Opinion
03-22-00665-CV
10-31-2024
Texas Health and Human Services Commission, Appellant v. Judith Mitchell, Appellee
FROM THE 126TH DISTRICT COURT OF T R A V I S COUNTY NO. D-1-GN-18-005788, THE HONORABLE MAYA GUERRA GAMBLE, JUDGE PRESIDING
Before Byrne, Chief Justice Triana and Theofanis, Justices.
MEMORANDUM OPINION
Gisela D. Triana, Justice
Appellant Texas Health and Human Services Commission appeals from the trial court's orders denying its combined motion for summary judgment and plea to the jurisdiction in the underlying employment-discrimination suit. Appellee Judith Mitchell sued the Commission, alleging claims under the Texas Commission on Human Rights Act (TCHRA) for race and disability discrimination, perceived disability discrimination, retaliation, and failure to accommodate. See generally Tex. Lab. Code §§ 21.001-.556. In seven issues, the Commission contends that the trial court erred by denying its combined motion and plea, asserting among other things that Mitchell failed to demonstrate a prima facie case for any of her claims, and thus, the Commission's sovereign immunity has not been waived. For the reasons explained below, we conclude that the trial court erred, and we reverse the trial court's orders and dismiss Mitchell's case for lack of jurisdiction.
Although courts often refer to Chapter 21 of the Labor Code as the Texas Commission on Human Rights Act, "the Commission on Human Rights has been replaced with the Texas Workforce Commission civil rights division." Waffle House, Inc. v. Williams, 313 S.W.3d 796, 798 n.1 (Tex. 2010) (citing Tex. Lab. Code § 21.0015). The terms "TCHRA," "Chapter 21," and "the Act" are used interchangeably in opinions applying the Act. See id.; Matej v. Texas Parks & Wildlife Dep't, No. 03-23-00420-CV, 2024 WL 3995390, at *1 n.1 (Tex. App.-Austin Aug. 30, 2024, no pet. h.) (mem. op.).
The facts are derived from the evidence submitted by the parties while litigating the combined motion for summary judgment and plea to the jurisdiction.
Mitchell is a Black woman who worked for the Commission and other related state agencies for nearly twenty-three years. At the time of her employment termination, she was a Director III in the Procurement and Contracting Services Division of the Commission (PCS). She was the Director of the Contract Management/Administration Section. Mitchell alleges that "[h]er employment issues began on or about April 2015 with her Supervisors (Ron Pigott, and continued with Michael Parks on July 16, 2016, thereafter) who would subject her to discriminatory treatment."
Pigott, a White male, was a Deputy Executive Commissioner for PCS. He became Mitchell's direct supervisor on September 1, 2015, after Mitchell's then-direct supervisor who reported to Pigott left the Commission. Pigott testified in his deposition that he "came in at a time of turmoil for the agency. That department particularly was in a lot of scrutiny and was facing a lot of issues. We were trying to restructure how the work was performed while we were performing the work." When asked to describe what had caused the turmoil, he testified as follows:
[I]t made news. There were issues with impropriety in the contracting that was being done at HHSC. . . . The governor wanted changes made at HHSC and put somebody in there to bring on a team that I was part of that was supposed to get in
and analyze how contracting was being done at HHSC, and start making corrections.
In his June 23, 2017 response to an Equal Employment Opportunity Commission (EEOC) charge filed by Mitchell, Pigott explained that when he became the Deputy Executive Commissioner, there was one Associate Commissioner, Cecilia Whitley, to whom the Director IVs and a Director III reported. After Whitley left the agency on August 31, 2015, all those Directors reported to Pigott while that Associate Commissioner position remained vacant. In June 2016, Michael Parks (a Black male) was selected for that Associate Commissioner position, and once that position was updated in the Commission's Centralized Accounting and Payroll/Personnel System (CAPPS), the Director positions, including Mitchell, automatically reverted to reporting to the Associate Commissioner. At that time Pigott was planning to divide PCS into three major divisions (Procurement Operations, Contract Administration, and Contract Oversight), each led by an Associate Commissioner, with Parks leading Procurement Operations, but at that point the other two positions had not been posted or filled. Pigott stated that during this period,
When Mitchell questioned in an August 8, 2016 email why she was reporting to Parks, Pigott confirmed that she would be reporting to Parks until Pigott had an Associate Commissioner for Contract Administration in place.
the Health and Human Services (HHS) system was going through transformation, where the Department of Assistive and Rehabilitative Services (DARS) was being abolished, with it being split between the Health and Human Services Commission (HHSC) and the Texas Workforce Commission. Further, multiple programs were moving from the Department of State Health Services (DSHS) and the Department of Aging and Disability Services (DADS) to HHSC. With these infrastructure changes taking place, I decided to leave all Directors reporting to Mr. Parks until the two other Associate Commissioners could be hired. The Directors all needed to take actions to prepare for the transformation and Mr. Parks [w]as a key leader for the transformation process.Mitchell approves hiring a colleague's daughter, and Pigott decides not to interview Mitchell
On July 15, 2016, Mitchell applied for both newly created positions for Director IV Associate Commissioners that had been posted in the PCS Division. After Mitchell applied, but before interviews began, Mitchell approved the hiring of the daughter of her colleague Robert Hall for a Contract Specialist position in Mitchell's unit.
On August 10, 2016, Pigott learned that a job offer had been extended to Hall's daughter. Pigott contacted Chris Adams in the Commission's human-resources department by email on August 11, 2016, and explained the situation to him. Pigott stated that he had spoken with Mitchell and that she said she thought it was fine because the daughter would report to her, not to Hall. Pigott further said that he told her he was not comfortable with hiring family members within PCS, even if the direct supervisor is different, and that she should have checked with him "because of the scrutiny HHS and PCS are under on ethical issues."
Pigott explained to Adams that a further complication was that both Mitchell and Hall had applied for the Associate Commissioner position that would lead Mitchell's division once hired. Pigott had also spoken with Hall to find out if he knew that his daughter had been offered a job in Mitchell's division. Hall knew but was not planning on withdrawing his application for the Associate Commissioner position. Pigott told Adams that his thought was that he should rescind the offer to Hall's daughter and screen both Mitchell and Hall out of the pool for the Associate Commissioner position because "both have shown a complete lack of awareness of policy and good judgment" and Pigott could not have that in the Associate Commissioner position. Pigott also asked whether he should take disciplinary action in the matter because he found their lack of judgment "appalling." Adams agreed that the issue was "failure to provide proper notification to [Pigott] BEFORE the process began," bringing into question "their poor judgement and lack of regard for ensuring clear communication with their boss." Hall's daughter subsequently rescinded her acceptance of the job offer. Pigott ultimately took no disciplinary action against Mitchell or Hall other than removing them from the interview pool for the Associate Commissioner positions.
On September 7, 2016, Mitchell emailed Pigott to ask why she had not been selected for an interview for either Associate Commissioner position. She had seen in CAPPS that she had been deselected. (Pigott later stated that he did not realize that the deselect status was visible to anyone but him and Human Resources.) Pigott explained that she was not selected for an interview because she had offered Hall's daughter a job in PCS and had not let Pigott know; instead, he learned about it secondhand. He further explained that not only did PCS need to be careful to follow every law, rule, and policy, it, and in particular its Associate Commissioners, needed to set the example for other divisions. He expressed disappointment that Mitchell "didn't see the policy, ethical, and appearance issues with offering [Hall's] daughter a position in PCS, and thought that [Mitchell] would have at least run it past [him] before the offer was made." He closed by explaining she was not selected because of his "need for an associate commissioner that heads off potential ethical and policy issues."
