# Drew v. McGriff Insurance Services, Inc.

> District Court, S.D. Texas · March 13, 2024

URL: https://www.frixlaw.com/law-library/cases/10677494

## Case

- **Court:** District Court, S.D. Texas
- **Decided:** March 13, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10677494

## How later opinions describe it (automated extraction)

- holding that “hiring, firing, promotion, demotion, and transfer decisions, though often touching on pay, should and do accrue” as soon as the employee is aware of the decision

## Opinion text

□ Southern District of Texas
ENTERED
IN THE UNITED STATES DISTRICT COURT Maren 13, 2024
FOR THE SOUTHERN DISTRICT OF TEXAS Nathan Ochsner, Clerk
HOUSTON DIVISION
JOHN DREW, §
§
Plaintiff, §
§
§ CIVIL ACTION NO. 4:22-cv-3340
§
§
MCGRIFF INSURANCE SERVICES, INC., §
§
Defendant. §

ORDER

Pending before the Court is Defendant McGriff Insurance Services, Inc.’s (“Defendant” or
“McGriff’) motion for leave to file amended answer (Doc. No. 13) and motion for summary
judgment (Doc. No. 29). Plaintiff John Drew (“Plaintiff’ or “Drew’”) filed responses thereto (Doc.
Nos. 17, 30), and McGriff replied. (Doc. Nos. 19, 31). Drew also filed a sur-reply to the summary
judgment motion. (Doc. No. 32). Having considered the briefing, summary judgment evidence,
and applicable law, the Court hereby GRANTS McGriff’s motion for leave to file an amended
answer (Doc. No. 13) and GRANTS McGriff’s motion for summary judgment. (Doc. No. 29).
I. Background
This case involves allegations of age-based discrimination against Drew by his employer,
McGriff, a large insurance business. Drew joined McGriff’s Dallas office as a “Producer” in 2002.
In 2004, Drew headed the Dallas office, where he oversaw all of the Dallas-based producers, and
was responsible for recruiting new talent and retaining the existing producers.
In 2008, McGriff formally announced a new producer compensation program (the
“Program”) with several components, including the new forgivable producer loans at issue here.

Drew was 65 years old at the time. (Doc. No. 29-1, at 91). Under this component of the Program,
once a producer reached a certain threshold based upon the size of his or her “book of business,”
the Producer became eligible to participate in the Program. McGriff would give the producer a
forgivable loan, the amount of which was correlated to the size of the producer’s “book of
business.” At a book size of $1 million, the producer would be eligible for a $200,000 loan. At
each increase of $500k in book size, the producer would be eligible for an additional $100K loan.
For example, a producer with a book size of $3.2 million would be eligible for a loan of up to
$600K.' (Doc. No. 29, Ex. B). According to McGriff, one key point of the program was that “not
every producer eligible for a loan [would] receive a loan.” (/d.). Each loan was evidenced by a
promissory note. If the producer met certain criteria, including continued employment, the loan
would be forgiven at the rate of 10% per year over the next ten years. Several years later, McGriff
reduced the forgiveness period to between five and seven years.
Drew learned about the Program when it was announced in 2008. At that time, he was not
selected for participation in the Program and did not receive a forgivable loan. It is undisputed that
in 2008, Drew’s book of business exceeded the $1 million threshold. Drew testified that his book
size was $2.7 million, which would permit him to receive a loan of up to $500K. He repeatedly
complained to McGriff's senior management team about his not being selected to receive the
forgivable loan. Each time, Drew was told that he had not been and would not be selected to
participate in the forgivable loan aspect of the Program. Drew concedes that no one mentioned his
age in these conversations, though there does not appear to be any evidence of any other reason
given by McGriff for its failure to select Drew.

! This example is taken from McGriff’s 2008 memorandum announcing the Program. (Doc. No. 29, Ex. B).

