continuing violation in Texas

2009Under the continuing violation doctrine, however, Olivarez has the burden of showing that she suffered discrimination “both prior and during the filing period, that the incidents of harassment were related, 7 and that the harassment was pursuant to an organized scheme.” Celestine, 266 F.3d at 353 & n.2; see Cooper-Day v. RME Petroleum Co., 121 S.W.3d 78, 86 (Tex. App.—Fort Worth 2003, pet. denied).

2009Under the continuing violation doctrine, however, Olivarez has the burden of showing that she suffered discrimination "both prior and during the filing period, that the incidents of harassment were related, and that the harassment was pursuant to an organized scheme." Celestine , 266 F.3d at 353 & n.2; see Cooper-Day v. RME Petroleum Co. , 121 S.W.3d 78, 86 (Tex. App.--Fort Worth 2003, pet. denied).

2018In Heath , the Fifth Circuit merely acknowledged that a "retaliation claim based on discrete acts cannot rely on a continuing violation theory" under Morgan . 850 F.3d at 741 (emphasis added) (citing Morgan , 536 U.S. at 105 , 113 , 122 S.Ct. 2061 ).

2018In Heath , the Fifth Circuit merely acknowledged that a "retaliation claim based on discrete acts cannot rely on a continuing violation theory" under Morgan . 850 F.3d at 741 (emphasis added) (citing Morgan , 536 U.S. at 105 , 113 , 122 S.Ct. 2061 ).

2016A continuing violation is “a persisting and continuing system of discriminatory practices in promotion or transfer that produces effects that may not manifest themselves as individually discriminatory except in cumulation over a period of time.” Huckabay v. Moore, 142 F.3d 233 , 238–39 (5th Cir. 1998) (quoting Messer v. Meno, 130 F.3d 130, 135 (5th Cir. 1997)).

2015The focus is on what event, in fairness and logic, should have alerted the average lay person to act to protect his rights.” Huckabay, 142 F.3d at 238 (quoting Meno, 130 F.3d at 135 ). 9 Viewing the record in his favor, the continuing violation doctrine cannot aid Walck in this case.

2024“When a charge is timely filed as to one act of discrimination, the doctrine of continuing violation expands the scope of those discriminatory events that are actionable, as long as one of the events occurs within the 180-day period.” Wal-Mart Stores, Inc. v. Davis, 979 S.W.2d 30, 41 (Tex. App.—Austin 1998, pet. denied) (citing Glass v. Petro-Tex Chem.

2024See Davis, 979 S.W.2d at 41 ; City of El Paso v. Marquez, 380 S.W.3d 335, 343 (Tex. App.—El Paso 2012, no pet.) (“Under the continuing violation doctrine a plaintiff is relieved from proving that the entire discriminatory practice occurred within the actionable time period, if he can show a series of related acts, one or more which fall within the 180–day statutory deadline.”); Bartosh v. Sam Houston State Univ., 259 S.W.3d 317, 326 (Tex. App.—Texarkana 2008, pet. denied) (“[O]ur research reveals that, in every case applying Morgan or the ‘continuing violation’ doctrine, to the extent the cont

2024“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.

2015Because Dotson filed his charge of discrimination in August 2011, more than 180 days after the allegedly adverse employment action, the trial court lacked jurisdiction over any retaliation claims related to his new role and resulting additional job duties.3 See Schroeder, 813 S.W.2d at 486 (180-day time limit is jurisdictional); Davis, 226 S.W.3d at 491 (“Failure to timely file an administrative complaint deprives Texas trial courts of subject-matter jurisdiction.”); Czerwinski, 116 S.W.3d at 122 (same). 3 We note that the continuing violation doctrine is an exception to the 180-day limitation

2013Pegram v. Honeywell, Inc., 361 F.3d 272, 279 (5th Cir. 2009); Wal-Mart Stores, Inc. v. Davis, 979 S.W.2d 30 , 41–42 (Tex. App.—Austin 1998, pet. denied) .