Mitchell responded by email, reiterating what she stated she had told Pigott when he first contacted her about the issue with Hall's daughter, which was that "it never occurred to [her] that there was a potential conflict of interest" because the daughter would not be working under Hall's management chain and that she did not know Hall had applied for the Associate Commissioner positions. Mitchell expressed discomfort with Pigott's explanation for her non-selection as an interview candidate because of what she described as a previously expressed concern that she "was not being invited to participate in projects, committees, meetings, and discussions that relate to [her] area of expertise and purview of responsibility" and that her perception was that Pigott had never fully supported her. Mitchell also stated in a subsequent email that she had the sense that Pigott was never really considering her and that she was being removed "from the applicant pool to allow for predetermined outcomes." At that point, Pigott copied the Commission's Chief Operating Officer, Heather Griffith Peterson (a Black female), on his email response stating that he had no hidden motive for deselecting Mitchell because Griffith Peterson had worked with him on the Associate Commissioner vacancies and could vouch that no one had been pre-selected for those jobs. He also reiterated, "I absolutely consider your offer of a job to [Hall's] daughter a significant problem. The fact that you don't reaffirms this decision."
Pigott testified in his deposition about the selection and interview process for the Associate Commissioner positions. He and Griffith Peterson reviewed the applications and then selected the people that they wanted to interview based on how closely their qualifications matched the requirements for the job descriptions. They had scoring criteria that they applied to the applications, and then they selected the most qualified applicants to interview based on those scores. Human Resources records show that the pool of eleven applicants chosen for interviews included three White females, three White males, three Black females, one Hispanic female, and one outside candidate for whom race, age, and sex information was not available. Pigott explained that the interview questions had to be approved by Human Resources before the interviews, and then he and Griffith Peterson scored the candidates based on their interviews. He and Griffith Peterson jointly selected the people chosen for the positions, but because Griffith Peterson was the COO, she had the ultimate approval power. The people chosen to fill the Associate Commissioner positions were a White female and a White male.
Mitchell complains of racial discrimination
Mitchell alleges in her petition that "on or about September 11, 2016," she complained to Griffith Peterson "regarding her Supervisor's (Pigott['s]) disparate treatment." At her deposition, Mitchell testified that she met with Griffith Peterson and talked to her "about the hostile work environment and just told her that, you know, I was part of what I felt was a pattern of discrimination, particularly towards Black women." She stated,
I complained about not being selected for an interview. I talked about the hostility and -- basically the racism and the hostility and indicated that I felt [Pigott] was discriminating against me and also that he had this inappropriate hostility towards women. And I talked about some of the things that he had said. And I told her, 'If I'd said something like that, I wouldn't be here. And I remember giving her examples.
In her August 2022 declaration, Mitchell attested to this treatment as follows:
Mr. Pigott's treatment me [sic] differently from the time he became Deputy. He left me out of meetings that other Directors were included in, was verbally abusive to me in front of others, made fun of me in meetings and became more belligerent and hostile after I complained to [Griffith Peterson]. He would publicly blame me in emails or meetings for problems he caused when he authorized procedure changes without informing me.
Mr. Pigott made hostile comments about wanting to physically harm people, which I reported to [Griffith Peterson] and Executive Commissioner [Smith]. Mr. Pigott became more hostile, angry, and threatening about me accusing him[.]
Mitchell went out on sick leave shortly after her September 11, 2016 meeting with Griffith Peterson and was already out on sick leave when she met with Commissioner Smith on October 3, 2016.
At her deposition, Mitchell testified that Parks "had openly expressed that he didn't like working with Black people and - which is a shocking statement because he's Black, and he was quite close to Ron Pigott in terms of comradery." She testified that when Pigott promoted Parks to Associate Commissioner (a position that in her opinion Parks was not qualified for), and she began reporting to Parks, "I saw it as a final act of hostility." Mitchell could not remember the details of when she heard Parks say he did not like working with Black people and whether anyone else was with her when he said it, but she testified that Hall had indicated that Parks had made similar remarks to him. She testified that Parks would also "make off-the cuff remarks, like, 'Yeah, you know, Black people are something.'"
Mitchell does not plead or provide evidence that she reported any hostility or race discrimination to Human Resources, Griffith Peterson, or Smith before Pigott decided not to interview her for the two Associate Commissioner positions.
Mitchell begins taking sick leave and meets with Commissioner Smith
According to Mitchell's leave report, she took sick leave from September 13-16, 2016. Then, on September 30, she went out on sick leave and never returned to work. In her deposition, she testified that she went out on leave because she was losing weight, not sleeping, and "becoming physically and emotionally ill," and after she had been to her doctor a couple of times to try to manage it, the doctor finally told her not to go back to work at that point.
Mitchell alleges that "[n]ear the end of September 2016," she "made the Agency aware of her medical conditions (Anxiety, Depression and Post Traumatic Stress Syndrome)." She further alleges that she "also complained about the differential treatment to the Executive Commissioner (Charles Smith) on October 3, 2016."
On October 10, 2016, Mitchell emailed Parks, stating, "I am under medical care and will be out of the office indefinitely. The progressively hostile work environment and negative treatment has impacted my physical and mental health. The appropriate medical documentation will be provided to support my sick leave." Parks responded, acknowledging his receipt of her email and copying Pigott, and stated "[b]ased on the content I have escalated to my direct supervisor." Pigott also responded, enclosing a letter that he also stated was being mailed in hard copy to her home, and stating he hoped she felt better soon. Pigott's October 10 letter regarding Mitchell's leave status and Family Medical Leave Act (FMLA) information advised Mitchell of her annual-leave and sick-leave balances as of that date and noted that her absence appeared eligible for FMLA designation. Pigott also enclosed copies of the documents required to start the FMLA-designation process with the letter. He addressed Mitchell's statement about the work environment and her treatment as follows: "While I regret your being ill, I must respectfully disagree with both your characterization of your employment as being a 'progressively hostile work environment' as well as your conclusion that you have received negative treatment. I am available to discuss your concerns or answer any questions you may have." He directed her to the appropriate person in Human Resources to contact if she preferred to have that person assist her "with relevant policy interpretation." He also gave her the contact information for the Commission's Civil Rights office.
On March 1, 2017, Parks sent Mitchell a letter by email and certified mail, notifying her that she had exhausted all FMLA and paid leave as of January 31, 2017. Specifically, Mitchell exhausted 316.0 hours of sick leave on November 8, 2016, and 357.75 hours of annual leave on January 31, 2017. Her FMLA job protection, which began on September 30, 2016, expired on December 22, 2016. She was not eligible for further job protection under the FMLA because she had not worked a total of 1,250 hours in the past twelve calendar months. Parks informed Mitchell that the Time, Labor and Leave department had reviewed her request for Sick Leave Pool but had not yet made a determination about her eligibility and required a new, signed and completed form to process that request. Parks also informed her about the paperwork that her doctor would need to complete for Mitchell to return to work if she chose to do so. Parks further advised Mitchell of her right to request a reasonable accommodation and enclosed the form needed to do so, as well as providing contact information for the Commission's Civil Rights Office for additional information and assistance. Parks requested that she let him know by March 3, 2017, whether she intended to file a request for reasonable accommodation with the Civil Rights Office. He also notified her that if she did not return to work (with that completed paperwork), complete her Sick Leave Pool request, or request a reasonable accommodation, her employment was subject to termination.