In 2015, Drew was still concerned about McGriff’s failure to include him in the forgivable
loan Program. He flew down to Houston to discuss the Program with Tommy Ebner—the CEO
for McGriff Texas. Ebner told Drew that Drew’s inclusion in “Book Equity” rather than inclusion
in the loan Program, was what Ebner thought was best for Drew.” After this meeting with Drew,
Ebner sent an email to CFO Tommy Lambers with a subject line “john Drew.” The email stated:
John is following up on the meeting we (he and I) had in the summer about not
getting a loan like the others, still in the game supporting company, having great
years in new etc. You and J discussed what we might be able to do as a one off
and deferred discussion etc. John has followed up today and I just told him it was
“on the list.” Please put this on your Christmas/year end list as well. Thanks.
(Doc. No. 30, Ex. F).
Lambert responded with some suggestions (none of which included offering Drew full
participation in the loan Program) and on April 18, 2016, Lambert send Drew an email regarding
the Program. The email stated that Drew had been selected to receive a producer loan; however,
the loan amount was only $50,000. (/d.). This was a fraction of the loan amount promised to others
by the Program. Disappointed, but accepting that $50,000 was probably all he would receive from
the Program, Drew “ceased any further efforts to be included in the program.” (Doc. No. 30, at
12). The $50,000 loan was to be paid in five installments through May 1, 2021. (Doc. No. 32, at
2).
In 2021, Drew spoke with another employee who had not received a forgivable loan, and
came to the conclusion that his non-inclusion in the program was likely due to his age.
Accordingly, in September of 2021, Drew filed his first and only Charge of Discrimination with
the EEOC alleging age discrimination based upon McGriff’s decision to exclude him from the
Program. On August 11, 2022, Drew then initiated this lawsuit in Texas state court alleging
2 The record contains limited evidence on this “Book Equity” program and there is no explanation as to why it might
have been more beneficial for Drew than the forgivable loan program.

violations of the Age Discrimination in Employment Act (“ADEA”) and the Texas Labor Code.
McGriff filed a general denial on September 19, 2022, and then promptly removed the case.
On July 6, 2023, nearly eleven months after the case was first filed, McGriff filed a motion
for leave to file its first amended answer. (Doc. No. 13). This amended answer would replace the
general denial on file and would include affirmative defenses, including statute of limitations and
failure to exhaust administrative remedies. Several months later, on November 14, 2023, McGriff
filed its motion for summary judgment (Doc. No. 29). These two motions are currently pending
before the Court.
According to the record, Drew remains employed by McGriff as an Executive Vice
President and Producer as of the time that the above motions were filed.
IL. Legal Standard
Summary judgment is warranted “if the movant shows that there is no genuine dispute as
to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). “The movant bears the burden of identifying those portions of the record it believes
demonstrate the absence of a genuine issue of material fact.” Triple Tee Golf, Inc. v. Nike, Inc.,
485 F.3d 253, 261 (Sth Cir. 2007) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-25 (1986)).
Once a movant submits a properly supported motion, the burden shifts to the non-movant
to show that the court should not grant the motion. Celotex, 477 U.S. at 321-25. The non-movant
then must provide specific facts showing that there is a genuine dispute. Jd. at 324; Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). A dispute about a material fact
is genuine if “the evidence is such that a reasonable jury could return a verdict for the nonmoving
party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The court must draw all
reasonable inferences in the light most favorable to the nonmoving party in deciding a summary

judgment motion. Jd. at 255. The key question on summary judgment is whether there is evidence
raising an issue of material fact upon which a hypothetical, reasonable factfinder could find in
favor of the nonmoving party. Jd. at 248. It is the responsibility of the parties to specifically point
the Court to the pertinent evidence, and its location, in the record that the party thinks are relevant.
Malacara, 353 F.3d at 405. It is not the duty of the Court to search the record for evidence that
might establish an issue of material fact. Id.
I. Analysis
As an initial matter, this Court must decide whether to grant McGriff leave to file its First
Amended Answer, which was filed July of 2023. (Doc. No. 13). This amended answer would
replace McGriff’s general denial that is currently on file from before this case was removed to
federal court. Importantly, the proposed amended answer would also introduce new affirmative
defenses——statute of limitations and failure to exhaust.
These defenses are key to this case because the timing of Plaintiff's filing presents the
central issue on summary judgment. That is because the ADEA and Texas Labor Code both impose
a requirement for plaintiffs to exhaust their administrative remedies by timely filing a charge of
discrimination with the proper agency.
Section 626(d)(1) of the ADEA provides that “[n]o civil action may be commenced by an
individual under this section until 60 days after a charge alleging unlawful discrimination has been
filed with the Equal Employment Opportunity Commission. Such a charge shall be filed (A) within
180 days after the alleged unlawful practice occurred; or (B) in a case to which section 633(b) of
this title applies,? within 300 days after the alleged unlawful practice occurred[.]” 29 U.S.C. §

