Vida, Thomas A. v. University of Texas Houston Health Science Center--Appeal from 281st District Court of Harris County

Affirmedand Opinion filed November 27, 2002.

In The

Fourteenth Court of Appeals

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NO. 14-01-01162-CV

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THOMAS A. VIDA, Appellant

V.

UNIVERSITY OF TEXAS HOUSTON HEALTH SCIENCE CENTER, Appellee

On Appeal from the 281st District Court

Harris  County, Texas

Trial Court Cause No. 2001-13609

M E M O R A N D U M O P I N I O N

Appellant Thomas A. Vida appeals from a summary judgment dismissing his claims for age and disability discrimination under section 21.001, et seq., of the Texas Labor Code. Because all dispositive issues are clearly settled in law, we issue this memorandum opinion. See Tex. R. App. P. 47.1.

The facts are known to the parties, so we do not recite them in detail here. On July 29, 1997, Vida was notified that his appointment as a tenured professor would end on August 31, 1998. On May 3, 2000 he filed a complaint with the Equal Employment Opportunity Commission (EEOC) and the Texas Commission on Human Rights (TCHR). In March 2001, he filed suit alleging that his removal from a tenured position constituted age and disability discrimination.

Vida=s administrative complaints had to be filed within 180 days after the alleged unlawful employment practice occurred. See Tex. Lab. Code ' 21.202; Schroeder v. Texas Iron Works, Inc., 813 S.W.2d 483, 485-86 (Tex. 1991). Obviously, they were not. The University moved for summary judgment on this basis.

On appeal, Vida argues his complaints were timely because the loss of tenure was part of a continuing violation. But Vida=s petition pleaded only one act of discriminationBthe loss of tenure. We cannot consider allegations not pleaded. See SmithKline Beecham Corp. v. Doe, 903 S.W.2d 347, 354 (Tex. 1995). Moreover, the statement he filed in response to the summary judgment was neither signed nor sworn, and thus cannot be considered. See Ford Motor Company v. Leggat, 904 S.W.2d 643 (Tex. 1995) (recognizing that affidavits must be in writing, signed and sworn to); Perkins v. Crittenden, 462 S.W.2d 565 (Tex. 1970) (holding that unsworn statement was not an affidavit and could not support summary judgment). The affidavits he filed by co-workers allege other discriminatory acts, but give no indication when they occurred.

ADiscrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges.@ National Railroad Passenger Corp. v. Morgan, ___ U.S. ___, 122 S. Ct. 2061, 2066 (2002). The loss of tenure was not a continuing violation but a discrete act, and thus barred by limitations.

Finding no error, we affirm the judgment.

/s/ Scott Brister

Chief Justice

Judgment rendered and Opinion filed November 27, 2002.

Panel consists of Chief Justice Brister and Justices Hudson and Fowler.

Do Not Publish CTex. R. App. P. 47.3(b)