Opinion
03-20-00615-CV
02-03-2022
Patsy Jones, Appellant v. Texas Department of Public Safety, Appellee
FROM THE 126TH DISTRICT COURT OF TRAVIS COUNTY NO. D-1-GN-15-005182, THE HONORABLE SCOTT H. JENKINS, JUDGE PRESIDING
Before Justices Goodwin, Baker, and Jones [*]
MEMORANDUM OPINION
J. WOODFIN JONES, JUSTICE
DPS Trooper Patsy Jones sued the Texas Department of Public Safety for violations of the Texas Commission on Human Rights Act (TCHRA) based on religious discrimination, disability discrimination (including failure to accommodate), race discrimination, and retaliation. The DPS filed a combined plea to the jurisdiction and motion for summary judgment, asserting that the court lacked jurisdiction because Jones had not shown a waiver of sovereign immunity. The trial court granted the DPS's plea and motion and dismissed the case for lack of jurisdiction. Jones perfected this appeal from the dismissal of her claims of disability discrimination (including failure to accommodate) and retaliation. We affirm.
This Court has noted that the acronym "TCHRA" is technically a misnomer:
As the Texas Supreme Court explained, although courts often refer to Chapter 21 as the Texas Commission on Human Rights Act (TCHRA or CHRA), "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). Thus, the terms "TCHRA," "Chapter 21," and "the Act" are often used interchangeably in opinions applying the Act. See id.Harper v. PJC Air Conditioning & Plumbing, LLC, No. 03-19-00548-CV, 2021 WL 2125009, at *1 (Tex. App.-Austin May 26, 2021, pet. pending) (mem. op.). With that understanding, we also will refer to the statute as the TCHRA.
Jones does not appeal the dismissal of her race- and religious-discrimination claims.
Factual and Procedural Background
Trooper Patsy Jones was assigned to the Capitol Detail of the Department of Public Safety. On October 7, 2013, Jones sent an email to her superiors complaining that she was being harassed by three co-workers who were part of her shift at the Capitol Detail. At that time Jones was assigned to the "A-Shift," which was on duty from 6:00 a.m. to 2:00 p.m. The email contained several complaints, including that these co-workers gossiped about her private life and speculated openly about her having a romantic relationship with another trooper; accused her of abusing sick leave, never volunteering for anything, and never talking to anyone; called her "weird" and "crazy"; and teased her about her religion (Christianity), or more specifically about the way she practiced her religion.
There is conflicting evidence that Jones may have mentioned one or more of these problems to a superior as early as 2011.
With respect to her religion, Jones's email described that before the beginning of her shift she would often read her Bible or book of devotional readings. She stated that one of her co-workers would sometimes tease her about it, saying "God bless you" or "God bless them" and making the sign of the cross in front of her, while two other troopers encouraged this behavior.
In describing the effect her co-workers' gossiping had on her, Jones's email stated:
My nerves were out of control. I couldn't control my thought[s] on how these people continue to slander my name and discuss my personal life. I was getting these sharp headaches from the back of my head, tight intense pains in my shoulders, and my stomach unsettled. My heart, chest area had got tighten [sic].
Jones's email closed with the following:
I need help, I'm tired, and I'm perplexed. I'm the victim, for no reason whatsoever. Therefore, I request professional attention to help me understand how to mentally and emotionally deal with the unprofessional and prohibit [sic] conduct[] I had to endure. So, I can perform my job duties according to the department policies.
Chapter 18.25 of the DPS's General Manual contains DPS policies prohibiting "Discrimination, Sexual Harassment, and Unprofessional Conduct." The DPS considered Jones's October 7, 2013 email to be an "18.25 complaint."
One of the recipients of Jones's October 7 email was Capt. George Scheer. Within a day or two after Jones sent the email, Scheer met with her to discuss her complaints. During that meeting Jones began to cry, prompting Scheer to ask if she wanted to meet with the Department's chief staff psychologist, Dr. Frances Douglas. Jones agreed and met with Douglas the same day. Jones did not consider the meeting productive.
Scheer forwarded Jones's email to the DPS's Equal Employment Opportunity (EEO) officer, Nathaniel Haddox, "for any possible EEO policy violations." Within a short time Haddox and Scheer both concluded that the religion portion of the email did not describe a discrimination issue but a "bullying issue." Haddox indicated that he was "closing out the EEO case as 'referred to management' to handle." Scheer filled out an "18.25 Report Form" in which he noted that
This appears to be gossip in the work[place] and should probably fall under the department courtesy policy. A meeting would be facilitated with the employees
in the sergeant area to explain the policy, provide employee expectations, consequences, and examples of possible policy violations.
On October 14 a meeting was held at which all the troopers on the A-Shift were required to sign-or re-sign-the DPS's courtesy policy. Jones later reported that the religious bullying stopped around this time.
On October 21 Jones was interviewed by Lt. Tyler Harpole regarding an unrelated race-discrimination complaint filed by another trooper. (Jones was not the accused in that complaint.) During that interview Jones again brought up the issues she had addressed in her October 7 email and told Harpole that she thought the biggest problem at her shift was "unprofessional and prohibited conduct, gossiping, and slandering her name, always talking about people's personal business." Before and during the interview, Harpole noticed that Jones seemed "almost asleep" and was "slow to answer my questions and seemed to struggle to speak," so he sent her home for the rest of the day.
Two days later, on October 23, Jones had a conversation with her supervisor, Sgt. Todd Ashby, during which Ashby criticized her for leaving work early on the 21st. Jones said she "considered Ashby's tone and attitude towards me in the meeting to be hostile." Based on Ashby's criticism, on November 6 Jones filed a formal 18.25 complaint accusing him of race and sex discrimination as well as harassment through "unwanted criticism of one's job performance or work habits." On November 8 EEO officer Haddox notified Jones that this complaint was insufficient.
Meanwhile, on October 28 Jones met with a private psychologist of her own choosing, Dr. Abigail McNeely. On October 31 the DPS received a letter from McNeely stating:
Trooper Patsy Jones is under my care for acute stress and was directed to take the week off for medical care. Please allow her to return to work on November 4th, 2013.
The DPS granted the requested leave.