3 This refers to “dual-filing” states like Texas.

626(d)(1)(A)-(B). So, under the ADEA, Drew had 300 days from the occurrence of a
discriminatory act to file a charge.
Similarly, Section 21.201 of the Texas Labor Code also requires the filing of a “written
complaint”—Texas’ statutory language for what is commonly referred to as a charge of
discrimination—and further provides that, except with respect to sexual harassment complaints,
“a complaint under this subchapter must be filed not later than the 180th day after the alleged
unlawful employment practice occurred.” Tex. Lab. Code § 21.202 (titled “Statute of
Limitations”). The Texas Labor Code does not have an expanded definition of “occurrence” for
compensation discrimination claims. Indeed, the Texas Labor Code does not define “occurrence”
at all. Prairie View A & M Univ. v. Chatha, 381 S.W.3d 500, 506-507 (Tex. 2012). Case law
provides that an “occurrence” happens, and the limitations period begins to run, when the
employee is informed of the allegedly discriminatory employment decision. Jd. (citing Specialty
Retailers, Inc. v. DeMoranville, 933 S.W.2d 490, 493 (Tex. 1996)).
The complaint is to be filed with the Texas Workforce Commission, and by law, “the
commission shall dismiss an untimely complaint.” Jd. The Fifth Circuit has held that this 180-day
filing deadline, while not jurisdictional, is “mandatory.” Hinkley v. Envoy Air, Inc., 968 F.3d 544,
553 (Sth Cir. 2020). Thus, failure to timely satisfy the administrative-exhaustion requirement bars
recovery and warrants dismissal of any civil action not preceded by a timely written complaint. Jd.
at 552, 555.
A. Failure to Plead Statute of Limitations or Exhaustion Defense
Considering that the key issue on summary judgment is whether Drew timely exhausted
his administrative remedies, the Court must decide whether McGriff’s failure to plead a statute of

limitations or exhaustion defense constitutes a waiver of this requirement, and if so, whether to
permit McGriff to amend its answer.
In his summary judgment response, Drew argues that McGriff failed to plead any
limitations or exhaustion defense and therefore has waived the issue. Drew contends that Rule 8(c)
of the Federal Rules of Civil Procedure requires a defendant to affirmatively plead a
limitations/exhaustion defense. Fed. R. Civ. P. 8(c) (“In responding to a pleading, a party must
affirmatively state any avoidance or affirmative defense, including . . . statute of limitations . . .”);
see also Razo v. State Farm Lloyds, No. 7:17-CV-00352, 2017 WL 6209608, at *2 (S.D. Tex. Dec.
8, 2017) (“Rule 8(c) requires a defendant to affirmatively plead its limitations defense, and thus
the general rule is that such a failure constitutes waiver of the defense.”). Drew argues that because
McGriff did not file for leave to amend its answer until nearly eleven months after the original
petition was filed, McGriff has waived the exhaustion requirement. Drew, therefore, urges the
Court to deny McGriff’s motion for leave to amend.
By contrast, McGriff urges the Court to grant it leave to amend its answer because Drew
has not been prejudiced by a delay and has been on notice since July that McGriff intended to rely
on this defense. Additionally, McGriff appears to argue that even without an affirmative defense
in its pleadings, McGriff should still win summary judgment on the timing issue because the
lawsuit was filed thirteen years after any damage was incurred.
Thus, the Court must determine (1) whether the administrative exhaustion is an affirmative
defense that must be pled or else is waived, and (2) whether McGriff has waived the defense or
adequately preserved it by filing for leave to amend in July of 2023.
First, the Court agrees with Drew that administrative exhaustion is an affirmative defense
that must be pled. When examining Title VII’s analogous administrative exhaustion requirement,

