University of Texas at Arlington v. James McMerchant

ACCEPTED
15-25-00038-CV
FIFTEENTH COURT OF APPEALS
AUSTIN, TEXAS
8/20/2025 2:59 PM
No. 15-25-00038-CV CHRISTOPHER A. PRINE
CLERK
In the Court of Appeals FILED IN
15th COURT OF APPEALS
for the Fifteenth Judicial District AUSTIN, TEXAS
Austin, Texas 8/20/2025 2:59:46 PM
CHRISTOPHER A. PRINE
Clerk
University of Texas at Arlington,
Appellant,
v.
James McMerchant,
Appellee.

On Appeal from Cause No. 236-337930-22, in the 236th
Judicial District Court of Tarrant County, Texas

REPLY IN SUPPORT OF APPELLANT’S BRIEF

KEN PAXTON KIMBERLY GDULA
Attorney General of Texas Chief for General Litigation
Division
BRENT WEBSTER
First Assistant Attorney General BRIANNA M. KROMINGA
Assistant Attorney General
RALPH MOLINA Brianna.Krominga@oag.texas.gov
Deputy First Assistant Attorney
General Office of the Attorney General
General Litigation Division
AUSTIN KINGHORN P.O. Box 12548, Capitol Station
Deputy Attorney General for Civil Austin, Texas 78711-2548
Litigation (737) 230-5914| FAX: (512) 320-
0667

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Table of Contents

Table of Contents ...................................................................................... 2
Table of Authorities ................................................................................... 3
Summary of Argument .............................................................................. 5
Argument in Reply .................................................................................... 6
I. The Trial Court Erred in Denying Defendant’s Plea to the
Jurisdiction Because Plaintiff-Appellee did not Exhaust his
Administrative Remedies. ...................................................................... 6
II. Defendant’s Motions for Summary Judgement are not Before this
Court thus; Appellee’s Related Arguments Should be Disregarded. .. 13
Prayer ...................................................................................................... 14
Certificate of Compliance ........................................................................ 15

2
Table of Authorities
Cases
Davis v. Ft. Bend County,
893 F.3d 300 (5th Cir. 2018) .................................................................. 6

Fort Bend Cnty., Tex. v. Davis,
587 U.S. 541 (2019) ................................................................................ 8

Fuller v. Le Brun,
616 S.W.3d 31 (Tex. App.—Houston [14th App.] 2020) ...................... 11

Lachicha v. Medina,
657 S.W.3d 829 (Tex. App.—El Paso 2022, no pet.) ............................ 11

Lujan v. Navistar,
555 S.W. 3d 79 (Tex. 2018) ................................................................... 10

Prairie View A&M Univer. V. Chatha,
381 S.W.3d 500 (Tex. 2012) ................................................................ 6, 7

Tex. A&M Univ. DOT v. Reeves,
708 S.W.3d 312 (Tex. App.—15th Dist. Jan. 30, 2025)........................... 7

Waffle House, Inc. v. Williams,
313 S.W. 796 (Tex. 2010) ........................................................................ 6

Williams-Pyro, Inc. v. Barbour,
408 S.W.3d 467 (Tex. App.—El Paso 2013, pet. denied) ....................... 6
Statutes
42 U.S.C. § 2000e-5(b), (e)(1)..................................................................... 8

3
Tex. Civ. Prac. & Rem. Code § 51.014(a)(1)-(15) ................................ 7, 13

Tex. Gov. Code § 311.034 ...................................................................... 6, 7
Rules
Tex. R. App. P. 38.1(i), 38.2(a)); .............................................................. 11

4
Summary of Argument
Plaintiff-Appellee’s Response ignores the bulk of Appellant’s

argument as to why the trial court erred in denying Defendant’s Plea to

the Jurisdiction. Instead, it hinges on the singular argument that the

jurisdictional requirements for bringing his Title VII claim were satisfied

because the continuing violation doctrine applies to his claim, and thus,

his January 13, 2021, EEOC claim was timely filed. This argument is not

only factually unsupported by the record—and in fact directly

contradicted by it—it is not legally sound. As explained in Appellant’s

opening brief and further detail below, Plaintiff-Appellee’s Title VII claim

is jurisdictionally barred because he failed to exhaust his administrative

remedies. This court should reverse the opinion of the court below, render

judgment in favor of Defendant and dismiss Plaintiff’s Title VII claim

against it.