Around that same time Jones formally requested a "dispute resolution process," beginning with a meeting with her higher-level supervisor, Maj. Raul Vargas, to discuss the problems she was encountering. They met November 5, the day after Jones returned to work from her week off. Vargas's November 19 report of the meeting summarized Jones's complaint about the gossip and bullying that was affecting her. The report stated: "She was advised that personal supervisory visits are planned with those involved to reiterate the Department's Courtesy, Harassment and Hostile Work Environment policies, as well as area facilitation if needed." Jones later checked a box on the form that stated, "I am not satisfied with the outcome at this level and wish to meet with the next level in my chain of command."
On November 20 Jones and Ashby had a conversation in which Ashby allegedly criticized her for failing to call him over the previous weekend to let him know she would be out sick the following week. Jones later stated that Ashby also said during this meeting that he knew Jones did not like him, and that he asked her if she had considered transferring. Jones left that meeting "despondent" and immediately went to the office of her personal psychologist, Dr. McNeely. That same day McNeely sent the DPS a letter stating:
Trooper Patsy Jones is under my care for acute stress which is not resolving. I recommend that she take an extended leave of absence for the next six weeks, November 20th, 2013 through January 3rd, 2014. During that time, Ms. Jones will continue to see her Primary Care Physician and myself to address her ongoing medical and mental health issues.
The DPS also granted this requested leave, under the Family and Medical Leave Act (FMLA). See 29 U.S.C. § 2601(a)(1).
Prior to Jones's returning to work on January 7, 2014, Sgt. Ashby contacted her November 22 about three upcoming physical readiness tests she needed to take. Jones informed him that she was not allowed to conduct any DPS business, including taking the physical readiness tests, while she was on FMLA leave. On December 3 Ashby sent an interoffice memorandum to Capt. Scheer requesting that, due to the FMLA leave, "Trooper Jones be exempt from the physical readiness testing (PRT) requirements this cycle." Scheer and Lt. Glen Lester signed their approval to this request. Before sending the memorandum on to Regional Commander Jose Ortiz, Maj. Vargas hand wrote the following note to Ortiz:
Commander, I would concur with this request as Patsy has taken FMLA leave and can not be contacted. She has not shown a problem in her ability to complete this requirement, only a scheduling issue. She should be able to test and pass upon returning to work.
Ortiz also signed his approval on the memorandum.
On November 22 Jones requested a meeting with her next-in-line supervisor, Commander Ortiz, but due to her six-week FMLA leave that meeting did not take place until January 13, 2014. Ortiz's February 5, 2014 report of that meeting stated:
This office is recommending a formal facilitation through the Office of Ombudsman to assist Troopers and Supervisors assigned to the [Capitol Complex] and to address communication challenges. This recommendation is based on information received during my meeting with Trooper Patsy Jones, and other administrative factors, to include the conclusion of a formal 18.25 complaint where these matters were addressed.On the form containing Ortiz's summary, Jones again checked the box stating, "I am not satisfied with the outcome at this level and wish to meet with the next level in my chain of command."
Jones's next dispute-resolution meeting was February 12 with Lt. Colonel David Baker, the DPS's Deputy Director. Baker's summary of the meeting noted, "Concur with Commander Ortiz's recommendation of formal facilitation." Jones again checked the box on the form that stated, "I am not satisfied with the outcome at this level and wish to meet with the next level in my chain of command."
Jones immediately requested a meeting with the next level of command, DPS Director Steven McCraw, which was held February 28. In the meantime, however, a "workplace facilitation"-effectively a mediation-was scheduled by the DPS for February 21 and 22 at the office of the DPS Ombudsman. This mediation, which was to include members of the A-Shift, was to be preceded by a "one on one interview with the mediators" on February 19.
Jones was notified of the workplace facilitation by a February 10 email from Sgt. Ashby. On February 13 Jones replied to Ashby with the following email, which she copied to several of her other superiors:
I, Trooper Patsy M. Jones #10175, respectfully decline the scheduled workplace facilitation meditation. Due to my unpredictable, unhealthy health conditions, (mentally, emotionally and physically).
This email precipitated a flurry of communications among DPS officers in Jones's chain of command. Ortiz emailed Deputy Director Baker that "given Trooper Jones own statement, I have a greater concern in her ability to perform her duties." Baker, in turn, emailed DPS Director McCraw that "I request permission to require a psychological evaluation on this trooper." McCraw responded to Baker with the following email:
David, absolutely. We have an obligation to ensure that our officers are fit mentally, physically and emotionally. . . . [W]e need to suspend her with pay until we can be assured that she is fit to serve and let's make sure that she has access to professional counseling resources outside of the Department.
The next day, February 14, Ortiz hand-delivered Jones the following letter, which she acknowledged receiving that day:
Dear Trooper Jones,
I received your email reporting that you are declining workplace facilitation due to your stated "unpredictable, unhealthy health conditions, (mentally, emotionally and physically)." While these matters are being reviewed you are assigned temporarily to work from home. This is not discipline and does not affect your pay or benefits in any manner whatsoever. This is an assignment to work from home and you must be available to respond to any requests for information or directions to return to the office during this assignment between the hours of 8:00 a.m. and 5:00 p.m., Monday through Friday.
You are directed to contact me or Major Vargas by telephone each Monday before 10:00 a.m. so that you can be advised of any changes in duty assignment and given work tasks.
While you are assigned to home, you should not come into the office or interact with any employees in the office while this matter is being reviewed. If you have any issues or concerns requiring contact with this office, you are directed to only contact myself or Major Vargas.
Further, while we are reviewing this matter it is necessary to require that you turn your Department issued weapons in to me until further notice. You should not take any action as a peace officer during the pendency of the review of this matter.
Sincerely,
/s/ Jose Ortiz
Jose Ortiz
Regional Commander
Jones eventually had the requested dispute-resolution meeting with Director McCraw on February 28. His handwritten summary of the meeting stated:
Met and she was advised that her allegations were reviewed and that we must conduct a fitness for duty evaluation based upon her statement that she was mentally, physically & emotionally unable to perform her job. After that process is completed she can return to work. She wanted 2 female troopers held accountable for influencing another trooper to tease her.On March 4 Jones checked the box under McCraw's notes that stated, "I am satisfied with the outcome at this level."