Although the October 10, 2016 letter had informed Mitchell that these were her leave balances, the date that her leave balances would be exhausted was initially miscalculated as "approximately February 23, 2017," but in fact Mitchell exhausted her leave at the end of January 2017.
According to the Commission's HR Manual at the time of Mitchell's leave, "[t]he sick leave pool is a fund of donated sick leave hours used to support employees who suffer, or to care for immediate family members who suffer, a catastrophic illness or injury," and it "allows eligible employees to continue receiving their pay when all accrued leave balances are exhausted, and they would otherwise be placed on leave without pay." The HR Manual details the process for applying for leave from the sick-leave pool and explains that employees may use the total amount of leave awarded for "any combination of catastrophic illnesses or injuries" or for "amendments to earlier requests." It further explains that "[t]he HHS time, labor, and leave office sets the amount of the award" and that "[w]hen determining the exact number of hours to be awarded, the HHS time, labor, and leave office will take into consideration the total amount of time available in the sick leave pool."
On March 3, 2017, Mitchell sent a letter to Executive Commissioner Charles Smith concerning her leave balances because she believed she had 94.75 hours of leave remaining at the end of January. In that letter, Mitchell stated that she had brought her concerns about "the hostile work environment and ongoing disparate treatment that [she] was subjected to" to Smith and Griffith Peterson separately during the prior fall, hoping for some resolution. She stated that when she met with Smith, she was out on sick leave because her "health had been impacted due to her work situation." Mitchell further informed Smith that she remained on sick leave "because of the physical and mental toll this situation has had on me" and that her primary-care physician continued to monitor her condition; at that doctor's request, Mitchell had been seeing a therapist weekly since the prior fall. Mitchell noted that both providers had submitted documentation to the Commission "in support of [her] medical condition"; she also stated that she was "not currently able to return to work based on the certification of a serious health condition provided by both medical providers." She expressed her belief that the way her sick leave was being handled was "retaliatory."
Parks informed Mitchell by email on March 14, 2017, that Time, Labor and Leave had retroactively awarded her the maximum lifetime benefit of Extended Sick Leave hours and additional Sick Leave Pool hours that together were estimated to cover her leave through May 15, 2017, and Mitchell responded by email, thanking Parks for the information. Time, Labor and Leave noted in its email to Parks informing him of Mitchell's leave awards that "Mitchell's period of incapacitation ends on May 15, 2017," based on Mitchell's doctor's comment on the submitted form that Mitchell would be re-evaluated in three months (mid-May).
The Commission's HR Manual explains that Extended Sick Leave "is additional paid leave for a personal illness or injury, above and beyond the sick leave actually earned by the employee, authorized at the discretion of the Agency Head" and that "[w]hen an employee's condition qualifies, the employee should request and exhaust extended sick leave before requesting leave from the sick leave pool."
On March 28, 2017, COO Griffith Peterson sent a letter to Mitchell in response to Mitchell's March 3, 2017 letter to Executive Commissioner Smith concerning Mitchell's leave balance. Griffith Peterson recapped the information that Parks had provided Mitchell about those leave awards and noted Mitchell's response. Griffith Peterson reiterated that Mitchell had received the lifetime maximum of Extended Sick Leave hours but was eligible for additional Sick Leave Pool hours if she met the criteria and reapplied. Griffith Peterson also noted that Mitchell had received a call from a Human Resources employee and a Time, Labor and Leave employee on March 7, 2017, "who explained that [FMLA] is a federal law; how it is coded is not at an employee's discretion; and FMLA leave runs concurrent with other leaves" and that Mitchell had "indicated by [her] response that [she] understood the process." Griffith Peterson invited Mitchell to contact the Human Resources employee should she have any additional questions.
Mitchell later submitted new paperwork requesting additional hours of sick leave, and on May 16, 2017, she was awarded the remaining amount of lifetime Sick Leave Pool hours (386.75) available to her, which covered her absence from work through July 26, 2017. On May 25, 2017, Mitchell filed the first of three EEOC charges (Charge No. 36A-2017-00125), alleging that she had not been interviewed for the Associate Commissioner positions because of age, race, and sex discrimination and in retaliation for complaining about discrimination in the workplace.
On June 7, 2017, the Commission's Payroll Time, Labor and Leave Department notified Mitchell by email that her sick-leave award would exhaust at 10:45 a.m. on July 26, 2017. When Mitchell did not return to work, a "Letter of Dismissal" was sent to her by email, certified mail, and first-class mail on July 26, 2017, notifying her of the termination of her employment effective July 27, 2017. The letter explained to her that her dismissal was based on the Commission's policy as stated in the HR Manual:
If an employee is unable to return to work due to the employee's own serious health condition after exhausting the FMLA leave entitlement,
• the employee may exhaust any remaining accrued paid leave;
• the Agency Head may grant leave without pay for up to a total of 12 months, including FMLA leave; or
• the employee may be dismissed.
The letter explained that Mitchell's employment was being terminated because she had been absent from work since September 30, 2016; had exhausted her FMLA job protection; had exhausted all available accrued leave and any awarded sick pool and extended sick leave; and had not returned to work.
Mitchell files a complaint with the Commission's Civil Rights Office and files EEOC charges
On August 18, 2017, Mitchell filed an employment-discrimination complaint with the Commission's Civil Rights Office, alleging discrimination based on race, sex, and disability, and alleging retaliation for filing her first discrimination complaint with the EEOC in May 2017. On October 27, 2017, the Commission's Civil Rights Office sent Mitchell a letter advising her of the closure of that complaint. It noted that the Commission's records indicated that she did not request a reasonable accommodation after being advised of her right to do so on March 1, 2017.
In all, Mitchell filed three separate charges with the EEOC. As noted above, in her first charge filed on May 25, 2017, Mitchell alleged that she had not been interviewed for the Associate Commissioner positions because of age, race, and sex discrimination and in retaliation for complaining about discrimination in the workplace. On November 15, 2017, the EEOC dismissed Mitchell's first charge because it was "unable to conclude that the information obtained establishes violations of the statutes," and it notified her of her right to sue. After her July 2017 termination, Mitchell filed two additional charges, one on August 7, 2017 (Charge No. 36A-2017-0166), and one on August 18, 2017 (Charge No. 36A-2017-00174). In the August 7 charge, Mitchell asserted that she was terminated from her position on the basis of disability and in retaliation for filing the May 25, 2017 charge of discrimination. On March 7, 2018, the EEOC notified Mitchell that it was dismissing the charge because it was "unable to conclude that the information obtained establishes violations of the statutes," and it notified her of her right to sue. On March 12, 2018, the EEOC deemed Mitchell's August 18, 2017 charge to be duplicative of her previous charges of discrimination and notified her that it would not proceed further with processing it.
Mitchell also alleged that she "was being paid less than other male Director III's in the division and in general at HHS and less than or equal to White, female Director II's that [she] was charged with providing guidance and leadership to." However, she has not alleged an Equal Pay Act claim in this lawsuit, and documentation provided in the Commission's response to this charge showed that she was the second-highest-paid Director III of the four Director IIIs under Pigott's supervision. The highest-paid Director III of the four was Robert Hall, a Black male, and the two lower-paid Director IIIs were White males.
