Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-17-00196-CV
ALAMO COMMUNITY COLLEGE DISTRICT D/B/A Alamo Colleges,
Appellant
v.
Douglas RYAN,
Appellee
From the 131st Judicial District Court, Bexar County, Texas
Trial Court No. 2013-CI-18732
Honorable Renée Yanta, Judge Presiding
Opinion by: Luz Elena D. Chapa, Justice
Sitting: Marialyn Barnard, Justice
Rebeca C. Martinez, Justice
Luz Elena D. Chapa, Justice
Delivered and Filed: November 1, 2017
REVERSED AND RENDERED
This is an accelerated interlocutory appeal from the trial court’s order partially denying
Alamo Community College District’s (ACCD) motion for summary judgment on Douglas Ryan’s
employment discrimination claims. We hold ACCD conclusively established the trial court lacked
subject matter jurisdiction over the claims because Ryan’s charge of discrimination was not filed
within 180 days after the alleged unlawful employment practice occurred. Accordingly, we reverse
the trial court’s order and render judgment dismissing Ryan’s suit for lack of jurisdiction.
04-17-00196-CV
BACKGROUND
ACCD is a junior college district comprised of five colleges, including Northwest Vista
College. Ryan was appointed to a full-time probationary faculty position at Northwest Vista
College in 2008. A year later, Ryan was placed on tenure track, also a probationary position.
Ryan’s performance was evaluated yearly, and his nine-month contract was renewed each
academic year until 2012.
In 2012, Ryan’s supervisors recommended his contract not be renewed. The
recommendation was based on Ryan’s performance evaluations, disciplinary action due to
“problematic interpersonal relations,” and Ryan’s alleged failure to take remedial steps to address
these issues. On June 28, 2012, Dr. Jacqueline Claunch, the president of Northwest Vista College,
sent Ryan a letter notifying him that his probationary faculty appointment with Northwest Vista
College would not be renewed. The letter stated Ryan was being offered a “terminal year contract”
for the 2012-2013 academic year. The letter advised that if Ryan accepted the terminal year
contract, his “Alamo Colleges employment will cease upon completion of the Spring 2013
semester” and, pursuant to ACCD Procedure D.2.5.1, Ryan would “not be eligible for adjunct
appointment following non-renewal of [his] probationary appointment.” Ryan received the letter
from Dr. Claunch on July 5, 2012. He accepted the terminal contract for the 2012-13 academic
year, but he also filed an administrative appeal or grievance of the notification of nonrenewal. On
September 27, 2012, Dr. Bruce Leslie, Chancellor of ACCD, ruled that “the non-renewal decision
is not reversed.”
Ryan sent a complaint letter to the Equal Employment Opportunity Commission (EEOC)
on January 31, 2013, and on March 8, 2013, he filed a charge of discrimination with the Texas
Workforce Commission-Civil Rights Division (TWC). Both documents asserted Ryan received
notice of the employment decisions on July 5, 2012. And both documents complained of the non-
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renewal, the terminal year contract, and the ineligibility for future appointment as an adjunct,
alleging these actions discriminated against him on the bases of race, gender, and age. After
receiving right to sue notices from the EEOC and the TWC, Ryan filed suit.
Ryan’s petition alleged ACCD committed an unlawful employment practice by
discriminating against him on the basis of sex, race, and age, and alleged claims only under the
Texas Commission on Human Rights Act (TCHRA). ACCD filed a motion for summary judgment
on multiple grounds, including lack of subject matter jurisdiction. ACCD asserted that Ryan failed
to file an administrative complaint alleging discrimination within 180 days of the adverse
employment action and that compliance with the filing deadline is a jurisdictional prerequisite to
suit. See id. TEX. LABOR CODE ANN. § 21.202 (West 2015). Ryan’s response to the jurisdictional
challenge in the motion for summary judgment asserted that Dr. Claunch’s June 28, 2012 letter
was merely a “proposal” or a “notice of an intended adverse action.” Ryan argued that because he
grieved the notice by appealing to the chancellor, “[t]he action did not become an adverse action
until the Chancellor denied his grievance on September 27, 2012,” and his administrative charge
of discrimination was timely filed within 180 days of that action.
