Court of Appeals of Texas, Third District, Austin
THE DISTRICT COURT OF TRAVIS COUNTY, 345TH JUDICIAL DISTRICT
NO. D-1-GN-16-005836, HONORABLE JAN SOIFER, JUDGE PRESIDING
Chief Justice Rose, Justices Baker and Smith
Lara, Jr., sued the Texas Department of Transportation for
terminating his employment after he took extended leave to
recover from surgery. Lara alleges the Department failed to
provide the reasonable accommodation required by the Texas
Commission on Human Rights Act (TCHRA), Tex. Lab. Code §
21.051, and retaliated against him for exercising his rights
under that Act, id. § 21.055. The Department
filed a combined motion for summary judgment and plea to the
jurisdiction. The district court denied the motion and
overruled the plea, and the Department filed timely appeal.
We will affirm in part and reverse in part.
worked for the Department for two decades, most recently as a
general engineering technician. In April of 2015, Lara was
suffering from gastrointestinal distress. By April 22nd, he
reported his illness to his superiors at the Department and
indicated he could not attend work and did not know when he
could return. He underwent surgery on May 7th but had already
exhausted his paid sick leave, vacation time, and "comp
time." A week later, Lara requested extended paid leave
from hours donated by co-workers through the Department's
sick-leave pool ("SLP leave"). Lara's
application for leave included his physician's statements
• Lara was not suffering from a catastrophic condition;
• he would not need multiple treatments;
• he was not able to perform the essential functions of
• he could not "perform any work of any kind";
• the estimated date of his return was June 23rd, 2015.
Lara had already exhausted all of his own paid leave, and
because government employees may only withdraw SLP leave upon
a doctor's certification of a "catastrophic
condition," see Tex. Gov't Code
§§ 661.004-.006, Lara was not eligible for any paid
leave. The Department granted him unpaid leave under the
Family Medical Leave Act, 29 U.S.C. § 2601, through June
complications from surgery, Lara filed an updated leave
request including physician's statements that Lara would
need multiple treatments, did not expect to return until July
21st, and could not perform work of any kind. The
physician's revised statements led the Department to
designate Lara as an employee with a catastrophic condition
and to offer him SLP leave sufficient to compensate for the
time off work.
subsequently filed another request for SLP leave with a new
estimated return date of October 21st, 2015. The physician
again reported that Lara could not work in any capacity. The
physician also reported that Lara would require one or more
follow-up procedures upon recovery from the original surgery.
The Department granted him additional SLP leave, bringing the
total awarded to its maximum of 720 hours. See Tex.
Gov't Code § 661.005 (delineating factors used to
calculate maximum withdrawal). It then explained that this
leave would expire on September 16th, 2015, and that no
further leave would be available. Lara began contacting
various staff members in hopes of obtaining additional leave.
September 1st, Lara's supervisor met with a
representative from the Department's human-relations
office to determine how to respond to Lara's absence. On
September 9th, the Department sent Lara written notice of
termination if he could not return to work within seven days.
He did not do so and was terminated as described in the
filed suit alleging discrimination and retaliation under the
TCHRA. The Department responded with a defense of undue
hardship, see Tex. Lab. Code § 21.128(b),
arguing that it needed someone to perform Lara's duties
and was no longer able to hold the position open pending his
return. It then filed a combined motion for summary judgment
and plea to the jurisdiction. The district court denied the
motion and overruled the plea, and the Department timely
perfected this appeal.
district court's jurisdiction is a question of law we
review de novo. Guevara v. H.E. Butt Grocery Co., 82
S.W.3d 550, 551 (Tex. App.-San Antonio 2002, pet. denied).
"Immunity from suit bars a suit against the State unless
the Legislature expressly consents to the suit."
Texas Nat. Res. Conservation Comm'n v. IT-Davy,
74 S.W.3d 849, 853 (Tex. 2002); see alsoMission
Consol. Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629, 636
(Tex. 2012); Texas Dep't of Parks & Wildlife v.
Miranda, 133 S.W.3d 217, 224 (Tex. 2004). A governmental
unit may raise the issue of immunity and challenge
jurisdiction "through a plea to the jurisdiction or
other procedural vehicle, such as a motion for summary