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Ferguson v. Texas Department of Transportation

Court of Appeals of Texas, Eleventh District

August 31, 2017


         On Appeal from the 35th District Court Brown County, Texas Trial Court Cause No. CV14-01-006

          Panel consists of: Wright, C.J., Willson, J., and Bailey, J.



         Melissa K. Ferguson appeals the trial court's summary judgment in favor of her previous employer, the Texas Department of Transportation. In her first four issues, Ferguson contends that she established a prima facie case of failure to accommodate, disability discrimination, and retaliation and that TXDOT's stated reasons for her termination were false and pretextual. In her final two issues, she asserts that the trial court abused its discretion when it denied her motion to strike new evidence and that the trial court's judgment is void because the assigned trial judge could not properly preside over the case. We affirm.

         I. Introduction and Procedural History

         In April 1996, Ferguson began employment with TXDOT as a receptionist. After six months, Ferguson moved to the accounting department and, after several years, was promoted to an Account Specialist II, where she remained until her date of termination in 2012. Ferguson's job duties included paying vendor invoices and providing customer service. In September 2013, Ferguson filed suit in Travis County against TXDOT and alleged claims for failure to accommodate, disability discrimination, and retaliation. In response, TXDOT moved to transfer venue to Brown County, which was granted. TXDOT also filed a plea to the jurisdiction and filed a combined no-evidence and traditional motion for summary judgment. In March 2015, Judge Stephen Ellis recused himself, and retired Judge Frank E. Griffin was assigned to preside over the case. After a hearing, Judge Griffin granted TXDOT's motion for summary judgment. Ferguson appeals.

         II. Overview of Summary Judgment Evidence

         A. TXDOT's Reorganization from District to Regional Offices

         In late 2009 or early 2010, TXDOT underwent a reorganization process where the agency switched from district to regional offices. As a result, TXDOT employees experienced an increased workload, and their supervisors began to evaluate them under a stricter standard. Many employees either retired or quit because of the increased workload. In addition, Ferguson's lead worker changed from David Haley to Erma Windham. At that time, Ferguson also had to report to Michelle Cravotta, Accounting Manager for the North Region, and to Kysha Holland, Accounting Supervisor.

         B. Ferguson's Requests

         In July and August 2011, Ferguson contacted North Region directors, Tim Powers and Gus Khankarli, to inquire about a possible transfer into another department. Ferguson requested another transfer in November 2011 because of the "hostile and unsatisfactory working environment" created by Windham and Cravotta. Ferguson stated that Windham treated her differently from a certain male employee; Ferguson also asserted that her working environment adversely affected her physical and mental health. In support of her mental and physical claims, she attached medical documents, which indicated that her depression worsened while at work and caused hair loss, nausea, and anxiety.

         After being diagnosed with severe clinical depression in October 2011, Ferguson requested an accommodation for her illness in December of that year. She alleged in her Americans with Disabilities Act accommodation request that she could perform her essential work functions with a supervisory change. As part of her request, she attached a medical evaluation from Dr. Michael Schultz, who supported her medical claims. TXDOT denied this request and stated that "your request that your supervisor be replaced [is] not a reasonable accommodation." In February 2012, Ferguson submitted a second accommodation request and attached medical evaluations from Michael Qunell, Dr. Michael Schultz, and registered nurse Linda Harris, who all recommended a "lateral transfer" or a "department change" due to Ferguson's medical condition, which worsened under Windham's supervision. Again, TXDOT denied Ferguson's request and stated that a change in supervisor was not a reasonable accommodation.

         C. Ferguson's Performance

         Ferguson's performance evaluations from her start date in 1996 to October 2009 indicated that she either "achieved" or "exceeded" her job expectations. Although Ferguson's lead worker had changed to Windham, Haley completed the majority of her evaluations. Ferguson's performance evaluations were completed approximately every ten months. After regionalization, Cravotta completed Ferguson's evaluations.

         In August 2010, Cravotta noted in her evaluation that Ferguson was placed on a year-long probation because she used TXDOT's internet for non-work-related purposes. Ferguson's subsequent evaluations, completed by Cravotta from June 2011 to April 2012, indicated that Ferguson's performance "[n]eed[ed] improvement." These evaluations indicated that Cravotta warned Ferguson that she had failed to follow policy by forwarding all leave time and comp time to the Lead Worker and the accounting manager. Cravota also noted that Ferguson failed "to collaborate and cooperate with her Lead Worker, Supervisor and Manager."

         Due to Ferguson and Windham's relationship at work, human resources presented them with an "Agreement for a Commitment to an Effective Working Relationship" (Agreement) in March 2012. Ferguson refused to sign this Agreement until her attorney had had an opportunity to review the document. In August 2012, Ferguson received a written reprimand for her "insubordinate behavior." On this occasion, Ferguson submitted inaccurate information on the "Segment 04 Annual Review, " a mistake that she admitted occurred because she overlooked a file, rejected help, and rushed through the report. In October 2012, TXDOT again placed Ferguson on a twelve-month probation because of her insubordinate behavior and her failure to abide by the Agreement.

         D. Ferguson's Grievances

         In May 2012, Ferguson filed a grievance against Mark Bradshaw, Cravotta, and Windham and alleged retaliation and nondiscriminatory reasons as the basis for her complaint. In her grievance, she asserted that Bradshaw intervened in the hiring process for an open "Purchaser II" position to make sure that she did not get the position even though she claimed that she was qualified. She also claimed that Cravotta's negative evaluations of her were retaliatory. However, TXDOT's human resources department did not investigate the May 2012 grievance because it was not timely.

         Ferguson then filed a second grievance in August 2012 against Windham, which concerned an incident that had occurred on June 4, 2012. Ferguson recalled that Windham had asked her to come into her office and then Windham had yelled and cursed at Ferguson. Ferguson said that, when she tried to leave the office, Windham yelled at her and blocked her path. TXDOT investigated this allegation and obtained witness testimonies from Brandy Halk and Delinda Skaggs. Halk stated that she overheard Windham talk to Ferguson in a loud, agitated voice and that she witnessed Windham exhibit very unprofessional behavior toward Ferguson. Similarly, Skaggs recalled that on June 4, she overheard loud voices and a door slam. Skaggs also stated that Windham treated Ferguson inappropriately in the workplace. With this information, the investigator dismissed Ferguson's grievance because the evidence did not support a pattern of unprofessional behavior by Windham and the evidence was inconclusive that Cravotta and TXDOT management supported Windham.

         E. ...

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