the Fifth Circuit stated that “[flailure to exhaust is an affirmative defense that should be
pleaded.” Davis v. Fort Bend Cnty., 893 F.3d 300 (Sth Cir. 2018), aff'd sub nom. Fort Bend Cnty.,
Tex. v. Davis, 139 S. Ct. 1843, 204 L. Ed. 2d 116 (2019) (emphasis added); see also Flagg v.
Stryker Corp., 819 F.3d 132, 142 (Sth Cir. 2016) (en banc) (Haynes, J., concurring) (“Absent a
jurisdictional nature to ‘failure to exhaust,’ we treat such failures to exhaust as affirmative
defenses, not jurisdictional prerequisites.”). In Davis, the Fifth Circuit found that the defendant
had waived the issue of administrative exhaustion because it “waited five years and an entire round
of appeals all the way to the Supreme Court before it argued that [the plaintiff] failed to exhaust.
On these facts, it is abundantly clear that [the defendant] has forfeited its opportunity to assert this
claim.” Davis, 893 F.3d at 307. Therefore, the Court finds that the administrative exhaustion at
issue here is an affirmative defense can be waived if not adequately pleaded or otherwise
preserved.
Despite this general conclusion, however, the Court finds that McGriff has not waived the
exhaustion defense and hereby grants McGriff’s motion for leave to amend its answer (Doc. No.
13). There are several reasons for this ruling. First, this case is clearly distinguishable from Davis
above. In Davis, the defendant never raised the issue of exhaustion at the district court, instead
choosing to only raise the issue on appeal five years later. By contrast, here, McGriff raised the
defense before the close of discovery and before the dispositive motion deadline.
Additionally, there is no surprise, prejudice, or delay in granting McGriff’s motion for
leave to amend. See Morgan v. Chapman, 969 F.2d 238, 248 (Sth Cir. 2020) (courts should freely
grant leave to amend absent a “substantial reason” for denial, like surprise or prejudice); Dueling
v. Devon Energy Corp., 623 F. App’x 127, 130 (Sth Cir. 2015) (delay can be considered
prejudicial, but only if it would hinder the opposing party’s ability to respond to the proposed

amendment or to prepare for trial). While Drew argues that he would need additional discovery on
the limitations/exhaustion defense, Drew was able to conduct discovery, including depositions,
after the July filing. He had notice of the proposed affirmative defenses at that time and could have
conducted discovery accordingly. Moreover, Drew was able to fully brief the issue of exhaustion
in his response to summary judgment. Accordingly, the Court hereby GRANTS McGriff’s motion
for leave to amend its answer. (Doc. No. 13). Finally, the facts at issue date back to 2008, and
Drew was and is well aware of them. Additional discovery would not change this.
As such, McGriff pleaded its affirmative defenses that Drew failed to timely exhaust his
administrative remedies and that the statute of limitations has run. (Doc. No. 13-2 at 5). The Court
will therefore consider the merits of these defenses.
B. Timeliness of Drew’s EEOC Charge
As noted above, Drew filed his charge with the EEOC in September of 2021 alleging age-
based discrimination. Thus, the traditional lookback period would encompass any discriminatory
act within 300 or 180 days of September 9, 2021 (essentially, earlier in 2021 and the end of 2020).
Drew contends that his filing with the EEOC is timely under the Lilly Ledbetter Fair Pay Act (“the
Ledbetter Act”) because McGriff’s discrimination in compensation taints every payment Drew
could and should have received, making each failure to provide Drew compensation an unlawful
act. McGriff disagrees, and contends that the Ledbetter Act is inapplicable because the alleged
discrimination here is a one-time harm (not receiving a ~$500,000 loan in 2008) rather than the
typical compensation discrimination (involving paying different wages or providing different
benefits to similarly situated employees).
The Ledbetter Act amended the ADEA to read:
For purposes of this section, an unlawful practice occurs, with respect to
discrimination in compensation in violation of this chapter, when a discriminatory

compensation decision or other practice is adopted, when a person becomes subject
to a discriminatory compensation decision or other practice, or when a person is
affected by application of a discriminatory compensation decision or other practice,
including each time wages, benefits, or other compensation is paid, resulting in
whole or in part from such a decision or other practice.
29 U.S.C.A. § 629(d)(3). Thus, each time a person is “affected by application of a discriminatory
compensation decision or other practice,” the cause of action renews or resets.
The Ledbetter Act does not apply to “discrete acts” such as “termination, failure to
promote, denial or transfer, and refusal to hire.” Niwayama v. Tex. Tech Univ., 590 Fed. App’x.
351, 356 (Sth Cir. 2014); See Almond v. Unified Sch. Dist. No. 501, 665 F.3d 1174, 1181 (10th
Cir. 2011) (holding that “hiring, firing, promotion, demotion, and transfer decisions, though often
touching on pay, should and do accrue” as soon as the employee is aware of the decision); See also
Lohrasbi v. Bd. of Trustees of the Univ. of Illinois, 147 F. Supp. 3d 746 (C.D. Ill. 2015) (“Unlike
the further issuance of paychecks based on a discriminatory compensation system, which are
subsequent affirmative discriminatory acts taken by the employer, the denial of emeritus status,
though related to compensation, is a singular, discrete action. Therefore, the 300-day time-limit
does not restart each day that Plaintiff is deprived of Professor Emiritus status.”).
The Court finds that here, denial of a forgivable loan from the Program, though related to
compensation, is a singular discrete action. While Drew contends that his discrimination continued
through May 1, 2021 (the date of the last installment of his $50,000 loan), this was the last
installment of a loan amount made to Drew in 2016. In 2016 Drew was aware that he would only
be receiving 1/10" of the loan amount he claims that he should have received pursuant to the
program. Thus, the discriminatory act of giving him a mere 1/10" may be traced to the specific
day he received the email regarding the $50,000 amount from McGriff executives. Because the
denial of the full loan amount was a singular, discrete action, the Ledbetter Act is inapplicable.