Mitchell files suit
Mitchell filed suit on September 21, 2018, asserting claims against the Commission for race discrimination, disability discrimination, perceived disability discrimination, retaliation, and failure to accommodate under Chapter 21. Mitchell's claims can be grouped into two categories: (1) failure-to-promote claims and (2) disability claims. Her failure-to-promote claims allege that the Commission discriminated and retaliated against her by failing to promote her, based on her race and protected complaints. See Tex. Lab. Code §§ 21.051 (discrimination), .055 (retaliation). Her disability claims allege that the Commission discriminated and retaliated against her by terminating her based on her disability or perceived disability and protected complaints, see id. §§ 21.051, .055, and by failing to accommodate her after she reported her disability and doctor recommendations, see id. § 21.128.
After some discovery, including the depositions of Mitchell and Pigott, the Commission filed a combined plea to the jurisdiction and motion for summary judgment on May 2, 2022. In its plea and motion, the Commission sought summary judgment on both traditional and no-evidence grounds. It also asserted that because Mitchell cannot show all the essential elements of her Chapter 21 claim, which are jurisdictional for purposes of waiving the Commission's sovereign immunity, and cannot raise a fact issue as to pretext, her suit is jurisdictionally barred. The Commission further asserted that her failure-to-promote claims are time-barred because Mitchell failed to timely exhaust her administrative remedies.
Mitchell filed responses to the combined motion and plea and attached a new August 10, 2022 declaration, along with other documents to support her claims, to both responses. The Commission subsequently filed a motion to strike and objection to the declaration, asserting that the declaration contradicted Mitchell's prior sworn testimony and should be struck for violating the sham-affidavit rule and because it contained incompetent summary-judgment evidence in the form of statements for which Mitchell failed to provide a basis for her knowledge. After the trial court conducted a hearing on the combined motion and plea on August 18, 2022, the parties filed additional briefing related to the motion to strike and the combined motion and plea. On October 7, 2022, the trial court denied the motion for summary judgment and the plea to the jurisdiction in separate orders. This appeal followed.
ANALYSIS
In eight issues, the Commission appeals from the trial court's denial of its combined motion and plea. Although the Commission's brief presents seven issues, one of those issues concerns whether Mitchell rebutted the Commission's legitimate and non-discriminatory and non-retaliatory reasons for its employment actions for both the failure-to-promote claims and her termination, but the Commission addresses each employment action separately (in both the failure-to-promote and disability sections of the briefing), so we consider those arguments to raise two separate issues and have reordered them accordingly.
The Commission raises three issues related to Mitchell's failure-to-promote claims, challenging whether Mitchell failed: (1) to timely file a discrimination charge; (2) to establish a prima facie case of race discrimination and retaliation related to the failure to promote her; and (3) to rebut the non-discriminatory and non-retaliatory reasons for the decision not to consider her for the promotion. The Commission raises three issues related to Mitchell's disability claims, which we have renumbered as issues (4)-(6), challenging whether Mitchell failed: (4) to establish she had a disability and that the Commission refused her a reasonable accommodation for that disability; (5) to establish a prima facie case of disability discrimination and retaliation; and (6) to rebut the Commission's legitimate, non-discriminatory and non-retaliatory reasons for her termination. In its last two renumbered issues, the Commission contends that the trial court abused its discretion by (7) considering Mitchell's affidavit, which it asserts lacks indicia of personal knowledge and contradicts without explanation Mitchell's prior sworn testimony, and (8) not striking Mitchell's affidavit under the sham-affidavit rule.
Broadly speaking, the Commission contends that the trial court erred by denying its combined motion and plea because Mitchell did not satisfy the jurisdictional prerequisite for her failure-to-promote claims and she did not establish either a prima facie case of employment discrimination or retaliation or that the Commission's stated reasons for its actions were pretextual for any of her claims; thus, the Commission contends, its sovereign immunity has not been waived.
Standard of Review
Unless the state consents to suit, sovereign immunity deprives a trial court of subject-matter jurisdiction over lawsuits in which the state or certain governmental units have been sued. Mission Consol. Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629, 636 (Tex. 2012). "Immunity from suit may be asserted through a plea to the jurisdiction or other procedural vehicle, such as a motion for summary judgment." Alamo Heights Indep. Sch. Dist. v. Clark, 544 S.W.3d 755, 770 (Tex. 2018). Whether a court has subject-matter jurisdiction is a question of law. Texas Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004). Therefore, we review de novo the trial court's ruling on the Commission's combined motion and plea raising the issue of the Commission's sovereign immunity. See Texas Pol. Subdivs. Joint Self-Ins. Fund v. Texas Dep't of Ins.-Div. of Workers' Comp., 681 S.W.3d 491, 494-95 (Tex. App.-Austin 2023, pet. denied) (reviewing de novo trial court's ruling on combined plea to jurisdiction and summary-judgment motion that raised issue of TPS Fund's governmental immunity).
"The TCHRA waives immunity, but only when the plaintiff states a claim for conduct that actually violates the statute." Alamo Heights, 544 S.W.3d at 770. To prevail on a claim of immunity, a governmental defendant may challenge whether the plaintiff has alleged facts that affirmatively demonstrate subject-matter jurisdiction, the existence of jurisdictional facts, or both. Id. In TCHRA cases, because a statutory violation is necessary to establish a waiver of immunity, the jurisdictional and merits inquiries are intertwined. Id. at 783.
When, as here, a governmental defendant challenges the existence of jurisdictional facts, the court must move beyond the pleadings and consider evidence to resolve the jurisdictional issues. See id. at 771. The analysis in these cases mirrors that of a traditional summary judgment: "[I]f the plaintiffs' factual allegations are challenged with supporting evidence necessary to consideration of the plea to the jurisdiction, to avoid dismissal plaintiffs must raise at least a genuine issue of material fact to overcome the challenge to the trial court's subject matter jurisdiction." Id. (quoting Miranda, 133 S.W.3d at 221). "In determining whether a material fact issue exists, we must take as true all evidence favorable to the plaintiff, indulging every reasonable inference and resolving any doubts in the plaintiff's favor." Id. However, in doing so, "we cannot disregard evidence necessary to show context, and we cannot disregard evidence and inferences unfavorable to the plaintiff if reasonable jurors could not." Id.
TCHRA Legal Framework
Under the TCHRA, "an employer commits an unlawful employment practice if because of race, color, disability, religion, sex, national origin, or age the employer . . . discharges an individual or discriminates in any other manner against an individual in connection with compensation or the terms, conditions, or privileges of employment." Tex. Lab. Code § 21.051. Section 21.051 and Title VII, its federal equivalent, are effectively identical, except that Title VII does not protect against age and disability discrimination (which are addressed in separate statutes). Mission Consol., 372 S.W.3d at 633 (citing 42 U.S.C.A. § 2000e-2(a) (prohibiting employment discrimination against individual because of that individual's race, color, religion, sex, or national origin)). Because one express purpose of the TCHRA is to "provide for the execution of the policies of Title VII of the Civil Rights Act of 1964," Tex. Lab. Code § 21.001(1), and another is to "provide for the execution of the policies embodied in Title I of the Americans with Disabilities Act and its subsequent amendments (42 U.S.C. Section 12101 et seq.)," id. § 21.001(3), the Texas Supreme Court has "consistently held that those analogous federal statutes and the cases interpreting them guide our reading of the TCHRA." Mission Consol., 372 S.W.3d at 633-34; see also Alamo Heights, 544 S.W.3d at 781-82 (noting that Texas jurisprudence parallels federal cases construing and applying equivalent federal statutes in discrimination and retaliation cases under TCHRA).