On April 9, 2014, at the request of the DPS, Dr. McNeely sent an "Evaluative Medical Status Report" form (called an "HR-87") to Sgt. Ashby. Under the section of the report form for "general information," McNeely's report listed the diagnosis for Jones as "Acute Stress Disorder." The report stated the prognosis for Jones's condition as "Good," and when given the option to describe the disability as "Permanent" or "Temporary," McNeely checked the box for "Temporary." The form also asked for a completion of the question, "If temporary, these limitations are expected to end on ___." On the blank, McNeely hand wrote the words "Contingent upon environmental stressors, behavioral response, and physiological response. No symptoms at this time." In a section of the form labelled "Duty Status," McNeely checked the box that stated, "Employee may return to FULL DUTY (no restriction)." Finally, the last section of the form, labelled "Job Duties," described 55 potential job duties of a trooper and asked the reporting health-care provider-in this case Dr. McNeely-to indicate for each duty whether the employee had "No Restrictions, Able to perform," "Some Restrictions," or "Total Restrictions, Unable to perform." For each of the 55 duties listed, McNeely checked the box for "No Restrictions, Able to perform." This included the job duty described as "Dealing with stressful situations," although McNeely added the following handwritten note adjacent to that box: "monitor stress."
Like Jones's email of March 12, Dr. McNeely's April 9 report, which the DPS received on April 14, generated several email communications among DPS officers in Jones's chain of command. On April 14 Maj. Vargas sent an email to Commander Ortiz stating:
Commander - I reviewed the attached HR-87 and see that Patsy can return to full duty status?
I am not in complete agreement as the attached HR-87 states the employee's disability is temporary and limitations expected to end "contingent upon environmental stressors, behavioral response, and physiological response. No symptoms at this time." I don't see how we can control the environmental stressors, behavioral or physiological responses she may encounter while on duty? Also, the doctor indicates her Duty Status as being able to return to full duty, but the "Dealing with Stressful Situations" duty is marked as No Restrictions, but then a comment in the restrictions column requires us to "monitor stress"?
Ortiz immediately replied to Vargas with the following email:
I concur, the statements made by the doctor are confusing. With the "No symptoms at this time" statement made by the doctor, in my opinion the doctor has provided an all clear to return to complete duty, to include participating in the PRT [Physical Readiness Testing].
However, it also appears to me, the doctor has implied that any future conditions of "Acute Stress Disorder" although temporary, may occur at any time, and may only end based on the contingencies as written in Section II by the doctor.
Given the daily challenges and stresses placed on Troopers, and their requirements to possibly make critical split second decisions, I would ask HR to provide guidance on whether the statements made by the doctor actually provide some restrictions, and limit the ability of the Trooper to work in an environment that may bring upon the "Acute Stress Disorder" and thereby place the employee at risk.
That same day, Deputy Director Baker communicated his opinion in an email to Vargas, Ortiz, and two others:
I think it is time for a FFDE as per the following policy:
05.63.00 FITNESS FOR DUTY EVALUATION
Department of Public Safety employees have a responsibility to maintain the physical and psychological health required to carry out their job duties. The Director or his/her designee has the authority to require that a member of the Department submit to a fitness for duty evaluation (FFDE). When an employee is required to undergo a FFDE, the evaluation will be at the Department's expense and will be conducted by a qualified evaluator chosen by the Department.
A FFDE is a formal, specialized examination of an incumbent employee that results from (1) objective evidence that the employee may be unable to safely or effectively perform a defined job, and (2) a reasonable basis for believing that the cause may be attributable to a medical condition or impairment. The condition or impairment may be physical or psychological. The central purpose of an FFDE is to determine whether the employee is able to safely and effectively perform his or her essential job functions.
While DPS officials continued making plans for Jones to undergo a fitness-for-duty evaluation, on May 16 Jones filed a formal Equal Employment Opportunity Commission (EEOC) complaint alleging discrimination and retaliation. In the section for "Discriminatory Statement," the complaint stated: "I believe I am being discriminated against based on my Religion (Christian), Race (African American), I am regarded as disable[d], and I am being Retaliated against because I complained about Discrimination in my work place."
On June 17 DPS Psychologist Frances Douglas sent a memorandum to Amanda Arriaga, an Assistant Director in the DPS's Administration Division, in which she expressed her opinion that an FFDE for Jones was not justified:
I have reviewed the file requesting a fitness for duty evaluation for Trooper Patsy Jones prepared by Major Raul Vargas. . . . Based upon the file review, it is my opinion that there is insufficient information in this file to justify a fitness for duty evaluation of Trooper Patsy Jones.
Nonetheless, on July 8 Arriaga sent an interoffice memorandum to Deputy Director Baker setting forth a complete review of relevant events since Jones's FMLA leave began on November 22, 2013. Arriaga's review included a notation that on December 6, 2013, two psychologists, Dr. McNeely and Dr. Ann Hathcock, had submitted separate "HR-66" forms indicating that at that time Jones was unable to perform any of her duties that presented safety concerns. Concerning McNeely's April 9, 2014 HR-87 report, which cleared Jones to return to work without restrictions, Arriaga's memorandum stated:
These two forms are not in the appellate record.
A fitness for duty request is a meant [sic] to determine if an employee "is able to safely and effectively perform his or her essential job functions." Capitol Complex staff are not able to make a determination, based on the HR-87, as to whether Trooper Jones can effectively perform her job functions. The notes in the HR-87 itself are contradictory. The form clears Trooper Jones for duty but also stipulates that the fitness is contingent on environmental stressors. Capitol Complex staff cannot be expected to ensure that Trooper Jones' environment is stress free at all times.
Finally, Arriaga's memorandum included the following:
The Capitol Complex staff request a Fitness for Duty Evaluation for Capitol Trooper Patsy Jones.
After a review of the entire file, I recommend for your consideration that Trooper Jones undergo a Fitness of Duty Evaluation.
At the bottom of the memorandum, Baker hand-wrote "Please schedule a Fitness for Duty evaluation for Trooper Jones," followed by his signature and the date, "7/8/14."