2011“The end goal of the continuing violation theory is to ‘accommodate plaintiffs who can show that there has been a pattern or policy of discrimination continuing from outside the limitations period into the statutory limitations period, so that all of the discriminated acts committed as part of this pattern or policy can be considered timely.’” Pegram , 361 F.3d at 279 (quoting Celestine v. Petroleos de Venezuella SA , 266 F.3d 343, 352 (5th Cir. 2001)).

2008Recognizing that the "continuing-violation doctrine" has been applied in Texas whistleblower cases, we concluded, "There are sufficient factual allegations in Barth's pleadings that could invoke the continuing-violation doctrine; whether that doctrine applies and which acts triggered the 90-day limitations period are issues that should be resolved by the trier of fact." Id. at 163 (citing Univ. of Tex.-Pan Am. v. De Los Santos, 997 S.W.2d 817, 820 (Tex.App.-Corpus Christi 1999, no pet.)).

2008Recognizing that the “continuing-violation doctrine” has been applied in Texas whistleblower cases, we concluded, “There are sufficient factual allegations in Barth’s pleadings that could invoke the continuing-violation doctrine; whether that doctrine applies and which acts triggered the 90-day limitations period are issues that should be resolved by the trier of fact.” Id. at 163 (citing Univ. of Tex.-Pan Am. v. De Los Santos, 997 S.W.2d 817, 820 (Tex.App.-Corpus Christi 1999, no pet.)).

2011“The end goal of the continuing violation theory is to ‘accommodate plaintiffs who can show that there has been a pattern or policy of discrimination continuing from outside the limitations period into the statutory limitations period, so that all of the discriminated acts committed as part of this pattern or policy can be considered timely.’” Pegram , 361 F.3d at 279 (quoting Celestine v. Petroleos de Venezuella SA , 266 F.3d 343, 352 (5th Cir. 2001)).

2009The doctrine of continuing violation, which may be applied “under limited circumstances,” relieves a plaintiff from proving that all of the alleged acts of discrimination 4 occurred within the filing period provided she can show “a series of related acts, one or more of which falls within the limitations period.” Celestine, 266 F.3d at 351 .

2025Corp., 757 F.2d 1554, 1561 (5th Cir. 1985)).

2024Corp., 757 F.2d 1554, 1560-61 (5th Cir. 1985)); see Morgan, 536 U.S. at 112 (“This Court has [] held that discrete acts that fall within the statutory time period do not make timely acts that fall outside the time period.”).

2010See Cooper-Day v. RME Petroleum Co. , 121 S.W.3d 78, 87 (Tex. App.--Fort Worth 2003, pet. denied) (refusing to apply continuing violation theory to separate pay checks and noting limitations period begins when pay decision is made) (citing United Air Lines, Inc. v. Evans , 431 U.S. 553, 558 , 97 S. Ct. 1885, 1889 (1977); Huckabay v. Moore , 142 F.3d 233, 239 (5th Cir. 1998); Hendrix v. City of Yazoo City, Miss. , 911 F.2d 1102, 1103 (5th Cir. 1990)).

2010See Cooper-Day v. RME Petroleum Co., 121 S.W.3d 78, 87 (Tex.App.-Fort Worth 2003, pet. denied) (refusing to apply continuing violation theory to separate pay checks and noting limitations period begins when pay decision is made) (citing United Air Lines, Inc. v. Evans, 431 U.S. 553, 558 , 97 S.Ct. 1885, 1889 , 52 L.Ed.2d 571 (1977); Huckabay v. Moore, 142 F.3d 233, 239 (5th Cir.1998); Hendrix v. City of Yazoo City, Miss., 911 F.2d 1102, 1103 (5th Cir.1990)).

2016Tex. 2008).2 And citing Abrams v. Baylor College of Medicine, 805 F.2d 528, 533 (5th Cir. 1986), she argues that there is a continuing violation where “the employer’s ambiguous acts serve to obscure the existence of an unlawful policy and fail to alert the average lay person to act to protect his rights,” and where “[plaintiffs] ha[ve] a reasonable basis for assuming” that the employer’s decision is “not a final one.” But courts have not limited “discrete” acts to the four listed in Morgan.

2016Finally, the Abrams court also made clear that “to establish a continuing violation, a plaintiff must show some application of the illegal policy to him (or to his class) within the 180 days preceding the filing of his complaint.” Id. at 533 .