A plaintiff may establish a violation of the TCHRA by proving discriminatory intent by two alternative methods: with direct evidence of what the defendant did and said or with circumstantial evidence under the three-part McDonnell Douglas burden-shifting framework. Mission Consol., 372 S.W.3d at 634; see also McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05 (1973) (addressing allocation of burdens and order of presentation of proof in Title VII case alleging discriminatory treatment). Under the McDonnell Douglas framework, a plaintiff employee bears the initial burden of establishing a prima facie case of discrimination, and if the plaintiff does so, "a rebuttable presumption of discrimination arises, which can alone sustain a discrimination claim." Alamo Heights, 544 S.W.3d at 782 (citing Te x as Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 252-54 (1981), and McDonnell Douglas, 411 U.S. at 802-05). But the defendant "employer can defeat this presumption merely by producing evidence of a legitimate, nondiscriminatory reason for the disputed employment action." Id. The presumption disappears if it is rebutted, and the burden shifts back to the employee to establish that the stated reason is false and a pretext for discrimination. Id. The employee retains the burden of persuasion in both direct-evidence and circumstantial-evidence cases. Id. The McDonnell Douglas burden-shifting framework applies to both discrimination and retaliation claims; only the precise evidentiary elements of the prima facie case differ because of the nature of the claims. Id.
To establish a prima facie case of race discrimination, the employee must show that (1) she is a member of the protected class, (2) she applied and was qualified for the position at issue, (3) she suffered an adverse employment action, and (4) the employer gave preferential treatment to a similarly situated employee outside the protected class. Exxon Mobil Corp. v. Rincones, 520 S.W.3d 572, 583 (Tex. 2017) (citing McDonnell Douglas, 411 U.S. at 802). To establish a prima facie case of disability discrimination, the employee must show that (1) she has a disability or was regarded as disabled, (2) she was qualified for the job, and (3) she was subjected to an adverse employment decision on account of her disability. See Harper v. PJC Air Conditioning & Plumbing, LLC, No. 03-19-00548-CV, 2021 WL 2125009, at *3 (Tex. App.- Austin May 26, 2021, pet. denied) (mem. op.) (citing, e.g., Cannon v. Jacobs Field Servs. N. Am., Inc., 813 F.3d 586, 590 (5th Cir. 2016); Donaldson v. Texas Dep't of Aging & Disability Servs., 495 S.W.3d 421, 436 (Tex. App.-Houston [1st Dist.] 2016, pet. denied)). To establish a prima facie case of retaliation, an employee must show that (1) she engaged in an activity protected by the TCHRA, (2) she experienced a material adverse employment action, and (3) a causal link exists between the protected activity and the adverse action. Alamo Heights, 544 S.W.3d at 782.
Mitchell's Failure-to-Promote Claims
In her petition, Mitchell alleges that the Commission discriminated against her "in the form of differential treatment with regard to compensation and promotion opportunities," based on her race and protected activity. See Tex. Lab. Code § 21.051. More specifically, she alleges that she was denied the opportunity to interview for the two Associate Commissioner positions. She further alleges that the applicants selected to interview were less qualified and had less experience than she did and that the applicants ultimately selected to fill the position were White. In addition, she alleges that although Pigott's reason for not offering her the opportunity to interview for the positions was her approval of a job offer to Hall's daughter, she had committed no wrongdoing by approving the job offer.
Although Mitchell did not expressly allege in her petition a retaliation claim related to the Commission's decision not to interview her for the Associate Commissioner positions, in her response to the combined motion and plea and in her appellate brief, she alludes to having engaged in protected activity, an element of a retaliation claim, "at every instance of her speaking out against the systemic discrimination that took place throughout the HHSC, such as when she reported the racial comments that were made" to Griffith Peterson and when she reported Parks's comments that "he did not like working with Black people." The Court notes that Mitchell alleges that she spoke to Griffith Peterson on September 11, 2016, and that she met with the Executive Commissioner on October 3, 2016-after the decision had been made not to interview her. However, to the extent that Mitchell argues that the Commission retaliated against her for her alleged reports of two racial comments (the comment by Parks and a comment made by prior Associate Commissioner Cecilia Whitley to Hall, which Hall had reported to Pigott's predecessor and which Mitchell alleges she corroborated when asked) by not interviewing her, we will consider this retaliation claim in connection with her failure-to-promote claims.
The Commission raises three issues related to Mitchell's failure-to-promote claims. First, it asserts that Mitchell failed to satisfy the jurisdictional prerequisites to filing suit for those claims under Chapter 21 because she failed to timely file a charge of discrimination. Second, the Commission contends that Mitchell did not establish a prima facie case of race discrimination or retaliation related to the Commission's failure to promote her to Associate Commissioner. Third, the Commission argues that Mitchell cannot rebut the non-discriminatory and non-retaliatory reasons for the decision not to consider her for the Associate Commissioner positions. We first consider whether Mitchell failed to timely file her charge related to the failure-to-promote claims.
In its answer and combined motion and plea, the Commission asserted that Mitchell is barred from bringing her failure-to-promote claims in this suit because she failed to timely file a charge of discrimination about them, which is a jurisdictional prerequisite for a suit on those claims. Before filing a suit in state court alleging claims under Chapter 21, a claimant must first "file a complaint of employment discrimination with the Texas Workforce Commission's civil rights division (TWC) or the EEOC not later than the 180th day after the date an allegedly unlawful employment practice occurs. Prairie View A&M Univ. v. Chatha, 381 S.W.3d 500, 503 (Tex. 2012); see also Tex. Lab. Code § 21.202. In Prairie View A&M, the Texas Supreme Court determined that "section 21.202's administrative filing requirement is a mandatory statutory requirement that must be complied with before filing suit, and, as such, is a statutory prerequisite under [Tex. Gov't Code] section 311.034." Prairie View A&M, 381 S.W.3d at 514; see also Te x . Gov't Code § 311.034 ("Statutory prerequisites to a suit, including the provision of notice, are jurisdictional requirements in all suits against a governmental entity."). When a claimant fails to timely file a complaint with the EEOC or TWC as required by Section 21.202, her lawsuit against a governmental entity is jurisdictionally barred. Prairie View A&M, 381 S.W.3d at 514.
In this case, Mitchell filed charges with the EEOC; under Title VII, charges filed by Texas employees are contemporaneously filed with the TWC. See Prairie View A&M Univ. v. Chatha, 381 S.W.3d 500, 503 (Tex. 2012); see also 42 U.S.C.A. § 2003-5(d). The EEOC investigated and disposed of the charges filed by Mitchell as "unable to conclude that the information obtained establishes violations of the statutes" and provided her with right-to-sue letters.