Ten days later, on July 18, Maj. Vargas sent Commander Ortiz a lengthy interoffice memorandum, the subject of which was, "Essential Elements and Work History of Trooper Patsy Jones related to Fitness for Duty Evaluation Request." The review of Jones's work history began when she was first hired by the DPS in 2001. For most of her DPS career, she had received a rating of "Meets Expectations." Under the subheading "OIG/EEO Investigations," the memorandum continued:
In the Fall of 2013, Trooper Jones was part of an EEO complaint that resulted in an area wide facilitation for the 7A01 Day Shift Sergeant Area at the capitol Detail. The Facilitation process and her failure to participate is what led to her current situation and standing.
Regarding the ongoing conflict and Jones's by-now-recognized psychological condition, Vargas's memorandum addressed Dr. McNeely's April 9, 2014 report:
Upon review of the report, it was discovered that the report contained conflicting information in regards to the condition, prognosis, disability and limitations. As a result of the conflicting information, Trooper Jones was not allowed to return to full duty.
Vargas's memorandum concluded as follows:
Trooper Jones' complaints, reports and diagnosis are all related to and the result of gossip and rumors that have no physical impact on her or her duties and responsibilities. She has reported that she does not have the mental, emotional or physical preparedness and fitness to allow her to perform her duties as needed, and the last HR-87 report received from her Psychologist indicates she suffers from Acute Stress Disorder with a current "good" prognosis listed as "temporary" and that these limitations are expected to end "contingent upon environmental stressors, behavioral response, and physiological response. No symptoms at this time." As a law enforcement officer, we must continually meet the requirement and need to be mentally and physically prepared to respond to and handle any emergency crisis that may arise in order to protect and serve the citizens of Texas, as well as our co-workers. The potential for this occurring is around every corner!
Based on Trooper Jones' recent demeanor, actions and condition, I do not believe that she possesses the attributes necessary and needed to fulfill her commitment and duty to serve and protect those we have sworn to uphold. Based on my recent observations and findings, it is my belief that she would be more of an obstruction and hindrance in an emergency situation that could place her and those she works with in harm's way.
Four days later, on July 22, Director McCraw sent Jones a letter ordering her to submit to an FFDE in the form of a psychological examination:
It has been recommended that you be required to submit to a psychological examination to evaluate your suitability to continue to perform the duties of a peace officer. Based upon the recommendation of your chain of command and my staff, I have decided to order you to submit to a psychological examination. The examination will be administered by a professional psychologist selected by the Department and at the Department's expense.
. . . .
You are instructed to fully cooperate in each part of the evaluation process. This is a direct order. Any failure on your part to comply with this order could result in disciplinary action being taken against you, up to and including your termination.
Provided that you fully comply with the directions of this letter and those of your supervisors, this action will in no way affect your salary, benefits or other entitlements.
When this letter was hand-delivered to Jones on April 24, she refused to sign acknowledging receipt of it.
On July 29 Jones responded to the FFDE order with a lengthy letter to McCraw, stating in part:
Please consider this a complaint of retaliation and discrimination regarding your letter of July 22, 2014 that was entitled "Direct Order to Undergo Psychological Evaluation." I understand that you are the Director of the Agency and that we have various obligations to follow orders within the Agency, but in all due respect Sir I consider this order to be an illegal and retaliatory order.
The letter continued with complaints about the psychologist the DPS had chosen to conduct the evaluation and about the potential lack of confidentiality for Jones's personal information in the hands of this psychologist. Although the letter did not expressly so state, it is a fair reading that Jones was refusing to submit to the FFDE.
The psychological evaluation never took place. Subsequent discussions within the DPS, as well as negotiations between the DPS legal department and Jones's attorney, led to the FFDE order being withdrawn and Jones returning to work. On August 19 a member of the DPS General Counsel's office emailed Jones's attorney:
We believe it is in the best interest of all that Trooper Jones return to work as quickly as possible. Please let us know by Friday if she would like to transfer to a
different shift a[t] the Capitol. Her position on the A shift is available and there are vacancies on the B and C shifts as well if she desires to change.
Before Jones's attorney responded to this email, Jones herself sent the following email to Ortiz, copying McCraw and Vargas:
I have thought about this long and hard and think that I have made a decision about where I would like to be placed for my next assignment. My counsel has requested that I make the request for a temporary assignment instead of a permanent one. A duty assignment on C-Shift at The Capitol Complex detail will be appreciated, but I would like to first be able to sit down and visit with the Commander in that area to let them know that I will work hard, follow the rules and do my work. However, I want to get assurances in looking at the person eye to eye that they will agree not to retaliate against me because of my previous complaints or because I am a Religious person or for any other reason.
Shortly after Jones sent this email, her attorney emailed the DPS attorney that "Trooper Jones would like to take the C Shift at the Capitol beginning as early as Monday . . . ." Jones met with Ortiz on August 26 and that same day wrote Ortiz the following letter:
I am looking forward to working in your area and wanted to make that very clear. We know that I have the pending discrimination charges against the Agency but it is my sincere intention to work in this area and provide the very best work that I can. I ask that you let me know if anyone has issues with me or my work. In my past assignment some people took issue with my religious commitment and I will ask you to be aware of that and help me any way you can regarding it. Thank you for the opportunity to work in this area and I look forward to being a good and productive employee.
She returned to work on the C-Shift (10:00 p.m. to 6:00 a.m.) on August 27. Subsequent communications clarified that the move by Jones to the C-Shift was not "temporary" but would simply be her new duty assignment subject, as with any trooper's placement, to a future request for a shift change.
On September 5 Lt. Jeff Buuck of the DPS's Criminal Investigations Division submitted a lengthy report regarding an investigation he had conducted into Jones's complaints. In the report, Buuck was highly critical of the way in which Maj. Vargas handled the situation, stating in part that Vargas should have consulted directly with Dr. Douglas or Dr. McNeely, or had the DPS's HR department do so. Nonetheless, Buuck expressed his belief that Vargas's actions, though using improper procedures, were motivated by a genuine concern for Jones's psychological condition and the safety of Capitol personnel and visitors. Buuck also concluded that the DPS's policies about how to handle these sorts of unique circumstances were "vague" and "unclear."
