Court of Appeals of Texas, Eighth District, El Paso
from County Court at Law No. 3 of El Paso County, Texas (TC #
McClure, C.J., Rodriguez, and Palafox, JJ.
CRAWFORD McCLURE, CHIEF JUSTICE.
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
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.
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.
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.
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.
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.
TO THE JURISDICTION UNDER THE LABOR CODE
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. Absent a pleading stating a prima
facie case, the State's immunity from suit has not been
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
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.
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.
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.).
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.
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).
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.
"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. § 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