2015“For example, a claim of hostile work environment is a continuing violation, while ‘termination, 22 failure to promote, denial of transfer, or refusal to hire,’ are discrete acts.” Santi, 312 S.W.3d at 805 ; citing National Railroad Passenger Corp., v. Morgan, 536 U.S. 101, 114 , 122 S.Ct. 2061, 2073 , 153 L.Ed.2d 106 (2002).

2013The continuing violation doctrine applies when an unlawful employment practice manifests itself over time, Santi, 312 S.W.3d at 804–05, and a complaint is timely if an act contributing to the claim occurred within the statutory filing period.

2008Recognizing that the "continuing-violation doctrine" has been applied in Texas whistleblower cases, we concluded, "There are sufficient factual allegations in Barth's pleadings that could invoke the continuing-violation doctrine; whether that doctrine applies and which acts triggered the 90-day limitations period are issues that should be resolved by the trier of fact." Id. at 163 (citing Univ. of Tex.-Pan Am. v. De Los Santos, 997 S.W.2d 817, 820 (Tex.App.-Corpus Christi 1999, no pet.)).

2008Recognizing that the “continuing-violation doctrine” has been applied in Texas whistleblower cases, we concluded, “There are sufficient factual allegations in Barth’s pleadings that could invoke the continuing-violation doctrine; whether that doctrine applies and which acts triggered the 90-day limitations period are issues that should be resolved by the trier of fact.” Id. at 163 (citing Univ. of Tex.-Pan Am. v. De Los Santos, 997 S.W.2d 817, 820 (Tex.App.-Corpus Christi 1999, no pet.)).

2016A continuing violation is “a persisting and continuing system of discriminatory practices in promotion or transfer that produces effects that may not manifest themselves as individually discriminatory except in cumulation over a period of time.” Huckabay v. Moore, 142 F.3d 233 , 238–39 (5th Cir. 1998) (quoting Messer v. Meno, 130 F.3d 130, 135 (5th Cir. 1997)).

2015The focus is on what event, in fairness and logic, should have alerted the average lay person to act to protect his rights.” Huckabay, 142 F.3d at 238 (quoting Meno, 130 F.3d at 135 ). 9 Viewing the record in his favor, the continuing violation doctrine cannot aid Walck in this case.

2009The focus is on what event, in fairness and logic, should have alerted the average lay person to act to protect his rights. Â 139 F.3d at 537 ( quoting Glass v. Petro-Tex Chem.

2009The focus is on what event, in fairness and logic, should have alerted the average lay person to act to protect his rights. 139 F.3d at 537 (quoting Glass v. Petro-Tex Chem.

2008However, "[m]arking 'continuing action' is not required to establish a claim of continuing violation so long as 'allegations or predicate facts [are] sufficient in the EEOC complaint' to establish that a continuing violation theory is being alleged." Strouss v. Mich. Dep't of Corr. , 75 F. Supp. 2d 711, 723 (E.D.

2008However, “[m ]arking ‘continuing action’ is not required to establish a claim of continuing violation so long as ‘allegations or predicate facts [are] sufficient in the EEOC com plaint’ to establish that a continuing violation theory is being alleged.” Strouss v. Mich. Dep't of Corr., 75 F. Supp. 2d 711, 723 (E.D.

2005A person cannot waive a right before he is in a position to assert it.” Smith v. McKnight, 240 S.W.2d 368, 371 (Tex.Civ.App.-Amarillo 1951, no writ).

2005A person cannot waive a right before he is in a position to assert it.” Smith v. McKnight , 240 S.W.2d 368, 371 (Tex. Civ.

