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Texas Department of Aging and Disability Services v. Comer

Court of Appeals of Texas, Fourth District, San Antonio

January 24, 2018

TEXAS DEPARTMENT OF AGING AND DISABILITY SERVICES dba San Antonio State Supported Living Center, Appellant
v.
Adrian COMER, Appellee

         From the 438th Judicial District Court, Bexar County, Texas Trial Court No. 2016CI12399 Honorable Rosie Alvarado, Judge Presiding

          Sitting: Karen Angelini, Justice Marialyn Barnard, Justice Patricia O. Alvarez, Justice

          MEMORANDUM OPINION

          Patricia O. Alvarez, Justice.

         Appellee Adrian Comer sued his employer, Appellant Texas Department of Aging and Disability Services (DADS), for discrimination based on his disability, failure to provide a reasonable accommodation, and retaliation. DADS's plea to the jurisdiction challenged the existence of jurisdictional facts and asserted its immunity from suit. The trial court denied the plea, and DADS appeals. Because DADS conclusively negated at least one essential element of each of Comer's claims, and Comer failed to raise a genuine issue of material fact, we reverse the trial court's order and dismiss Comer's suit for want of jurisdiction.

         Background

         Adrian Comer was employed by the Texas Department of Aging and Disability Services, a state agency that serves aging people and those with cognitive and physical disabilities. Comer worked for DADS for about sixteen years as a Direct Support Professional (DSP) at the San Antonio State Supported Living Center (SASSLC).[1] The Center provides round-the-clock care for its residents through its staff, including DSPs such as Comer. After Comer had some health issues, Comer's doctor certified that Comer was fit for duty as a DSP, but only for one eight-hour shift per day, and the shift had to be at night.

         DADS insisted that an essential function of a DSP is to work a second, consecutive eight-hour shift when needed, and that requirement applied to Comer. Comer contended that he has a disability and excusing him from the mandatory overtime policy[2] was a reasonable accommodation. DADS disagreed and would not reinstate Comer as a DSP. DADS asserts it was unable to find another job that Comer was qualified to fill, with or without a reasonable accommodation, and it terminated Comer's employment.

         Comer sued DADS and alleged it discriminated against him because of his disability because DADS failed to accommodate Comer's request to work only a night shift and not more than eight hours at a time. Comer also sued DADS for retaliation alleging DADS fired him because he filed an EEOC grievance about DADS's failure to provide his requested accommodation.

         In its plea to the jurisdiction, DADS argued that Comer failed to allege a prima facie case for any of his claims, its immunity from suit was not waived for any of Comer's claims, and the trial court had no jurisdiction over Comer's suit. After a hearing, the trial court denied the plea, and DADS appeals arguing that its immunity from suit was not waived.[3]

         Immunity from Suit

         Governmental units have immunity from suit except where that immunity is waived by the legislature. See Tex. Civ. Prac. & Rem. Code Ann. § 101.025 (West 2011); Mission Consol. Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629, 635-36 (Tex. 2012). The legislature, through the Texas Commission on Human Rights Act (TCHRA), [4] waived a governmental unit's immunity "for those suits where the plaintiff actually alleges a violation of the TCHRA by pleading facts that state a claim thereunder." Garcia, 372 S.W.3d at 636.

         It is the plaintiff's burden to allege a prima facie case-to plead facts that, if uncontroverted, establish each essential element of the cause of action. See id. at 632, 637; see also In re Lipsky, 460 S.W.3d 579, 590 (Tex. 2015) ("[A] 'prima facie case' . . . refers to evidence sufficient as a matter of law to establish a given fact if it is not rebutted or contradicted.").

         "[I]f a plea to the jurisdiction challenges the existence of jurisdictional facts, we consider relevant evidence submitted by the parties when necessary to resolve the jurisdictional issues raised, as the trial court is required to do." Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 227 (Tex. 2004); accord Garcia, 372 S.W.3d at 635.

