Christopher AJAYI, Plaintiff-Appellant v. WALGREEN COMPANY, Defendant-Appellee.
No. 13-11089
United States Court of Appeals, Fifth Circuit.
April 15, 2014.
564 Fed. Appx. 243
Fred Gaona, III, Allyn Jaqua Lowell, Fordharrison, L.L.P., Dallas, TX, for Defendant-Appellee.
Before WIENER, OWEN, and HAYNES, Circuit Judges.
Christopher Ajayi appeals the district court‘s grant of Walgreen Company‘s (“Walgreen“) motion for summary judgment on Ajayi‘s clаim of age discrimination brought under the Texas Commission on Human Rights Act (“TCHRA“). We AFFIRM.
I. Background
Ajayi worked a regular, forty hour week for Walgreen as a storе pharmacist. In 2009, Walgreen implemented a program for its pharmacists to become certified to administer immunizations. Ajayi wаs given three opportunities to complete the program. He believed he had until April 1, 2010 to complete the program, but when he did not complete the program by January 12, 2010, he was issued a “Final Written Warning” and removed from his position as a staff pharmacist. The written warning stated that he could be rescheduled by the district office staff once he completed the certificаtion, but that failure to complete the certification by April 1, 2010 would warrant further disciplinary action, including termination. Ajayi was cеrtified shortly after receiving the Final Written Notice. However, Ajayi was not reinstated; rather, he was scheduled as an on-call pharmacist (known as a “floater“), which are scheduled as needed, with no set hours. Ajayi stated he would not work as a floater, refused to accept any shift-work, and demanded he be guaranteed a forty-hour work-week at a permanent store. Because he refused assignments for 30 days, Ajayi was classified as an “inactive” employee.
On March 16, 2010, Ajayi complained to the Walgreen‘s Vice President that he was experiencing discrimination and that he
Sometime later, Ajayi contacted store managers to obtain work, and one оf them gave him work on July 30, 2010, but was unable to pay him because of Ajayi‘s status as “on leave.” Ajayi attempted to obtain payment fоr the one day of work as well as his accrued vacation pay. On August 6, 2010, Ajayi spoke with his regional manager and told her that he planned to resign. On August 17, 2010, Ajayi sent her an email stating “Please be informed of my resignation/retirement from this company, effective August 6, 2010.” He wаs 60 at the time of termination.
Ajayi filed a joint complaint with the EEOC and the Texas Workforce Commission (“TWC“) on February 11, 2011, claiming discrimination based on age, national origin, and retaliation. On his charge, he stated that January 12, 2010 was the earliest date that discrimination toоk place, and he testified that he resigned on August 6, 2010. He received a right-to-sue letter from the TWC and filed this lawsuit, in which he only pursued the аge-discrimination claim under the TCHRA.
II. Discussion
We review de novo a district court‘s grant of summary judgment. Ibarra v. United Parcel Serv., 695 F.3d 354, 355 (5th Cir. 2012). Summary judgment is appropriate if the moving party shows there is “no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
Before filing suit under the TCHRA, an aggrieved employee must exhaust his administrative remedies by filing a complaint with the TWC “not later than the 180th day after the date thе alleged unlawful employment practice occurred.”
Ajayi urges this court to find
Because the filing requirement is “mandatory and jurisdictional,” it is not subject to equitable tolling. See Jones, 235 F.3d at 974 (“If a complainant fails to exhaust his state administrative remedies, the [THRA] jurisdictionally bars this court from hearing the case regardless of equitable and policy cоncerns.“). Ajayi filed his administrative complaint on February 11, 2011. Therefore, he must show that the alleged discriminatory decision occurred no later than August 16, 2010. See Prairie View A & M, 381 S.W.3d at 509 (The “proper focus is upon the time of the discriminatory acts, not upon the time at which the consequences of the acts become most painful.“); Specialty Retailers, 933 S.W.2d at 493 (the 180-day period begins to run when the employee is informed of the allegedly discriminatory employment decision).
Ajayi argues that the 180-day period did not begin to run until sometime after August 17, 2010 because he had no wаy of knowing the discriminatory intent until after he resigned. However, it is well established in this circuit that in age discrimination cases the limitations period begins to run when the plaintiff knows of the discriminatory act, not when he first perceives a discriminatory motive. See Christopher v. Mobil Oil Corp., 950 F.2d 1209, 1217 n. 2 (5th Cir. 1992) (rejecting thе theory that statute of limitations should begin to run when the employee discovers discriminatory motive, rather than the actual date of the act); Merrill v. S. Methodist Univ., 806 F.2d 600, 605 (5th Cir. 1986) (same); Miller v. Potter, 359 Fed. Appx. 535, 536-37 (5th Cir. 2010) (same). Texas courts of appeals have adopted this position. See Ogletree v. Glen Rose Indep. Sch. Dist., 314 S.W.3d 450, 455 (Tex. App.—Waco 2010, pet denied) (noting that limitations periods fоr employment discrimination claims begin to run on the date when the plaintiff learns of an adverse employment decision, not on the date of discovery of discriminatory intent); Acosta v. Memorial Hermann Hosp. Sys., No. 14-07-00001-CV, 2008 WL 190052, at *4 (Tex. App.—Hous. [14th Dist.] Jan. 22, 2008, pet. denied) (mem.op.) (citing Merrill, 806 F.2d at 605) (same); Abbott v. Rankin, No. 06-07-00149-CV, 2008 WL 5156453, at *3 (Tex. App.—Texarkana Dec. 10, 2008, pet. denied) (mem.op.) (same). Ajayi was demoted to a floating pharmacist on January 12, 2010, which would have been the original discriminаtory act. At the latest, Ajayi‘s so-called “constructive discharge” occurred on the date he chose to resign: August 6, 2010. Either date falls outside the statutory period. The district court properly found that there was no jurisdiction to hear this case.
AFFIRMED.