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Hence, Plaintiff's cause of action did not renew “every time McGriff paid . . . other similarly
situated but younger employees pursuant to the Program” as he argues. (Doc. No. 30 at 14).
The Fifth Circuit has addressed a similar timing issue related to the continuing violation
doctrine. Henson v. Bell Helicopter Textron, Inc., 128 Fed. App’x 387, 391 (Sth Cir. 2005). There,
the Circuit discussed the continuing violation doctrine, under which “a plaintiff is relieved of
establishing that all of the alleged discriminatory conduct occurred within the actionable period if
the plaintiff can show a series of related acts, one or more of which falls within the limitations
period.” Henson, 128 Fed. App’x at 391 (Sth Cir.2005) (citing Felton v. Polles, 315 F.3d 470, 487
(Sth Cir. 2002)). A continuing violation “involves repeated conduct,” and “cannot be said to occur
on any particular day.” Jd. It instead “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.” Nat’ R_R.
Passenger Corp. v. Morgan, 536 U.S. 101, 115 (2002). When the employer’s conduct consists of
a series of “discrete discriminatory acts,” the fact that one or more falls within the actionable time
period does not save related claims that would otherwise be time-barred. Jd.
The continuing violation doctrine does not apply when “the relevant discriminatory actions
alleged in the complaint ‘[are] the sort[s] of discrete and salient event[s] that should put an
employee on notice that a cause of action has accrued.’” Windhauser v. Bd. of Supervisors for
Louisiana State Univ. & Agr. & Mech. Coll., 360 Fed. App’x 562, 566 (Sth Cir. 2010) (quoting
Huckabay v. Moore, 142 F.3d 233, 240 (Sth Cir. 1998)) (alteration in original).
After examining the briefing and summary judgment evidence, the Court agrees with
McGriff that the alleged discriminatory act—denying Plaintiff participation in the forgivable loan
Program—was a discrete act that cannot be brought into Plaintiff's actionable period by the
continuing violation doctrine or the Ledbetter Act. When the program was introduced in 2008,

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Drew was 65 years old, and thus was age-protected under both the ADEA and Sections 21.051
and 21.001 of the Texas Labor Code. While the denial occurred multiple times, each instance was
a “discriminatory act” that would have been actionable on its own. There are specific dates in the
record in which Drew was told that he would not qualify for participation. For example, in 2016,
Drew received a $50,000 forgivable loan that was a fraction of the loan amount promised by the
Program. Giving Drew this smaller sized loan was a discrete act, occurring on a specific day, that
could have been an actionable discriminatory act. Even using this 2016 date, which is the /ast date
of discrimination alleged, Drew’s September 2021 charge is still untimely as it was brought five
years after the employment decision.
Moreover, because the discriminatory act alleged in Drew’s 2021 EEOC charge occurred
in 2008 (2016 at the latest), the Court finds that Drew failed to comply with the exhaustion
requirement because the charge was not filed within 300 days of the employment practice. Stated
differently, applying the 300-day lookback period would not bring in the alleged discriminatory
act. Accordingly, McGriff’s motion for summary judgment (Doc. No. 29) is hereby GRANTED
because the claims are administratively barred as being untimely.
C. Applicability of Equitable Estoppel and Equitable Tolling
Notwithstanding the above, Drew contends that McGriff should be estopped from relying
upon a limitations/exhaustion defense due to its “continued concealment and misrepresentation of
facts to lull Drew into failing to timely file a charge of discrimination.” (Doc. No. 30 at 17).
Drew argues that like statute of limitations, filing a charge of discrimination is subject to
waiver, estoppel, equitable tolling or the discovery rule. Granger v. Aaron's, Inc., 636 F.3d 708,
711 (th Cir. 2011). Equitable estoppel prevents a defendant from asserting that a discrimination
charge was untimely as a defense where the defendant concealed facts or misled the plaintiff