         After the plaintiff meets its burden to allege a prima facie case, if "the state asserts and supports with evidence that the trial court lacks subject matter jurisdiction, we simply require the plaintiff[], when the facts underlying the merits and subject matter jurisdiction are intertwined, to show that there is a disputed material fact regarding the jurisdictional issue." Miranda, 133 S.W.3d at 228; accord Garcia, 372 S.W.3d at 635, 637; Mesquite Indep. Sch. Dist. v. Mendoza, 441 S.W.3d 340, 343 (Tex. App.-Dallas 2013, no pet.) (citing Garcia, 372 S.W.3d at 637) (noting that if a plaintiff pleads facts for each element of a prima facie case but the defendant "present[s] evidence negating those facts, . . . the plaintiff must then present evidence in support of the [plaintiff's pleaded] facts." (emphasis added)).

         If the defendant's "evidence affirmatively negate[s] a jurisdictional fact, " City of Waco v. Lopez, 259 S.W.3d 147, 150 (Tex. 2008), and the plaintiff "fails to raise a fact question on the jurisdictional issue, " Garcia, 372 S.W.3d at 635; Miranda, 133 S.W.3d at 228, the governmental unit's immunity is not waived and the claim may be dismissed for want of jurisdiction, see Garcia, 372 S.W.3d at 637; Lopez, 259 S.W.3d at 150; Miranda, 133 S.W.3d at 228.

         Standard of Review

         In reviewing a trial court's "ruling on a plea to the jurisdiction, [we] must determine whether facts have been alleged that affirmatively demonstrate jurisdiction in the trial court." Lopez, 259 S.W.3d at 150 (citing Miranda, 133 S.W.3d at 225). We liberally construe the pleadings in the plaintiff's favor, but we "must also consider evidence tending to negate the existence of jurisdictional facts when necessary to resolve the jurisdictional issues raised." Id. (citing Miranda, 133 S.W.3d at 227); accord Tex. Dep't of State Health Servs. v. Rockwood, 468 S.W.3d 147, 154 (Tex. App.-San Antonio 2015, no pet.) ("[We] consider whether [the plaintiff] pled the basic facts that make up a prima facie case for [his] TCHRA claims and whether the Department conclusively negated one of those basic facts.").

         The questions of "[w]hether a pleader has alleged facts that affirmatively demonstrate a trial court's subject matter jurisdiction, " Miranda, 133 S.W.3d at 226, whether the State has negated the existence of the plaintiff's jurisdictional facts, Lopez, 259 S.W.3d at 150, and whether the plaintiff has successfully raised a fact question on the jurisdictional issue are questions of law we review de novo, id. (citing Miranda, 133 S.W.3d at 226-28).

         Discrimination Claim

         Comer alleges DADS violated the TCHRA by its acts against him of discrimination and retaliation. See Tex. Labor Code Ann. §§ 21.051 (Discrimination by Employer), 21.055 (Retaliation) (West 2015). As a part of his discrimination claim, Comer alleges DADS failed to provide him with his requested reasonable accommodation. We begin with the discrimination claim.

         A. DADS Arguments

         DADS argues the trial court erred in denying its plea to the jurisdiction against Comer's discrimination claim because Comer failed to meet his burden to show that he has a disability and that he is qualified for the job. DADS insists (1) there is no evidence that Comer is disabled, (2) Comer's own evidence conclusively proves Comer cannot perform all the essential functions of a DSP, and (3) his requested accommodation of waiving the mandatory overtime policy as to Comer is not reasonable as a matter of law.

         B. Comer's Arguments

         Comer contends DADS fired him because of his disability. He insists he can perform all the essential functions of a DSP with the reasonable accommodation of DADS allowing him to work only nights and not more than eight hours per day. Comer cites his affidavit as evidence that the mandatory overtime policy has been waived as to other employees, and thus he has raised a fact question on whether mandatory overtime is an essential function of his job.

         C. Applicable Law

         The anti-discrimination statute at issue here is section 21.051 of the Texas Labor Code; it reads as follows:

         An employer commits an unlawful employment practice if because of race, color, disability, religion, sex, national origin, or age the employer:

(1) fails or refuses to hire an individual, discharges an individual, or discriminates in any other manner against an individual in connection with compensation or the terms, conditions, or privileges of employment; or
(2) limits, segregates, or classifies an employee or applicant for employment in a manner that would deprive or tend to deprive an individual of any employment opportunity or adversely affect in ...

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