"Each discrete incident of discrimination-such as termination or failure to promote-and each retaliatory adverse employment decision constitutes a separate actionable unlawful employment practice." Harris Cnty. Hosp. Dist. v. Parker, 484 S.W.3d 182, 193 (Tex. App.-Houston [14th Dist.] 2015, no pet.) (citing National R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 114 (2002) (describing discrete acts such as termination and failure to promote as "easy to identify")). Discrete discriminatory acts are not actionable if time-barred, and each discrete discriminatory act starts a new clock for filing charges alleging that act. National R.R. Passenger Corp., 536 U.S. at 113. Discrete acts that fall within the statutory time period do not make timely acts that fall outside the time period. Id. at 112.
Mitchell filed her first EEOC charge on May 25, 2017, contending that she was denied the opportunity to be interviewed or considered for either of the two Director IV Associate Commissioner positions "based on age, race, sex discrimination and in retaliation from [her] complaining about the discrimination in the workplace." Her email to Pigott inquiring about why she was deselected was sent on September 7, 2016, meaning that March 6, 2017, is the latest date that she could have timely filed her charge of discrimination. See Tex. Lab. Code § 21.202(a); Prairie View A&M, 381 S.W.3d at 514.
Mitchell does not dispute that she filed the charge 260 days after she learned that she would not be interviewed for or offered the Associate Commissioner positions. Instead, she relies on an exception to the 180-day filing deadline "for unlawful discrimination that 'manifests itself over time, rather than [as] a series of discrete acts.'" University of Tex. v. Poindexter, 306 S.W.3d 798, 808 (Tex. App.-Austin 2009, no pet.) (quoting Wa l -Mart Stores, Inc. v. Davis, 979 S.W.2d 30, 41-42 (Tex. App.-Austin 1998, pet. denied)). Mitchell contends that because she alleges she reported "racial comments" to Griffith Peterson "and spoke up about the systemic racism she witnessed throughout HHSC," she has alleged "a persisting and continuing system of discriminatory practices." But even when such "continuing violation" discrimination occurs, the 180-day filing clock begins to run when one of the involved discriminatory events "should, in fairness and logic, have alerted the average layperson to act to protect his or her rights." Wa l -Mart, 979 S.W.2d at 42. A negative promotion decision is an event that should alert an employee to act to protect her rights. See Poindexter, 306 S.W.3d at 808-09 (concluding that even if employer's promotion decision was part of "continuing violation," date of that decision was latest date that 180-day filing clock could have started to run).
Mitchell also contends on appeal that the Commission committed continuing violations for every day that she did not receive pay for the Associate Commissioner positions for which she applied. This theory does not save her failure-to-promote claims. In Prairie View A&M, the Texas Supreme Court held that "the setting of an alleged discriminatory pay rate is a discrete act," and "[t]hus, an employee must file a complaint under the TCHRA within 180 days of the date she is informed of the alleged discriminatory pay decision." Prairie View A&M, 381 S.W.3d at 510.
We conclude that the jurisdictional evidence conclusively establishes that Mitchell's EEOC charge asserting her failure-to-promote claims was untimely filed under Section 21.202. Because she failed to comply with this statutory prerequisite to suit, her failure-to-promote claims are jurisdictionally barred. Prairie View A&M, 381 S.W.3d at 514. We sustain the Commission's first issue.
Because we conclude that Mitchell's failure-to-promote claims are jurisdictionally barred, we need not address the Commission's second issue, asserting that Mitchell failed to establish a prima facie case of race discrimination or retaliation, and its arguments that she cannot proffer a similarly situated comparator of a different race and that any protected activity by Mitchell occurred after she was denied the promotion, so there is no causal link between her protected activity and the adverse employment action. We also need not address the Commission's (renumbered) third issue contending that Mitchell cannot rebut the legitimate, non-discriminatory and non-retaliatory reasons for not promoting her-her poor judgment in approving Hall's daughter's hiring without first consulting Pigott and her inability to show that she is clearly better qualified than the people who were ultimately hired.
Mitchell's Disability Claims
In her petition, Mitchell alleges that the Commission discriminated against her based on her disability, which she states is anxiety, depression, and "post-traumatic stress syndrome." See Tex. Lab. Code § 21.051. She alleges that the Commission discriminated against her by terminating her after she reported her disability. See id. She also alleges that after she was on medical leave for anxiety, depression, and "post-traumatic stress syndrome," which the Commission perceived as a disability, she was terminated based on her perceived disability. In addition, Mitchell alleges that the Commission discriminated against her "in the form of failure to accommodate after she reported her disability and doctor recommendations," in violation of Texas Labor Code Section 21.128. Section 21.128 provides that "[i]t is an unlawful employment practice" for an employer "to fail or refuse to make a reasonable workplace accommodation to a known physical or mental limitation of an otherwise qualified individual with a disability who is an employee or applicant for employment," unless the employer shows "that the accommodation would impose an undue hardship on the operation of [its] business."
In its (renumbered) fourth, fifth, and sixth issues, the Commission argues that Mitchell did not (1) establish that she had a disability and that the Commission refused her a reasonable accommodation for that disability; (2) establish a prima facie case for her disability-discrimination claim or her retaliation claim; or (3) rebut the Commission's legitimate, non-discriminatory and non-retaliatory reasons for her termination. W e will first consider whether Mitchell has carried her burden under the McDonnell Douglas framework to establish her claim of discrimination on the basis of her disability or perceived disability and to show that Commission's asserted reason for her termination was pretextual. Then we will consider Mitchell's claim of failure to accommodate. Finally, we will consider whether Mitchell has carried her burdens to establish a prima facie case of retaliation based on her protected activity and to show that the Commission's asserted reason for terminating her was pretextual.
A. Mitchell failed to establish a prima facie case of disability discrimination or to show that the Commission's legitimate non-discriminatory reason for her termination was pretextual
The Commission asserts that Mitchell has failed to establish a prima facie case for her disability-discrimination claim because she has not established the first and third of the necessary elements. See, e.g., Cannon, 813 F.3d at 590 (explaining that employee must show she (1) "has a disability or was regarded as disabled," (2) "was qualified for the job," and (3) suffered "an adverse employment decision" because of her disability). The Commission contends that Mitchell neither pleaded facts nor produced evidence that she is disabled or was regarded as disabled. It further argues that she failed to establish any causal connection between any alleged disability and her termination.
To establish a prima facie case of disability discrimination, an employee must make a threshold showing that she has a disability. The Labor Code defines a disability as "a mental or physical impairment that substantially limits at least one major life activity of [the employee], a record of such an impairment, or being regarded as having such an impairment." Tex. Lab. Code § 21.002(6). "Substantially limits" means that the employee is
[u]nable to perform a major life activity that the average person in the general population can perform; or [s]ignificantly restricted as to the condition, manner or duration under which an individual can perform a particular major life activity as compared to the condition, manner, or duration under which the average person in the general population can perform that same major life activity.Hagood v. County of El Paso, 408 S.W.3d 515, 524 (Tex. App.-El Paso 2013, no pet.). Mitchell alleges in her petition that her anxiety, depression, and "post-traumatic stress syndrome" are a disability or that the Commission perceived these conditions to be a disability; however, she did not allege any facts showing how these conditions substantially limited at least one of her major life activities or showing that the Commission perceived those conditions as substantially limiting any of her major life activities.