2024See Davis, 979 S.W.2d at 41 ; City of El Paso v. Marquez, 380 S.W.3d 335, 343 (Tex. App.—El Paso 2012, no pet.) (“Under the continuing violation doctrine a plaintiff is relieved from proving that the entire discriminatory practice occurred within the actionable time period, if he can show a series of related acts, one or more which fall within the 180–day statutory deadline.”); Bartosh v. Sam Houston State Univ., 259 S.W.3d 317, 326 (Tex. App.—Texarkana 2008, pet. denied) (“[O]ur research reveals that, in every case applying Morgan or the ‘continuing violation’ doctrine, to the extent the cont

2024See Davis, 979 S.W.2d at 41 ; City of El Paso v. Marquez, 380 S.W.3d 335, 343 (Tex. App.—El Paso 2012, no pet.) (“Under the continuing violation doctrine a plaintiff is relieved from proving that the entire discriminatory practice occurred within the actionable time period, if he can show a series of related acts, one or more which fall within the 180–day statutory deadline.”); Bartosh v. Sam Houston State Univ., 259 S.W.3d 317, 326 (Tex. App.—Texarkana 2008, pet. denied) (“[O]ur research reveals that, in every case applying Morgan or the ‘continuing violation’ doctrine, to the extent the cont

2022Coll., 850 F.3d 731, 737 (5th Cir. 2017); see Morgan, 536 U.S. at 113 .

2018In Heath , the Fifth Circuit merely acknowledged that a "retaliation claim based on discrete acts cannot rely on a continuing violation theory" under Morgan . 850 F.3d at 741 (emphasis added) (citing Morgan , 536 U.S. at 105 , 113 , 122 S.Ct. 2061 ).

2016State Univ., 715 F.2d 971, 981 (5th Cir. 1983).

1998See Berry, 715 F.2d at 981 .

2015Wesware, Incorporated v. State, 488 S.W.2d 844, 850 (Tex.Civ.App.

1980Wesware, Incorporated v. State, 488 S.W.2d 844, 850 (Tex.Civ.App. — Austin 1972, no writ); Rattikin Title Company v. Grievance Committee, 272 S.W.2d 948, 955 (Tex.Civ.App.— Fort Worth 1954, no writ).

2012See, e.g., Zipes, 455 U.S. at 393 , 102 S.Ct. 1127 (holding that “a timely charge of discrimination ... is not a jurisdictional prerequisite to suit, ... but a requirement that, like a statute of limitations, is subject to waiver, estoppel, and equitable tolling”).

2012See, e.g., Zipes, 455 U.S. at 393 , 102 S.Ct. 1127 (holding that “a timely charge of discrimination ... is not a jurisdictional prerequisite to suit, ... but a requirement that, like a statute of limitations, is subject to waiver, estoppel, and equitable tolling”).

2010See Cooper-Day v. RME Petroleum Co. , 121 S.W.3d 78, 87 (Tex. App.--Fort Worth 2003, pet. denied) (refusing to apply continuing violation theory to separate pay checks and noting limitations period begins when pay decision is made) (citing United Air Lines, Inc. v. Evans , 431 U.S. 553, 558 , 97 S. Ct. 1885, 1889 (1977); Huckabay v. Moore , 142 F.3d 233, 239 (5th Cir. 1998); Hendrix v. City of Yazoo City, Miss. , 911 F.2d 1102, 1103 (5th Cir. 1990)).

2010See Cooper-Day v. RME Petroleum Co. , 121 S.W.3d 78, 87 (Tex. App.--Fort Worth 2003, pet. denied) (refusing to apply continuing violation theory to separate pay checks and noting limitations period begins when pay decision is made) (citing United Air Lines, Inc. v. Evans , 431 U.S. 553, 558 , 97 S. Ct. 1885, 1889 (1977); Huckabay v. Moore , 142 F.3d 233, 239 (5th Cir. 1998); Hendrix v. City of Yazoo City, Miss. , 911 F.2d 1102, 1103 (5th Cir. 1990)).

2024Specifically, UTRGV argued Kim’s “[c]harge is devoid of allegations that an adverse employment action occurred in the 180-day period between May 20, 2021, and November 16, 2021, and the continuing violation doctrine does not apply.” See id.; Univ. of Tex. v. Poindexter, 306 S.W.3d 798, 808 (Tex. App.—Austin 2009, no pet.) (“When such ‘continuing violation’ discrimination occurs, the 180-day filing clock does not begin to run until one of the involved discriminatory events should, in fairness and logic, have alerted the average layperson to act to protect his or her rights.” (citation omitted))

2012Poindexter, 306 S.W.3d at 808 .