After a hearing solely on the jurisdictional ground asserted in ACCD’s motion for summary
judgment, the trial court signed an order partially granting the motion. The order states that
ACCD’s motion for summary judgment “is GRANTED as to all claims EXCEPT Plaintiff Douglas
Ryan’s claim that Alamo Community College District violated the Texas Labor Code by barring
Plaintiff Douglas Ryan from being employed as an instructor at all Alamo Community College
District campuses, not just the Northwest Vista Campus.” ACCD filed a timely interlocutory
appeal of the order that partially denied the jurisdictional ground in its motion for summary
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judgment. 1 See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(8) (West Supp. 2016); Thomas v.
Long, 207 S.W.3d 334, 339-40 (Tex. 2006).
DISCUSSION
The sole issue before us is the trial court’s summary judgment ruling that it has jurisdiction
over Ryan’s claim. We review a summary judgment de novo, taking as true all evidence favorable
to the respondent and indulging all reasonable inferences and resolving any doubts in the
respondent’s favor. Provident Life & Acc. Ins. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003). The
issue of whether a court has subject matter jurisdiction is a question of law that we review de novo.
City of Dallas v. Carbajal, 324 S.W.3d 537, 538 (Tex. 2010) (per curiam).
The TCHRA requires a plaintiff to file an administrative complaint with the TWC or the
EEOC “not later than the 180th day after the date the alleged unlawful employment practice
occurred.” TEX. LABOR CODE ANN. 21.202(a) (West 2015). The provision is mandatory. Specialty
Retailers, Inc. v. DeMoranville, 933 S.W.2d 490, 492 (Tex. 1996). Compliance with the 180-day
administrative filing requirement is a statutory prerequisite to suit, and failure to comply with it is
a jurisdictional bar to a suit against a governmental entity. Prairie View A&M Univ. v. Chatha,
381 S.W.3d 500, 510-14 (Tex. 2012); see TEX. GOV’T CODE ANN. § 311.034 (West 2013). An
unlawful employment practice occurs “when a discriminatory employment decision is made—not
when the effects of that decision become manifest in later events.” Chatha, 381 S.W.3d at 503.
The “180-day limitations period in the TCHRA begins ‘when the employee is informed of the
allegedly discriminatory employment decision.’” Id. at 509 (quoting Specialty Retailers, 933
S.W.2d at 493). In order to invoke the jurisdiction of the trial court, Ryan was therefore required
1
ACCD, as a junior college district, is a governmental unit that may file an interlocutory appeal pursuant to section
51.014(a)(8) of the Texas Civil Practice and Remedies Code. See TEX. CIV. PRAC. & REM. CODE ANN. §§ 51.014(a)(8),
101.001(3)(B) (West Supp. 2016).
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to file his administrative charge of discrimination with the EEOC or the TWC within 180 days of
being informed of the allegedly discriminatory employment decision.
Ryan’s suit complains of the decision not to renew his contract and to instead offer him a
one year terminal contract, after which he would not be eligible for rehire by ACCD as an adjunct.
The undisputed evidence establishes that Ryan received Dr. Claunch’s June 28 letter no later than
July 5. The evidence is also undisputed that Ryan did not file an administrative charge with the
TWC or the EEOC within 180 days of July 5. However, Ryan did file his administrative charge
within 180 days of Chancellor Leslie’s September 27, 2012 denial of his internal grievance.
In response to the motion for summary judgment in the trial court, Ryan argued that Dr.
Claunch’s June 28 notice was simply a “proposal”, which did not become final until Ryan’s
grievance was denied by Dr. Leslie. We disagree. The summary judgment evidence shows Dr.
Claunch notified Dr. Leslie of her recommendation in an internal memorandum dated June 27, and
Dr. Leslie, through a designee, concurred in the decision on June 28. Dr. Claunch then sent Ryan
the June 28, 2012 letter notifying him of the decision. The letter stated in relevant part:
With this memorandum, and in accord with Alamo Colleges Procedure D.10.2.3
Nonrenewal: Non-Tenured Employees, a notification that non-renewal of your
probationary faculty appointment with Northwest Vista College is made.
...
Pursuant to the procedure referenced above, a terminal year contract will be offered
to you for the 2012-2013 Academic Year. Should you accept the terminal year
contract, the following provisions will apply:
1. All Alamo Colleges policies, procedures and work expectations continue to
apply;
2. Alamo Colleges employment will cease upon completion of the Spring
2013 semester;
3. Procedure D.2.5.1 (Hiring Authority, Status, Assignments and Duties)
states that you will not be eligible for adjunct appointment following non-
renewal of your probationary appointment;
...
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Finally, should you disagree with this notification, Mr. Edward Contreras, . . . , may
be contacted . . . for information related to appeal of this decision. . . .