5
Argument in Reply
I. The Trial Court Erred in Denying Defendant’s Plea to the
Jurisdiction Because Plaintiff-Appellee did not Exhaust
his Administrative Remedies.
Plaintiff-Appellee correctly acknowledges that in Texas “the

legislature has mandated that all statutory prerequisites to suit are

jurisdictional requirements in suits against governmental entities.”

Appelles. Br. at 11 (citing Prairie View A&M Univer. V. Chatha, 381

S.W.3d 500, 510 (Tex. 2012); Tex. Gov. Code § 311.034)(emphasis added).

A plaintiff alleging a Title VII violation “must first exhaust her

administrative remedies prior to bringing a civil action.” Id. at 12 (citing

Waffle House, Inc. v. Williams, 313 S.W. 796, 804 (Tex. 2010); Williams-

Pyro, Inc. v. Barbour, 408 S.W.3d 467, 475 (Tex. App.—El Paso 2013, pet.

denied)).

Though Plaintiff-Appellee appears to downplay the jurisdictional

nature of these prerequisites, he nonetheless asks this court to affirm the

trial court’s ruling—effectively urging that federal law controls and

renders Title VII statutory prerequisites merely mandatory rather than

jurisdictional. Appellees.Br. at 12 (citing Davis v. Ft. Bend County, 893

F.3d 300, 308 (5th Cir. 2018). However, his reliance on the Fifth Circuit’s

opinion in Davis is misplaced. This Court has made clear that “[b]ecause
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statutory prerequisites to suit are jurisdictional requirements in all suits

against a government entity in Texas, Title VII's directive is

jurisdictional in this case.” Tex. A&M Univ. DOT v. Reeves, 708 S.W.3d

312, 319 (Tex. App.—15th Dist. Jan. 30, 2025)(citing Tex. Gov't Code §

311.034; Chatha, 381 S.W.3d at 515)(cleaned up).

As the master of his complaint, Plaintiff-Appellee elected to bring

his federal Title VII claim in state court. That choice carries

consequences. Because exhaustion is a jurisdictional requirement in

Texas courts and was not established here, Plaintiff-Appellee’s failure to

exhaust his administrative remedies deprived the trial court of

jurisdiction to proceed. When jurisdiction is challenged in a plea to the

jurisdiction, and is ultimately denied, the State has the right to an

immediate appeal of the interlocutory order. Tex. Civ. Prac. & Rem. Code

§ 51.014(a)(1)-(15). Accordingly, this Court must conduct a de novo review

to determine whether those jurisdictional prerequisites were met. Contra

Appellees.Br. at 10 (“The Court should deny Defendants’ request to

review the Trial Court’s judgment Plaintiff timely and sufficiently

exhausted his administrative remedies.”).

7
A Title VII plaintiff exhausts administrative remedies by filing a

timely charge with the EEOC and receiving a statutory notice of right to

sue. Reeves, 708 S.W.3d at 319-320. The charge must be filed “within 180

days after the alleged unlawful employment practice occurs[s], Fort Bend

Cnty., Tex. v. Davis, 587 U.S. 541, 543 (2019) (quoting 42 U.S.C. § 2000e-

5(b), (e)(1)), unless extended to 300 days by state or local law.

Appellants.Br. at 2.

As detailed in Appellant's opening brief, Plaintiff-Appellee failed to

satisfy this requirement. His only counterargument rests on the

application of the continuing violation doctrine, asserting that “Plaintiff

meets his administrative remedies burden by the continuing violations

doctrine.” See Appellees.Br. at 13. In support of this argument, however,

Plaintiff-Appellee misrepresents appellant’s arguments and both the

trial and appellate records. He claims, “defendants also agree that

plaintiff was completing the job duties of a mail carrier since 2017 but

was never given the corrected job title and/or pay raise between 2017-

October 2020.” Id. This is plainly incorrect. Plaintiff-Appellee’s own

deposition testimony and Appellant’s opening brief confirm otherwise.

