 complaint or that UTHSCH expressed a negative attitude toward

Carroll’s protected activity, failed to adhere to its established company policies, or

treated Carroll differently than other similarly situated employees. There is also no

evidence that UTHSCH’s stated reason for promoting Williams rather than Carroll

was false. Although Carroll asserts that the decisionmakers knew she had engaged

in protected activity, she was being treated unfairly because she was the only African

American in her department, and UTHSCH’s proffered reason for not promoting her

was pretext to conceal retaliatory intent, these assertions without evidence in the

record to support them are insufficient to create a fact issue as to causation. See

Alamo Heights, 544 S.W.3d at 792. Simply put, the record bears no evidence that

UTHSCH’s stated reason was mere pretext. Because Carroll has failed to raise a fact

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issue that she would have been promoted but for her internal complaint, immunity

has not been waived as to Carroll’s retaliation claim. The trial court erred in denying

UTHSCH’s plea as to this claim. We sustain UTHSCH’s fifth issue.

F. No Disparate Impact Claim

In her response to UTHSCH’s plea and in her brief on appeal, Carroll asserts

that this case involves a disparate impact claim as well as a disparate treatment claim.

In its reply brief, UTHSCH responds that any such claim is jurisdictionally barred.

A disparate impact claim is substantially different than a disparate treatment

claim. Brownsville Indep. Sch. Dist. v. Alex, 408 S.W.3d 670, 676 (Tex. App.—

Corpus Christi–Edinburg 2013, no pet.) (citing Pacheco, 448 F.3d at 791). As a

result, each type of claim must first be exhausted in the underlying administrative

complaint. See Pacheco, 448 F.3d at 791–92. “A would-be disparate-impact plaintiff

must also allege that her employer uses “(1) a facially neutral policy; (2) that, in fact,

has a disproportionately adverse effect on a protected class.” Poindexter, 306

S.W.3d at 811–12 (quoting Pacheco, 448 F.3d at 791). Failure to allege these

elements in an administrative charge bars a plaintiff from bringing a disparate impact

claim in a court of law. See Pacheco, 448 F.3d at 791–92.

To the extent Carroll seeks to raise a disparate impact claim, such a claim is

barred because her EEOC charge failed to identify a UTHSCH facially neutral policy

that has a disproportionate adverse impact on older individuals or African

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Americans. Thus, the trial court lacked jurisdiction over any such disparate impact

claim. See Poindexter, 306 S.W.3d at 812.

Conclusion

We reverse the trial court’s order denying UTHSCH’s plea to the jurisdiction

and render judgment dismissing Carroll’s claims of race and age discrimination and

retaliation claims for lack of subject matter jurisdiction.

Amparo Monique Guerra

Justice

Panel consists of Justices Kelly, Hightower, and Guerra.

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