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thereby causing the plaintiff to not assert his rights within the limitations period. See Rhodes v.
Guiberson Oil Tools Div., 927 F.2d 876, 878-79 (Sth Cir. 1991); see also Pruet Prod. Co. v. Ayles,
784 F.2d 1275, 1280 (Sth Cir. 1986) (‘An employer’s misrepresentations or wrongful concealment
of facts necessary to support a discrimination charge have given rise to estoppel where they
prevented an employee from asserting his rights timely.”). “An essential element of equitable
estoppel is that the party asserting must have reasonably relied on the statement or the conduct of
the party sought to be estopped.” Tomlin v. Signal Intern., No. 1:11-CV-3, 2012 WL 3984517, at
*5 (E.D. Tex. Aug. 9, 2012).
Drew similarly argues that equitable tolling should apply “Equitable tolling is to be applied
sparingly.” Manning v. Chevron Chem. Co., LLC, 332 F.3d 874, 880 (Sth Cir. 2003) (quoting □□□□□
RR Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002)). As the plaintiff, Drew bears the burden
of demonstrating that equitable tolling should apply. Manning, 332 F.3d at 880. “Equitable tolling
is appropriate if the defendants concealed facts relating to their wrongdoing, which prevented the
plaintiffs from learning the facts necessary to pursue their claims within the limitations period.”
Abecassis v. Wyatt, 785 F. Supp. 2d 614, 652 (S.D. Tex. 2011) (citing Manning) (emphasis added).
The Fifth Circuit has explained that the difference between equitable tolling and equitable estoppel
is the following: “Equitable tolling focuses on the plaintiff's excusable ignorance of the employer's
discriminatory act. Equitable estoppel, in contrast, examines the defendant's conduct and the extent
to which the plaintiff has been induced to refrain from exercising his rights.” Rhodes, 927 F.2d at
878 (quoting Felty v. Graves—Humphreys, Co., 785 F.2d 516, 519 (4th Cir.1986)).
While the Court is sympathetic to Drew’s position and understands that he might not have
suspected the worst in his colleagues, there is no evidence that McGriff concealed or misconstrued
facts regarding Drews’ denial into the program. For years, starting in 2008, Drew followed up and

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tried to get a forgivable loan, and for years McGriff refused. While McGriff employees may have
dodged the question or offered excuses, the facts remain that McGriff never selected Drew for the
Program, and he knew that he was not selected. Therefore, despite McGriff’s failure to give a
reason for its refusal to consider him, McGriff’s alleged “wrongdoing” was apparent each year
that Drew continued to grow his book of business and did not receive a forgivable loan.
Other than McGriff’s allegedly discriminatory reasoning, Drew has put forward no specific
concealed facts that prevented him from learning facts necessary to pursue his claim earlier. From
the record, it does not appear that anything changed in Drew’s position from 2016 to 2021 or that
any new information was uncovered. He was continuously denied access to the program from 2008
until the filing of this lawsuit. These are the “facts necessary to pursue [his] claim” today, and
these facts were known or ascertainable by Drew the first time he was not given a loan while his
colleagues were.
As such, equitable tolling and equitable estoppel do not apply here, and Drew’s claim
remains administratively barred. Drew did not need to know about the discriminatory motive in
order to know the “facts necessary to pursue his claims.” The case law is clear that “[t]he date of
the discriminatory act controls, not some later date when the employee discovers the act is
discriminatory.” Abbott v. Rankin, No. 06-07-00149-CV, 2008 WL 5156453, at *3 (Tex. App.—
Texarkana Dec. 10, 2008, pet. denied) (emphasis added).

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IV. Conclusion
Having considered the motions, summary judgment evidence, and applicable law, the
Court hereby GRANTS McGriff’s motion for summary judgment (Doc. No. 29). McGriff’s motion
for leave to file an amended answer (Doc. No. 13) is also granted. This matter is hereby dismissed
with prejudice.

Signed at Houston, Texas, this } 3 day of March, 2024.
Petal
United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10677494. Public record. Not legal advice.