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Specifically, the evidence in the record established that Plaintiff-

Appellee was hired as a Warehouse Worker in 2015 (Appellants.Br. at 2;

CR.44. at 13:5-11; CR.68), began cross-training in the mail services

department in 2016 (Appellants.Br. at 2; CR.46. at 19:2-22, 74:6-9;

CR.68), and remained classified as such through 2019 (Appellants.Br. at

2; CR. 52, 68-69, 74). Only in late 2019 did Plaintiff-Appellee request a

title change from Warehouse Worker to Mail Carrier (Appellants.Br. at

2; CR. 68, CR. 51 at 39:7-19). That request was granted in October 2020—

immediately after the university's hiring freeze was lifted. Appellants.Br.

at 2; citing CR. 68.

Yet, Plaintiff-Appellee claims he exhausted his administrative

remedies in a timely manner because he experienced continued

discrimination from 2017 through October 2020 when he was given a pay

increase, therefore the continuing violation doctrine applies, and the 300-

day filing “clock” did not begin to run until October 2020. Appellees.Br.

at 13-14.

The record, however, is undisputed: Plaintiff-Appellee neither

requested nor received a title change or a raise until late 2019 at the

earliest. CR.51:7-25. Plaintiff’s only support for his claim is the vague

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Charge language and a sham affidavit prepared in response to

Defendant’s plea to the jurisdiction and summary judgment motions,

neither of which are sufficient to establish a continuing violation.

Appellees.Br. at 14, Ex. A, D.

First, as detailed in Appellant’s opening brief, Title VII requires an

EEOC charge be filed for each discrete adverse act. Despite his claim, the

Charge does not allege that his promotion request was denied, that he

failed to receive a raise, or any other action that could be construed as

independently adverse. Plaintiff-Appellee instead relies on vague,

generalized allegations of “promotions, titles, and equal pay” issues

beginning in 2017. Such conclusory assertions are insufficient to meet

this requirement or trigger the continuing violation doctrine.

Next, reliance on the affidavit testimony is improper for a variety

of reasons, the most crucial of which is it directly contradicts Plaintiff-

Appellee’s own deposition testimony. CR.51:7-25. The Supreme Court

has made clear that where an affidavit directly contradicts deposition

testimony, without providing an explanation about the discrepancy, the

affidavit testimony must be disregarded. See Lujan v. Navistar, 555 S.W.

3d 79, 85 (Tex. 2018). Here, in his affidavit, Plaintiff testified that he

10
inquired with Jason Welch about being promoted to Mail Carrier and

getting a raise several times from 2017-2019. But Plaintiff testified at his

deposition, he did not ask Welch for a raise until the end of 2019 at the

earliest. CR.51:7-25. No explanation was or has been provided explaining

this discrepancy, therefore his testimony that he requested a raise

“several times” between 2017-2019 must be disregarded. Accordingly, the

undisputed evidence in the record establishes that there was not, and

could not have been, continuous discrimination since 2017.

Even assuming his version of events were true (which they are not),

his argument fails legally. Despite relying heavily on the continuing

violation doctrine to argue exhaustion, Plaintiff-Appellee never directly

addresses Appellant’s textual argument that the doctrine is limited to

hostile work environment claims. Appellees.Br.11-14. Thus, it should be

construed as uncontested, e.g., Lachicha v. Medina, 657 S.W.3d 829, 839

n.4 (Tex. App.—El Paso 2022, no pet.) (deeming an appellee’s argument

waiver by inadequate briefing under Tex. R. App. P. 38.1(i), 38.2(a));

Fuller v. Le Brun, 616 S.W.3d 31, 46 (Tex. App.—Houston [14th App.]

2020) (same).

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But even if the continuing violation doctrine did apply, it would still

not save his claims. Plaintiff-Appellee’s Response argues that when

“continuing discrimination” occurs, the “continuing violation” applies so

that the clock does not begin to run until one of the involved

discriminatory events “should, in fairness and logic, have alerted the

average layperson to protect his or her rights.” Appellees.Br. at 13. In his

view, that event was in October 2020. Id. at 14 (“Plaintiff filed his charge

of discrimination on one hundred and forty-eight (148) days after the last

day of the continued employment action [October 2020] on January 13,

2021.” By this logic, Plaintiff was not alerted to the discrimination he

alleges he experienced until October 2020 – when he received a raise. But

Plaintiff’s own allegations establish that he believed he was being

discriminated against in 2017, and at the end of 2019 at the latest.

