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Texas Department of Criminal Justice v. Flores

Court of Appeals of Texas, Eighth District, El Paso

June 22, 2018


          Appeal from County Court at Law No. 3 of El Paso County, Texas (TC # 2015-DCV-0261).

          Before McClure, C.J., Rodriguez, and Palafox, JJ.



         This is an accelerated interlocutory appeal from a trial court order denying the Texas Department of Criminal Justice's (TDCJ) plea to the jurisdiction. We affirm in part and reverse in part.


         Bibiana Flores began working as a correctional officer for TDCJ in 2002. By 2008, she rose to the rank of sergeant and worked at the Rogelio Sanchez State Jail. She claims to have injured her back at work in 2011 by stepping awkwardly on a rock. She did not immediately report the incident, and lost no time from work, but by 2012, her back pain worsened. Flores claims to have later reported her back problems to two supervisors, Major Arturo Falcon and Captain Javier Aguilera, while asking for a shift change. She needed the shift change so that she could pursue physical therapy for her back. The supervisors allegedly told her to wait, as everyone's schedule was about to change. TDCJ never altered her schedule.

         On March 13, 2013, while at home on a day off, Flores slipped and fell, further injuring her back and leg. She went to see her regular physician, who referred her to a specialist, Dr. Gregory Misenheimer. He put Flores on a no-work status while she underwent physical therapy. Flores applied for, and the TDCJ granted her, leave under the Family Medical Leave Act (FMLA) because of that injury.

         Also on March 13, 2013, TDCJ initiated an investigation of Flores that ultimately resulted in five disciplinary charges. Three of the charges relate to an inmate that TDCJ claims became too familiar with Flores. One charge contended that the prisoner blew Flores a kiss and she did not initiate a disciplinary charge. Another charge claimed that Flores tried to initiate a relationship with the same inmate by sharing personal information, including her marital status (single) and her phone number. Two other charges related to record-keeping entries on an ammunition log.

         Under TDCJ's policy, an employee in most cases may respond to a charge prior to the imposition of disciplinary action. Because Flores was on FMLA leave, TDCJ was unable to get a response. The charges pended until she returned to work on August 28, 2013. As of that date, Dr. Misenheimer released her without restrictions. When she returned to work, Major Michael Thompson presented the charges to her, and while she disputed several of the charges, she resigned. Flores contends she was constructively discharged, having been told she could either resign or be fired.

         Flores filed a charge of discrimination with the Texas Workforce Commission, and after obtaining a right to sue letter, she filed suit asserting three claims. She alleged that TDCJ: (1) refused to make reasonable accommodations to her work duties; (2) discriminated against her based on a disability; and (3) retaliated against her for engaging in protected activity. TDCJ filed an original and supplemental plea to the jurisdiction challenging each of the claims. Flores nonsuited the reasonable accommodations claim, and the trial court denied the plea as to the disability discrimination and retaliation claims. This interlocutory appeal follows.


         Sovereign immunity protects state agencies from lawsuits unless the Legislature waives the immunity. Tex. Parks & Wildlife Dep't v. Sawyer Trust, 354 S.W.3d 384, 388 (Tex. 2011); Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 224 (Tex. 2004); Phillips v. Texas Dept. of Criminal Justice, 366 S.W.3d 312, 315 (Tex.App.--El Paso 2012, no pet.)(deciding immunity questions in claim against TDCJ). A governmental unit's sovereign immunity deprives a trial court of subject matter jurisdiction. Miranda, 133 S.W.3d at 225-26; Tirado v. City of El Paso, 361 S.W.3d 191, 194 (Tex.App.--El Paso 2012, no pet.). The Legislature has created a limited waiver of immunity for claims properly brought under the Labor Code. Mission Consol. Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629, 636 (Tex. 2012). That waiver, however, extends only "for those suits where the plaintiff actually alleges a violation of the [Labor Code] by pleading facts that state a claim thereunder." Id. at 636.[1] Absent a pleading stating a prima facie case, the State's immunity from suit has not been waived. Id.

         A governmental entity may challenge the existence of that prima facie case through a plea to the jurisdiction. Miranda, 133 S.W.3d at 225-26; Bland Independent School Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000); Univ. of Texas at El Paso v. Ochoa, 410 S.W.3d 327, 330 (Tex.App.--El Paso 2013, pet. denied). The plea might attack the face of the pleading, but it may also include evidence that thereby places into issue the existence of a jurisdictional fact. Miranda, 133 S.W.3d at 226-27; College of the Mainland v. Glover, 436 S.W.3d 384, 391 (Tex.App.-Houston [14th Dist] 2014, pet. denied). Here, TDCJ has presented evidence in support of its plea to the jurisdiction.