Dr. Claunch’s letter gave Ryan notice of the employment decision. There was nothing tentative or
preliminary about it. See Del. St. College v. Ricks, 449 U.S. 250, 261 (1980) (stating that
“entertaining a grievance complaining of the tenure decision does not suggest that the earlier
decision was in any respect tentative. The grievance procedure, by its nature, is a remedy for a
prior decision, not an opportunity to influence that decision before it is made.”). Although Ryan
chose to grieve the decision, the 180-day time period for filing a claim with the TWC or EEOC
was not stayed by the filing of an administrative appeal or grievance. See id. (holding pendency of
grievance or other method of collateral review of an employment decision does not toll running of
employment discrimination filing periods); Niwayama v. Tex. Tech Univ., 590 Fed. App’x 351,
355 (5th Cir. 2014) (holding filing period is not tolled or affected in any way by pendency of
university grievance procedures that plaintiff chose to pursue but was not legally required to pursue
before filing Title VII lawsuit); Unkefer v. Tex. Youth Comm’n, No. 2-06-466-CV, 2007 WL
1776042, at *3 (Tex. App.—Fort Worth June 21, 2007, no pet.) (mem. op.) (holding 180-day
period began when employee received letter from supervisor informing that her employment was
terminated, not when TYC Executive Director rendered final decision on grievance upholding
termination).
By partially granting the summary judgment, the trial court agreed that ACCD conclusively
established Ryan failed to file a timely administrative complaint regarding ACCD’s June 28, 2012
decision not to renew his contract and to offer him a terminal year contract. Ryan does not
challenge that ruling. However, the trial court denied ACCD’s motion for summary judgment as
to Ryan’s contention that ACCD violated the Texas Labor Code by barring him “from being
employed as an instructor at all Alamo Community College District campuses, not just the
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Northwest Vista Campus.” On appeal, Ryan argues this claim did not accrue when he received
notice of the employment decision from Dr. Claunch because “the decision by [Dr.] Claunch . . .
to bar Professor Ryan from future employment at any and all ACCD campuses was ultra vires and
therefore not actionable until the decision was heard and decided by the ACCD chancellor who
had the sole authority to bar future employment at all ACCD campuses.” Ryan did not raise this
contention in the trial court and points to no evidence or authority that supports it.
Conduct of a government official is ultra vires if it is “without legal or statutory authority.”
Klumb v. Houston Mun. Emps. Pension Sys., 458 S.W.3d 1, 9 (Tex. 2015). Ryan contends that, in
her capacity as president of one of the colleges in the district, Dr. Claunch did not have authority
to make a decision about his eligibility for rehire as an adjunct in the other colleges in the district.
However, the record establishes Dr. Claunch made the decision not to renew Ryan’s contract and
to offer him a terminal year contract. She did not make a decision about Ryan’s eligibility for
rehire. Rather, she simply notified Ryan of the ACCD Board of Trustees’ policy regarding
ineligibility for rehire. The relevant part of ACCD Board of Trustees Policies and Procedures
D.2.5.1 that Dr. Claunch referred to in her June 28, 2012 letter to Ryan states:
The College District shall not hire as adjunct faculty members former College
District faculty members who were denied tenure, or whose tenure track
(probationary) or non-tenure track contracts were not renewed for reasons other
than program reduction.
Thus, Ryan’s ineligibility for an adjunct position throughout the district was a decision made by
the board of trustees and was an automatic consequence of Dr. Claunch’s decision not to renew
his contract. It did not require separate and additional approval by the Chancellor. Therefore, the
180-day period to file an administrative claim started no later than July 5, 2012, when Ryan
received the notification of the employment decision and its consequences. See Chatha, 381
S.W.3d at 509. Ryan’s failure to file a claim with the TWC or EEOC within 180 days deprived the
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trial court of jurisdiction over Ryan’s claims under the TCHRA. We therefore reverse the part of
the trial court’s order that denies ACCD’s motion for summary judgment and render judgment
dismissing Ryan’s employment discrimination claims for lack of jurisdiction.
Because the trial court’s order was not a final judgment, it did not award costs. ACCD’s
brief includes a request that we award it both its trial and appellate costs. ACCD has prevailed on
all claims in this action, and the record does not contain any allegation or evidence of good cause
to adjudge costs other than as required by law. We therefore assess the trial and appellate court
costs against Ryan. See TEX. R. CIV. P. 139; TEX. R. APP. P. 43.4.
Luz Elena D. Chapa, Justice
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