On September 30, 2014, EEO officer Haddox completed and forwarded to Deputy Director Baker his own thorough review of Jones's EEO complaints. In the report, Haddox noted the significance of Jones's February 13, 2014 email declining participation in the workplace facilitation: "It is this email that begins a series of events that ultimately lead to Patsy Jones' complaint of discrimination and retaliation." Haddox's report went on to conclude:
Although I believe that management overreacted [to Jones's February 13 email], it is with hindsight and a different view that I make that observation. It would have been negligent for management to take no action or ignore the content of the email sent by Patsy.
On October 1 Baker sent Jones a letter regarding Lt. Buuck's investigation into Jones's EEO complaints. Baker's letter closed with the following: "The investigation found no evidence to support the alleged conduct. Therefore, no further Departmental action will be taken regarding this matter."
After receiving a right-to-sue letter from the Texas Workforce Commission, Jones sued the DPS in November 2015 alleging causes of action for discrimination based on race, religion, and disability, as well as for retaliation. The DPS filed a combined plea to the jurisdiction and motion for summary judgment, which the trial court granted. Jones perfected this appeal as to the claims of disability discrimination (which included a separate failure-to-accommodate claim) and retaliation. We will affirm the trial court's judgment.
Discussion
The trial court granted the DPS's combined plea to the jurisdiction and motion for summary judgment and dismissed Jones's claim for lack of jurisdiction. The Texas Supreme Court has set forth the proper procedure and standards for analyzing such claims:
The TCHRA waives immunity, but only when the plaintiff states a claim for conduct that actually violates the statute. To prevail on a claim of immunity, the governmental defendant may challenge[ ] whether the plaintiff has alleged facts that affirmatively demonstrate the court's jurisdiction to hear the case, the existence of those very jurisdictional facts, or both. Where the defendant challenges the existence of jurisdictional facts, as [the defendant] did here in its motion to dismiss, the court must move beyond the pleadings and consider evidence. The analysis then mirrors that of a traditional summary judgment.
[The plaintiff] thus had the burden to raise at least a genuine issue of material fact on each element of his claims. To determine whether he met that burden, we must take as true all evidence favorable to [him], indulging every reasonable inference and resolving any doubts in [his] favor.
The express purposes of the TCHRA include provid[ing] for the execution of the policies of Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e et seq.) and Title I of the Americans with Disabilities Act of 1990 (42 U.S.C. § 12101 et seq.). Accordingly, we have consistently held that those analogous federal statutes and the cases interpreting them guide our reading of the TCHRA.Texas Dep't of Transp. v. Lara, 625 S.W.3d 46, 52 (Tex. 2021) (footnotes and internal quotation marks omitted).
Disability-Discrimination Claim
Because Jones has not appealed the trial court's dismissal of her claims for discrimination based on race and religion, only the disability-discrimination claim is at issue in this portion of her appeal.
Section 21.051 of the TCHRA provides as follows in pertinent part:
An employer commits an unlawful employment practice if because of . . . disability . . . the employer:
(1) fails or refuses to hire an individual, discharges an individual, or discriminates in any other manner against an individual in connection with compensation or the terms, conditions, or privileges of employment; or
(2) limits, segregates, or classifies an employee or applicant for employment in a manner that would deprive or tend to deprive an individual of any employment opportunity or adversely affect in any other manner the status of an employee.Tex. Lab. Code § 21.051.
In construing the TCHRA Texas courts rely on the interpretation of parallel federal statutes, such as Title VII. Alamo Heights Indep. Sch. Dist. v. Clark, 544 S.W.3d 755, 764 n.5 (Tex. 2018) ("We consistently look to federal law to inform our construction and application of the TCHRA . . . ."); Avila v. United Parcel Serv., Inc., No. 03-18-00233-CV, 2018 WL 4100854, at *5 (Tex. App.-Austin Aug. 29, 2018, pet. denied) (mem. op.).
Sovereign immunity is waived only when a violation of the TCHRA is stated. Lara, 625 S.W.3d at 52. When, as here, a plea to the jurisdiction challenges the existence- rather than the mere pleading-of jurisdictional facts, we must "move beyond the pleadings and consider evidence when necessary to resolve the jurisdictional issues, even if the evidence implicates both subject-matter jurisdiction and the merits of a claim." Alamo Heights, 544 S.W.3d at 770-71. In the present case, the DPS's plea challenged the existence of facts sufficient to show a violation of Section 21.051. Accordingly, we must determine whether the record contains more than a scintilla of evidence of a statutory violation.
The elements of a disability-discrimination claim are as follows: "(1) the plaintiff has a disability, (2) the plaintiff was qualified for the job, and (3) the plaintiff suffered an adverse employment decision because of his disability." Lara, 625 S.W.3d at 61; accord Thompson v. Microsoft Corp., 2 F.4th 460, 470 (5th Cir. 2021), Harper v. PJC Air Conditioning & Plumbing, LLC, No. 03-19-00548-CV, 2021 WL 2125009, at *3 (Tex. App.-Austin May 26, 2021, pet. pending) (mem. op.); Avila, 2018 WL 4100854, at *5.
In the present case, the question of whether Jones suffered an "adverse employment decision" is dispositive in our resolution of Jones's disability-discrimination claim. We therefore need not address whether she satisfied the requirements to show that she had a disability and that she was qualified for the job.
In the context of a discrimination claim, federal and Texas courts construe the phrase "adverse employment decision" strictly. As the Fifth Circuit recently stated:
An adverse employment action is "a judicially-coined term referring to an employment decision that affects the terms and conditions of employment." Thompson v. City of Waco, 764 F.3d 500, 503 (5th Cir. 2014). We have consistently held that an adverse employment action is an "ultimate employment decision, such as hiring, granting leave, discharging, promoting, or compensating." McCoy v. City of Shreveport, 492 F.3d 551, 559 (5th Cir. 2007).Price v. Wheeler, 834 Fed.Appx. 849, 855 (5th Cir. 2020); see also Thompson, 2 F.4th at 470 ("Adverse employment decisions are 'ultimate employment decisions such as hiring, granting leave, discharging, promoting, . . . compensating,' or demoting." (quoting Pegram v. Honeywell, Inc., 361 F.3d 272, 282 (5th Cir. 2004))); Booker v. City of Austin, No. 03-09-00088-CV, 2013 WL 1149559, at *12 (Tex. App.-Austin Mar. 13, 2013, no pet.) (mem. op.) ("However, 'adverse employment actions' that are actionable in a job-discrimination claim '"include only ultimate employment decisions, such as hiring, granting leave, discharging, promoting, or compensating.'" (quoting McCoy v. City of Shreveport, 492 F.3d 551, 559 (5th Cir. 2007))); see also Harris Cnty. Hosp. Dist. v. Parker, 484 S.W.3d 182, 196 (Tex. App.-Houston [14th Dist.] 2015, no pet.) ("Adverse employment decisions do not include disciplinary filings, supervisor's reprimands, poor performance reviews, hostility from fellow employees, verbal threats to fire, or criticism of the employee's work.").