In her response to the Commission's combined motion and plea and in her appellate brief, Mitchell argues that working is considered a major life function, citing Hartis v. Mason & Hanger Corp., 7 S.W.3d 700, 703 (Tex. App.-Amarillo 1999, no pet.). However, Hartis and other authorities indicate that when the employee asserts the major life activity limited by an impairment is "'working,' the individual's impairment substantially limits the activity when the impairment severely restricts or forecloses his ability to work in general." Id. (citing, e.g., Chevron Corp. v. Redmon, 745 S.W.2d 314, 318 (Tex. 1987); Azubuike v. Fiesta Mart, Inc., 970 S.W.2d 60, 63 (Tex. App.-Houston [14th Dist.] 1998, no pet.), disapproved of on other grounds by Glassman v. Goodfriend, 347 S.W.3d 772 (Tex. App.-Houston [14th Dist.] 2011, pet. denied)). As the Texas Supreme Court has more recently stated, "the issue is not whether the plaintiff can perform his particular job, but whether his impairment 'severely limit[s] him in performing work-related functions in general.'" City of Houston v. Proler, 437 S.W.3d 529, 533 (Tex. 2014) (quoting Chevron Corp., 745 S.W.3d at 318; citing Toyota Motor v. Williams, 534 U.S. 184, 200 (2002) ("[E]ven assuming that working is a major life activity, a claimant would be required to show an inability to work in a 'broad range of jobs,' rather than a specific job.")); see also Sutton v. United Air Lines, Inc., 527 U.S. 471, 493 (1999) (holding that inability to perform single, particular job does not substantially limit major life activity of working). Likewise, "[a]n impairment that affects only a narrow range of jobs can be regarded either as not reaching a major life activity or not substantially limiting one." Azubuike, 970 S.W.2d at 63.
Although Mitchell argues in her brief that the forms submitted to the Commission by her healthcare provider placed the Commission on notice that Mitchell "would need to either attend follow-up treatment appointments, work part-time, or on a reduced schedule due to [Mitchell's] medical condition" and that the Commission "was also on notice that [Mitchell] was ultimately unable to return to work, would need to remain on medical leave, and would need further evaluation," the February 16, 2017 forms do not demonstrate that Mitchell's anxiety and depression (the only conditions mentioned on the form) prevented her from "working in general," see Hartis, 7 S.W.3d at 703. Instead, in response to a question requesting that the healthcare provider state the job functions that Mitchell was unable to perform, the provider stated, "in-office work with current employer due to stressful conditions of [the] workplace." In addition, when asked to describe other relevant medical facts related to the condition for which the employee seeks leave, the provider stated that Mitchell was "unable to return to her work with current employer[.] She has been treated with medication and weekly counseling. She's still very depressed and anxious. Has lost weight due to poor appetite." The provider further stated that Mitchell was "not ready to go back to work with current employer[;] continue medical leave and re-evaluate in mid-May 2017; continue medication and regular counseling therapy." The record does not contain any later medical records or other evidence of Mitchell's medical condition after February 2017. The only other evidence in the record related to Mitchell's medical condition is her deposition testimony that her doctor had placed her on antidepressants "and other medications." She also testified that "at one point" she experienced physical pain including pain in her wrists, for which she received therapy, and back pain, for which she was given an injection in her back, and that her "gait was off a little bit." She did not testify or provide any evidence that she was substantially limited in any major life activity, other than working in her particular job.
Mitchell also did not allege facts or provide any evidence to establish that the Commission regarded her as having any mental or physical impairment that substantially limited at least one of her major life activities, and she does not argue on appeal that anyone at the Commission regarded her as disabled. In her deposition testimony, she did not provide any time frame for when her mental or physical symptoms began but stated only that she "was becoming increasingly depressed because of the environment and the way she was being treated." She also did not remember how she had characterized her illness when she first went out on leave, except that she "made it pretty clear that I had become sick, physically and mentally sick and traumatized, because of the hostility and the discrimination and all of it." Nothing in the record indicates that the Commission ever regarded her as having a disability.
On this record, we conclude that Mitchell has not established the necessary element of disability or being regarded as having a disability. We hold that Mitchell has not established a prima facie case for her disability-discrimination claim.
Because Mitchell did not establish a prima facie case for this claim, she is not entitled to the rebuttable presumption of discrimination. See Alamo Heights, 544 S.W.3d at 782. Instead, we must consider whether she has raised a fact issue on pretext and causation because "if, as here, jurisdictional evidence rebuts the prima facie case, the entire McDonnell Douglas framework is fully implicated, and sufficient evidence of pretext and causation must exist to survive the jurisdictional plea." Id. at 783-85. "The absence of a presumption triggers the plaintiff's duty to create a fact question on the ultimate issue-whether [discrimination] caused the adverse employment action-to survive a jurisdictional challenge." Id. at 784 (addressing analysis of retaliation claim). "The second and third McDonnell Douglas steps are part of an integrated evidentiary framework, and exempting them from [the jurisdictional] analysis" would be erroneous. Id. at 785.
The Commission notified Mitchell on July 26, 2017, that it was terminating her because she had been absent from work since September 30, 2016; she had exhausted all available accrued leave (including her FMLA job protection) and other awarded Sick Leave Pool and Extended Sick Leave; and she had not returned to work. Mitchell does not dispute these facts, but she asserts her subjective belief that the Commission's true reason for terminating her was disability discrimination. She complains about the short time referenced in Parks's March 2017 letter for responding with additional documentation, but she was not held to that deadline. She was granted more leave after that letter, and she was not terminated until all available leave was exhausted in July 2017. She does not identify any other employee who exhausted all available leave, had been absent from their position for nearly a year, and had made no attempts to return to work or indicated any date when they would return to work but remained employed. Mitchell has not presented any evidence that creates a fact issue on the truth of the Commission's reason for terminating her or on the ultimate issue of whether she was terminated because of discrimination based on her alleged disability. Thus, immunity has not been waived as to this disability-discrimination claim, and the Commission's combined motion and plea should have been granted dismissing it.
B. Mitchell's failure-to-accommodate claim fails because the evidence conclusively negates that (1) the Commission had notice of Mitchell's disability, if any, and (2) the Commission refused Mitchell a reasonable accommodation
Mitchell alleges that the Commission discriminated against her "in the form of failure to accommodate after she reported her disability and doctor recommendations," but she does not point to any specific request for accommodation that she made that was rejected. Texas Labor Code Section 21.128 provides that it is an unlawful employment practice for an employer
to fail or refuse to make a reasonable workplace accommodation to a known physical or mental limitation of an otherwise qualified individual with a disability who is an employee . . ., unless the [employer] demonstrates that the accommodation would impose an undue hardship on the operation of the business of the [employer].
The elements of a failure-to-accommodate claim overlap the elements of a disability-discrimination claim. Te x as Dep't of Fam. & Protective Servs. v. Howard, 429 S.W.3d 782, 789 (Tex. App.-Dallas 2014, pet. denied). To prove failure to accommodate, the employee must show that (1) she has a "disability," (2) the employer had notice of the disability, (3) the employee could perform the "essential functions" of the position with "reasonable accommodations," and (4) the employer refused to make such accommodations. Id.