Plaintiff cannot have it both ways: argue that he was discriminated

against in 2017 to support his claim, but also that he was not “alerted” to

the discrimination until October 2020 to survive the exhaustion

argument.

Because the continuing violation doctrine does not apply to

Plaintiff-Appellee’s claim and he did not file his Charge within the

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requisite timeframe, he failed to exhaust his administrative remedies.

Accordingly, the lower court lacks jurisdiction over his claim and this

Court should reverse the denial of Defendant’s Plea to the Jurisdiction.

II. Defendant’s Motions for Summary Judgement are not
Before this Court thus; Appellee’s Related Arguments
Should be Disregarded.

Plaintiff-Appellee spends an inordinate amount of briefing arguing

against a position Appellant did not take. Namely, that this Court should

uphold the trial court’s denial of Defendant’s No-Evidence and

Traditional Motions for Summary Judgment. See Appellees.Br.14-30.

However, Appellant did not appeal the denial of these motions, as an

order denying a motion for summary judgment is not typically of the kind

subject to interlocutory appeal. See Tex. Civ. Prac. & Rem. Code §

51.014(a)(1)-(15). Here, Defendant’s Plea to the Jurisdiction was based

on Plaintiff’s failure to exhaust administrative remedies. In contrast,

Defendant’s motions for summary judgment motion were not

jurisdictional in nature but rather based on Plaintiff-Appellee’s failure to

make a prima fascia Title VII claim.

Thus, this Court lacks jurisdiction to reach these issues raised in

Plaintiff-Appellee’s brief. Should the ruling on Defendant’s summary
13
judgments motions become final judgments, Defendant will consider

appealing the rulings at that time. For now, however, the only issue

before this Court is whether the trial court erred in denying Defendant’s

Plea to the Jurisdiction. It did.

Prayer
For the reasons outlined in Appellant’s opening brief and this Reply

in support thereof, this Court should reverse the trial court’s order

denying Defendant’s Plea to the Jurisdiction. CR.170.

Respectfully submitted,

KEN PAXTON
Attorney General of Texas

BRENT WEBSTER
First Assistant Attorney General

RALPH MOLINA
Deputy First Assistant Attorney
General

AUSTIN KINGHORN
Deputy Attorney General for Civil
Litigation

KIMBERLY GDULA
Chief, General Litigation Division

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/s/ Brianna M. Krominga
BRIANNA M. KROMINGA
Attorney-in-Charge
Texas Bar No. 24103252
Office of the Attorney General
Assistant Attorney General
P.O. Box 12548, Capitol Station
Austin, Texas 78711-2548
(737) 230-5914 / Fax (512) 320-0667
Brianna.krominga@oag.texas.gov

Counsel for Appellant
Certificate of Compliance
This document complies with the typeface requirements of Tex. R.

App. P. 9.4(e) because it has been prepared in a conventional typeface no

smaller than 14- point for text and 12-point for footnotes. This document

also complies with the word-count limitations of Tex. R. App. P. 9.4(i), if

applicable, because it contains 1,704 words, excluding any parts

exempted by Tex. R. App. P. 9.4(i)(1).

/s/ Brianna M. Krominga
BRIANNA M. KROMINGA
Assistant Attorney General

15
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Thomas Ray on behalf of Brianna Krominga
Bar No. 24103252
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Envelope ID: 104629234
Filing Code Description: Other Brief
Filing Description: Reply in Support of Appellant's Brief
Status as of 8/20/2025 3:02 PM CST

Associated Case Party: JAMES MCMERCHANT

Name BarNumber Email TimestampSubmitted Status

Ali Crocker 24098868 ali@cralawfirm.com 8/20/2025 2:59:46 PM SENT

Annelis Rico annelis@cralawfirm.com 8/20/2025 2:59:46 PM SENT

Associated Case Party: University of Texas at Arlington

Name BarNumber Email TimestampSubmitted Status

Laura Hendrix laura.hendrix@oag.texas.gov 8/20/2025 2:59:46 PM SENT

Brianna Krominga brianna.krominga@oag.texas.gov 8/20/2025 2:59:46 PM SENT