Jones's October 7, 2013 email complaining of the teasing, bullying, and/or harassing she was receiving from three of her co-workers was treated as an "18.25 complaint." Diagnosed on October 31 as suffering from acute stress, Jones requested a week off from work, which was granted. Subsequently she requested FMLA leave from November 22, 2013, to January 3, 2014, which was also granted. After an 18.25 complaint is filed by an employee, the DPS seeks to engage in an interactive process with the employee to resolve the situation. In the present case, the DPS conducted an investigation and initiated a series of interviews. Jones returned to work on January 7, 2014, after her FMLA leave ended. On February 10 Sgt. Ashby sent Jones a memo scheduling a "workplace facilitation" (mediation) for February 19. On February 13 Jones sent a memo to Ashby declining to participate in the mediation "[d]ue to my unpredictable, unhealthy health conditions, (mentally, emotionally and physically)." After various communications among DPS officers over the next 24 hours regarding Jones's email, on February 14, Commander Ortiz sent Jones a letter containing several restrictions that Jones identifies as the "adverse employment decision[s]" supporting her disability-discrimination claim:
• assigned her to work from home;
• ordered her to contact Ortiz or Vargas every Monday before 10:00 a.m.;
• directed her not to come to the office or interact with employees in the office;
• directed her to contact only Commander Ortiz or Maj. Vargas if she has any issues or concerns;
• ordered her to turn in her weapons; and
• directed her not to take any actions as a peace officer.
Jones asserts that this letter constituted an "adverse employment decision" primarily by (1) requiring her to work from home, (2) requiring her to turn in her gun, and (3) ordering her to perform no duties as a peace officer. She has also complained that she was later "forced" to work on the C-Shift (10:00 p.m. to 6:00 a.m.), and that this schedule made her life more difficult, thereby increasing her stress level. But none of these limitations rise to the level of an "ultimate employment action" as defined by federal and Texas courts: "hiring, granting leave, discharging, promoting, or compensating." See also Esparza v. University of Tex. at El Paso, 471 S.W.3d 903, 909-10 (Tex. App.-El Paso 2015, no pet.) ("[F]ederal courts have consistently held that suspensions 'with pay' are not adverse employment actions."). Accordingly, even if Jones met the other requirements to show disability discrimination, she has not presented evidence of a resulting adverse employment decision against her. Therefore, the trial court did not err in dismissing her disability-discrimination claim for lack of jurisdiction.
In a subsequent deposition, Jones complained that the restrictions could have kept her from obtaining additional income from an "off-duty job" such as a private security guard. But the restrictions contained in Ortiz's letter only prohibited Jones from acting as a "peace officer," and a private security guard does not fall within the statutory definition of "peace officer." See Tex. Code Crim. Proc. § 2.12. Accordingly, Jones has not shown that this restriction had any material effect on her life, much less that it constituted an "adverse employment decision."
Failure-to-accommodate claim
Jones also argues that the DPS violated the TCHRA by failing to grant her a reasonable workplace accommodation on the basis of a disability. The relevant TCHRA provision states:
It is an unlawful employment practice for a respondent covered under this chapter 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 respondent demonstrates that the accommodation would impose an undue hardship on the operation of the business of the respondent.Tex. Lab. Code § 21.128(a). A failure-to-accommodate claim is similar to a discrimination claim but has different elements. This Court recently held, for example, that:
The elements of a claim for disability discrimination under the TCHRA are that the plaintiff (1) has a "disability," (2) is "qualified" for the job, and (3) suffered an adverse employment decision "on account of" his disability. Similarly, the elements of a claim for failure to accommodate a disability are that "(1) the plaintiff is a 'qualified individual with a disability, '" (2) "the disability and its consequential limitations were 'known' by his employer, and (3) the employer failed to make reasonable accommodations for such known limitations."Avila, 2018 WL 4100854, at *5 (citations omitted; quoting Feist v. Louisiana Dep't of Justice, office of the Attorney Gen., 730 F.3d 450, 452 (5th Cir. 2013)).
It is not clear whether the "ultimate employment action" requirement for a discrimination claim under Section 21.051 of the TCHRA also applies to a failure-to-accommodate claim under Section 21.128. The Tenth Circuit, in an en banc decision, has held that it does not. See Exby-Stolley v. Board of Cnty. Comm'rs, 979 F.3d 784, 791-92 (10th Cir. 2020), cert. denied, 141 S.Ct. 2858 (2021) The Texas Supreme Court in Lara quoted Section 21.128 but did not address this question or set out the elements of a failure-to-accommodate claim. As far as we have been able to determine, no Texas court has taken a position on the question.
If the "ultimate employment action" requirement applies to a failure-to-accommodate claim, then our discussion and conclusion above (that Jones has not raised a material fact issue that she suffered an "ultimate employment action") are dispositive of that claim. We need not decide that question here, however, because we conclude that she has not presented evidence of a violation of Section 21.128 even if the "ultimate employment action" requirement does not apply.