The Commission argues that Mitchell has neither alleged nor provided sufficient evidence to create a fact issue on this claim. As explained above, Mitchell did not establish that she had a disability or that anyone at the Commission regarded her as having a disability, and thus, she cannot show that the Commission had notice of her alleged disability. Mitchell argues that the documents submitted by her healthcare provider placed the Commission on notice that she "would need to either attend follow-up treatment appointments, work part-time, or on a reduced schedule due to [he]r medical condition," but as noted above, that same form indicated that she was "ultimately unable to return to work, would need to remain on medical leave, and would need further evaluation." Mitchell again complains of the short timeline provided in Parks's March 2017 letter for providing documentation to support her request for additional Sick Pool Leave or for notifying Parks if she intended to request a reasonable accommodation if she had "a condition which [she] believe[s] requires a reasonable accommodation," but again, she was not held to that deadline. She was subsequently granted additional Sick Pool Leave and was not terminated until she had exhausted all available accrued and awarded leave in July 2017. She does not allege or demonstrate that she requested any sort of accommodation in that four-month period. Mitchell never alleges that she could perform the "essential functions" of her position with "reasonable accommodations," and there is no evidence that she ever requested any sort of accommodations from the Commission that were refused. We conclude that Mitchell failed to raise a fact issue on any element of her failure-to-accommodate claim, and therefore, we hold that the Commission established as a matter of law that the trial court lacked jurisdiction over that claim.
Mitchell's Retaliation Claims
Mitchell alleges that the Commission retaliated against her "in connection with the compensation, terms, conditions and privileges of employment or limited, segregated or classified [her] in a manner that would deprive or tend to deprive her of an employment opportunity or adversely affect her status because of [her] protected complaints," in violation of Texas Labor Code Section 21.055. Section 21.055 provides that an employer "commits an unlawful employment practice" if it "retaliates or discriminates against a person who, under [Chapter 21]: (1) opposes a discriminatory practice; (2) makes or files a charge; (3) files a complaint; or (4) testifies, assists, or participates in any manner in an investigation, proceeding, or hearing." In particular, Mitchell alleges that the termination letter, which stated the Commission's policy when an employee runs out of sick leave, included an option for the agency head to grant additional unpaid leave. Mitchell alleges that "this viable option was not offered to [her] in an effort to retaliate for filing an EEOC Charge of Discrimination and filing an Open Records request seeking information to support her allegations."
The Commission argues that Mitchell has failed to establish a prima facie case of retaliation as to her termination and to overcome the legitimate non-retaliatory reason for her termination. To establish a prima facie case of retaliation, Mitchell must show that (1) she engaged in an activity protected by the TCHRA, (2) she experienced a material adverse employment action, and (3) a causal link exists between the protected activity and the adverse action. See Alamo Heights, 544 S.W.3d at 782. The Commission argues that Mitchell cannot establish the third element because any alleged protected activity has no causal link to her termination.
The Commission asserts that to the extent Mitchell alleges that the September 2016 meeting with Griffith Peterson and the October 2016 meeting with Executive Commissioner Smith constitute her protected activity, the significant time lapse of approximately ten months between those meetings and the July 2017 termination letter does not provide any evidence of causation. See id. at 790 ("Temporal proximity is relevant to causation when it is 'very close.' Eight months . . . is so long as to be of little, if any, probative value. (emphasis added)). We agree that the ten-month gap is too long to provide any evidence of causation between that alleged protected activity and Mitchell's termination. However, Mitchell filed her first EEOC charge in May 2017, which is a protected activity. "The causation standard for the McDonnell Douglas prima-facie-case element is not onerous and can be satisfied merely by proving close timing between the protected activity and the adverse action." Id.; see also Evans v. City of Houston, 246 F.3d 344, 354 (5th Cir. 2001) (noting that time lapse of up to four months has been found sufficient to satisfy the causal connection for summary-judgment purposes). Accordingly, we conclude that Mitchell has established a prima facie case of retaliation by connecting her termination to her filing of the May 2017 EEOC charge.
"However, if the employer provides evidence of a legitimate reason for the adverse action, under the federal standard, the employee must prove the adverse action would not have occurred 'but for' the protected activity." Alamo Heights, 544 S.W.3d at 782 (applying but-for causation standard where parties did not assert any other standard should apply). "The but-for causation standard is significantly more difficult to prove than prima facie causation." Id. In this case, the Commission rebutted Mitchell's prima facie case by producing evidence of a legitimate reason for terminating Mitchell-that she had been out on sick leave since the end of September 2016, had exhausted her FMLA protections and all accrued and awarded leave, and had not returned to work. The Commission's rebuttal of her prima facie case means no presumption of retaliation exists. See id. at 784. "The absence of a presumption triggers the plaintiff's duty to create a fact question on the ultimate issue-whether retaliation caused the adverse employment action-to survive a jurisdictional challenge." Id.
Mitchell bears the burden to raise a fact issue that this explanation is a pretext and that she would not have been terminated but for her filing an EEOC charge. See id. at 790. As the Texas Supreme Court explained in Alamo Heights:
In evaluating but-for causation evidence in retaliation cases, we examine all of the circumstances, including temporal proximity between the protected activity and the adverse action, knowledge of the protected activity, expression of a negative attitude toward the employee's protected activity, failure to adhere to relevant established company policies, discriminatory treatment in comparison to similarly situated employees, and evidence the employer's stated reason is false.Id. Based on our analysis of these factors as a whole, we conclude no genuine fact issue about causation exists.
Although the time gap is relatively close and the Commission does not dispute that it knew of Mitchell's May 2017 EEOC charge, none of the other factors support a conclusion that but for the EEOC charge, Mitchell would not have been terminated. There is no evidence that anyone at the Commission expressed a negative attitude toward Mitchell's protected activity. The evidence in the record supports a conclusion that the Commission followed its established policies regarding Mitchell's leave and eventual termination. Although Mitchell alleges that "[i]t is customary practice for the Agency to send a preliminary 'Return to Work' warning letter, prior to the termination letter" and "no such letter was ever sent to Ms. Mitchell, thereby deviating from the normal practice in an effort to discriminate," Mitchell received such a letter in March 2017 and then was awarded additional leave after submitting further documentation. To the extent she contends she should have been sent a second letter, she does not allege facts and did not submit evidence showing what Commission policy was violated by the alleged lack of a second letter. And although she alleges that she was not offered the option of additional unpaid leave from the agency head when she ran out of sick leave, nothing in the Commission's policy indicates that such leave is automatically granted upon request. Instead, it is discretionary. Mitchell does not provide evidence of a similarly situated employee who was not terminated after being out on leave for the length of time Mitchell was without returning to work or of a similarly situated employee who was granted additional unpaid leave in like circumstances. Mitchell has produced no evidence that the Commission's stated reason for her termination is false. She has not established that she would not have been terminated but for her filing of the EEOC charge. Therefore, immunity has not been waived as to this retaliation claim, and the Commission's jurisdictional plea should have been granted dismissing it. See id. at 792.
Mitchell does not allege that she ever requested that the Commission offer her unpaid leave.
CONCLUSION
Because we conclude that immunity has not been waived as to Mitchell's TCHRA claims, we hold that the Commission's combined motion and plea should have been granted. W e reverse the trial court's orders and dismiss Mitchell's claims. See Tex. R. App. P. 43.2(c) (courts of appeals may reverse trial court's judgment and "render the judgment that the trial court should have rendered").
We need not reach the Commission's two remaining issues about the admissibility of Mitchell's declaration because nothing in the declaration is dispositive of whether immunity has been waived. See Tex. R. App. P. 47.1.