         When a plea to the jurisdiction challenges the existence of jurisdictional facts, we consider relevant evidence submitted by the parties. Miranda, 133 S.W.3d at 226. "If there is no question of fact as to the jurisdictional issue, the trial court must rule on the plea to the jurisdiction as a matter of law." City of El Paso v. Heinrich, 284 S.W.3d 366, 378 (Tex. 2009). "If, however, the jurisdictional evidence creates a fact question, then the trial court cannot grant the plea to the jurisdiction, and the issue must be resolved by the fact finder." Id. "This standard mirrors our review of summary judgments" where the reviewing court takes as true all evidence favorable to the non-movant, indulging every reasonable inference and resolving any doubts in the non-movant's favor. Id.

         While akin to a summary judgment, a plea to the jurisdiction is not a substitute for a "no evidence" motion for summary judgment. Instead, to trigger the plaintiffs obligation to submit some evidence creating a fact issue, the State entity must first present evidence conclusively negating one or more elements of the plaintiffs claim. Miranda, 133 S.W.3d at 226; Texas Dept. of Fam. and Protective Services v. Howard, 429 S.W.3d 782, 786 (Tex.App.--Dallas 2014, pet. denied). As the Miranda court explained, "[b]y requiring the [governmental entity] to meet the summary judgment standard of proof in cases like this one, we protect the plaintiffs from having to 'put on their case simply to establish jurisdiction.'" Miranda, 133 S.W.3d at 228, quoting Bland, 34 S.W.3d at 554. But if there is no fact question on the jurisdictional issue, the trial court should rule on the plea to the jurisdiction as a matter of law. Heinrich, 284 S.W.3d at 378.

         We review de novo the issue of whether a trial court has subject matter jurisdiction. Miranda, 133 S.W.3d at 226-27; State Dept. of Highways and Public Transp. v. Gonzalez, 82 S.W.3d 322, 327 (Tex. 2002); Texas Dept. of Aging and Disability Services v. Lagunas, 08-16-00086-CV, 2017 WL 728368, at *3-4 (Tex.App.--El Paso Feb. 24, 2017, no pet.).


         Flores alleges in part that TDCJ discriminated against her because of a disability. The Labor Code prohibits discrimination that occurs "because of or on the basis of a physical or mental condition that does not impair an individual's ability to reasonably perform a job." Tex.Lab.Code Ann. § 21.105 (West 2015). A plaintiff may establish a disability discrimination case in one of two ways. The first requires the plaintiff to prove discrimination through direct evidence of what the defendant did or said. Garcia, 372 S.W.3d at 634. Because direct evidence of discriminatory motive is usually hard to come by, the Court created a second method: the burden-shifting mechanism described in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Under that method, the plaintiff creates a presumption of discrimination if she meets the "minimal" initial burden of establishing a prima facie case of discrimination. Garcia, 372 S.W.3d at 634.

         To establish a prima facie case of disability discrimination, a plaintiff must show that: (1) she has a "disability;" (2) she is "qualified" for the job; and (3) she suffered an adverse employment decision because of that disability. Howard, 429 S.W.3d at 787; Davis v. City of Grapevine, 188 S.W.3d 748, 757 (Tex.App.--Fort Worth 2006, pet. denied), citing Turco v. Hoechst Celanese Corp., 101 F.3d 1090, 1092 (5th Cir. 1996). Once the plaintiff makes that prima facie case, the burden shifts to the employer-defendant to articulate a legitimate non-discriminatory reason for its differential treatment of the employee. McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. At 1824; Donaldson v. Texas Dept. of Aging and Disability Services, 495 S.W.3d 421, 437 (Tex.App.--Houston [1st Dist.] 2016, pet. denied).

         TDCJ limits its challenge only to whether Flores satisfied the first element--showing the existence of a disability. It contends that because Flores returned to work following her FMLA leave with a full work release from her doctor, she did not have a disability at the time of the adverse employment action. Conversely, Flores contends that TDCJ failed to meet its initial burden to conclusively show that she did not have a disability, and even if it did, there is some evidence in the record that creates a fact issue on that question. We ultimately agree with TDCJ that the trial court erred with regard to the disability discrimination claim, but for a somewhat different reason than TDCJ advances.

         Definition of Disability

         A "disability" is (1) a "mental or physical impairment that substantially limits at least one major life activity of that individual," (2) "a record of such an impairment," or (3) "being regarded as having such an impairment." Tex.Lab.Code Ann. § 21.002(6); see also 42 U.S.C.A. ยง 12102 (West 2013). A major life activity is defined to include, among other things, ". . . caring for oneself, performing manual tasks, . . . walking, standing, lifting, bending," and the ...

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