The burden is on the employee to make a request for an accommodation. Clark v. Champion Nat'l Sec., Inc., 952 F.3d 570, 587 (5th Cir.) ("It is the plaintiff's burden to request reasonable accommodations."), cert. denied sub nom. Clark v. Inco Champion Nat'l Sec., Inc., 141 S.Ct. 662 (2020). Nonetheless, the test for whether the employee has sufficiently made such a request is not onerous. As the Texas Supreme Court has explained:
A guidance document on the interpretation of federal discrimination laws issued by the U.S. Equal Employment Opportunity Commission states that to make an accommodation request, an employee need only "let the employer know that [the employee] needs an adjustment or change at work for a reason related to medical condition." The request need not be in writing and need not mention discrimination laws or use the words "reasonable accommodation". The request can be made "in conversation" and with "plain English". The guidance document lists several examples of what a real-world request for accommodation might look like. Example B states: "An employee tells his supervisor, 'I need six weeks off to get treatment for a back problem.'"
. . . . The Third Circuit has likewise rejected the imposition of formalistic requirements on the plaintiff:
What matters under the ADA are not formalisms about the manner of the request, but whether the employee or a representative for the employee provides the employer with enough information that, under the circumstances, the employer can be fairly said to know of both the disability and desire for an accommodation.Lara, 625 S.W.3d at 53 (footnotes omitted) (quoting Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 313 (3d Cir. 1999)).
Although "plain English" will suffice to notify the employer of a disability, it is nonetheless true that "where the disability, resulting limitations, and necessary reasonable accommodations, are not open, obvious, and apparent to the employer, the initial burden rests primarily upon the employee . . . to specifically identify the disability and resulting limitations, and to suggest the reasonable accommodations." E.E.O.C. v. Chevron Phillips Chem. Co., 570 F.3d 606, 621 (5th Cir. 2009) (quoting Taylor v. Principal Fin. Grp., 93 F.3d 155, 165 (5th Cir. 1996)). The court in Chevron Phillips went on to hold that "[t]he employee must explain that the adjustment in working conditions or duties she is seeking is for a medical condition-related reason, but the employee does not have to mention the ADA or use the phrase 'reasonable accommodation.'" Id. at 621.
Including those expressly asserted by Jones, we have identified several communications by Jones or her representatives that might arguably be construed as a request for an accommodation for her disability:
• Jones's October 7, 2013 email complaining of harassment by three other troopers;
• Jones's October 21, 2013 interview with Lt. Harpole in which she mentioned the harassment by co-workers;
• Dr. McNeely's October 28, 2013 letter diagnosing Jones as suffering from "acute stress disorder" and requesting that she be given a week off from work;
• McNeely's November 20, 2013 letter/report requesting that Jones be given a six-week leave;
• Jones's February 13, 2014 email declining to participate in the scheduled workplace facilitation/medication due to her "unpredictable, unhealthy health conditions, (mentally, emotionally and physically)."
• McNeely's April 9, 2014 report listing diagnosis, contingencies, etc. but stating "no limitations."
We will discuss each of these communications in turn.
I. The October 7, 2013 email.
In this email Jones complains of other troopers' gossiping about her and teasing, bullying, or harassing her. She complains of resulting headaches, pain in shoulders, stomach unsettled, and tightened chest area. The email ended with the following:
I need help, I'm tired and I'm perplexed. I'm the victim, for no reason what so ever [sic]. Therefore, I request professional attention to help me understand how
to mentally and emotionally deal with the unprofessional and prohibit [sic] conduct I had to endure. So, I can perform my job duties according to the department policies.
This message is clearly a plea for help, but it neither identifies a disability nor requests any specific workplace accommodation.
The TCHRA defines "disability" as follows: "'Disability' means, with respect to an individual, a mental or physical impairment that substantially limits at least one major life activity of that individual, a record of such an impairment, or being regarded as having such an impairment." Tex. Lab. Code § 21.002(6). Jones's message lists discomforts she was feeling but does not, by itself, convey that such discomforts were the result of a disability, nor that they "substantially limit[ed] at least one major life activity." Indeed, as the Fifth Circuit recently stated, "Plaintiffs ordinarily satisfy the knowledge element by showing that they identified their disabilities as well as the resulting limitations to [the covered] entity or its employees and requested an accommodation in direct and specific terms." Francois v. Our Lady of the Lake Hosp., Inc., 8 F.4th 370, 378 (5th Cir. 2021) (quoting Smith v. Harris County, 956 F.3d 311, 317 (5th Cir. 2020)).
The Texas Supreme Court has recently stated that "[a]nti-discrimination laws-in their current incarnation-do not guarantee a pleasant working environment devoid of profanity, off-color jokes, teasing, or even bullying." Alamo Heights Indep. Sch. Dist. v. Clark, 544 S.W.3d 755, 763 (Tex. 2018). If "disability" were interpreted so broadly as to include every discomfort that resulted from an act of teasing or bullying, the term would be without limits.
Jones's reported discomfort stemmed from mistreatment by co-workers. Her October 7 email asks the DPS to intervene in an unidentified way, but the negative effects of the mistreatment mentioned in the email-headaches, shoulder pain, unsettled stomach-do not rise to the level of a "known physical or mental limitation." (Emphasis added.) Accordingly, the email did not put the DPS on notice that Jones was suffering from a disability as that term is defined in the TCHRA.
In addition, Jones's October 7 email did not request any specific accommodation by the DPS. Accordingly, even if the email could have alerted the DPS that Jones's request for "help" showed the existence of some form of disability, it could have done no more than require the DPS to begin a dialogue designed to obtain more information about the disability and, if necessary, find an appropriate accommodation. As the supreme court recently stated in Lara, "[O]nce the employee presents a request for an accommodation, the employer is required to engage in the interactive process so that together they can determine what reasonable accommodations might be available." Lara, 625 S.W.3d at 53 (quoting Chevron Phillips, 570 F.3d at 621 (emphasis in original)). Here, however, DPS did begin that process, including interviews with Jones's superiors, her co-workers, and the DPS's chief staff psychologist, as well as communications with Jones's personal psychologist.
Moreover, to the extent Jones suffered from a disability on October 7, 2013, it was not open and obvious. As this Court has held, where a disability is not open and obvious, it is the employee's responsibility to identify the disability and suggest a reasonable accommodation. Avila v. United Parcel Serv., Inc., No. 03-18-00233-CV, 2018 WL 4100854, at *8 (Tex. App.-Austin Aug. 29, 2018, pet. denied) (mem. op.); see also Dillard v. SNC-Lavalin Eng'rs & Constructors, Inc., 629 S.W.3d 692, 704 (Tex. App.-Houston [1st Dist.] 2021, no pet.) ("[W]hen an employee's disability or need for a particular disability-related accommodation is not obvious, the employee must timely notify his employer of the disability and afford his employer an opportunity to reasonably accommodate it."). Jones's October 7 email not only failed to identify a disability, it did not ask for any desired adjustment or change in her work arena. Accordingly, the email did not suggest a reasonable accommodation.
We conclude that Jones's October 7 email does not constitute more than a scintilla of evidence of a request for an accommodation for a disability within the meaning of the TCHRA.
II. The October 21, 2013 meeting with Lt. Harpole.
On October 21, 2013, Jones was interviewed by Lt. Harpole regarding an unrelated complaint filed by another trooper. According to Harpole's notes of the interview, Jones mentioned the gossiping and teasing she was experiencing from three of her co-workers. Again, however, she gave no indication that she was suffering from a disability, nor did she request an accommodation for any such condition. This interview therefore cannot be considered a request for a workplace accommodation.
III. The October 31, 2013 McNeely diagnosis of "acute stress disorder."
On October 31, 2013, Dr. McNeely, Jones's personal psychologist, sent a letter to Sgt. Ashby diagnosing Jones with "acute stress disorder": "Trooper Patsy Jones is under my care for acute stress and was directed to take the week off for medical care. Please allow her to return to work on November 4th, 2013." This is the first time that the DPS had notice of a specific disability for Jones. In response, the DPS allowed Jones to take off the time requested. Accordingly, assuming that the psychologist's request that Jones be given a week off from work constituted a request for an accommodation, this incident cannot be considered a failure to accommodate.
IV. The November 20, 2013 McNeely letter/report requesting a six-week leave.
On November 20, 2013, Dr. McNeely sent the following letter to Sgt. Ashby:
Trooper Patsy Jones is under my care for acute stress which is not resolving. I recommend that she take an extended leave of absence for the next six weeks, November 20th, 2013 through January 3rd, 2014. During that time, Ms. Jones will continue to see her Primary Care Physician and myself to address her ongoing medical and mental health issues. Prior to the expiration of the month, we will revisit the possibility of returning to work and make a decision based on current circumstances.
In response to this letter, the DPS allowed Jones to take off six weeks of FMLA time. Accordingly, this incident likewise cannot be considered a failure to accommodate.
V. Jones's February 13, 2014 email declining to participate in the scheduled workplace facilitation/mediation.
DPS leadership scheduled a workplace facilitation/mediation as a way of attempting to resolve the lingering issues between Jones and other troopers, whom Jones wanted held accountable for their prior bullying. In her February 13, 2014 email, Jones declined to participate in the scheduled facilitation, giving as her reason that she had "unpredictable, unhealthy health conditions, (mentally, emotionally and physically)." Assuming this message could be considered as a request for an accommodation, the accommodation requested was that she be excused from attending the facilitation/mediation. Although Jones's description of her condition set in motion a series of events designed to ensure that she could safely perform her duties at the Capitol, she was neither required to attend the mediation nor disciplined for refusing to attend, even though by DPS rules her attendance was not optional but mandatory. Accordingly, this event does not constitute evidence of a failure to accommodate.
VI. McNeely's April 9, 2014 report listing diagnosis, contingencies, etc. but stating "no limitations."
On April 9, 2014 Dr. McNeely sent an "Evaluative Medical Status Report" form to Sgt. Ashby. Under the section of the report form for "general information," McNeely's report listed the diagnosis as "Acute Stress Disorder." As described above, the report stated the prognosis for Jones's condition as "Good," and when given the option to describe the disability as "Permanent" or "Temporary," McNeely checked the box for "Temporary." The form also asked for a completion of the question "If temporary, these limitations are expected to end on ___." In the blank, McNeely hand-wrote the words "Contingent upon environmental stressors, behavioral response, and physiological response. No symptoms at this time." In the section of the form labelled "Duty Status," McNeely checked the box that stated, "Employee may return to FULL DUTY (no restriction)." Finally, the last section of the form, labelled "Job Duties," described 55 potential job duties of a trooper and asked the reporting health care provider-in this case Dr. McNeely-to indicate for each duty whether the employee had "No Restrictions, Able to perform," "Some Restrictions," or "Total Restrictions, Unable to perform." For all 55 duties listed, McNeely checked the box for "No Restrictions, Able to perform." This included the job duty described as "Dealing with stressful situations," although McNeely added a handwritten note adjacent to that box: "monitor stress."
As stated above, the last two of the three elements of a failure-to-accommodate claim are that "the disability and its consequential limitations were 'known' by his employer" and that "the employer failed to make reasonable accommodations for such known limitations." The form completed by McNeely indicated, however, that there were no restrictions or limitations on Jones's ability to perform her job. McNeely's handwritten notation to "monitor stress" is the functional equivalent of saying, "Keep an eye on her stress level." That does not rise to the level of a request for a workplace accommodation.
We conclude, therefore, that the record does not contain more than a scintilla of evidence that the DPS violated the TCHRA by "fail[ing] or refus[ing] to make a reasonable workplace accommodation to a known physical or mental limitation." See Tex. Lab. Code § 21.128. Accordingly, the trial court did not err in granting DPS's plea to the jurisdiction on that claim.
Jones also appears to argue that an accommodation was required because of the existence of evidence that she was "regarded as" disabled. See Tex. Lab. Code § 21.002(6) ("'Disability' means, with respect to an individual, a mental or physical impairment that substantially limits at least one major life activity of that individual, a record of such an impairment, or being regarded as having such an impairment." (Emphasis added.)) Whatever the breadth of the "regarded as" portion of the statute, it does not apply in a failure-to-accommodate claim. See Amedee v. Shell Chem., L.P., 953 F.3d 831, 837 (5th Cir. 2020) ("To establish a failure-to-accommodate claim, [a plaintiff] must demonstrate that she had a disability, not just that she was regarded as disabled.").
Retaliation
Jones's petition also alleged that the DPS unlawfully retaliated against her for "complaining about discrimination in the workplace." Section 21.055 of the TCHRA provides in relevant part:
An employer . . . commits an unlawful employment practice if the employer . . . retaliates or discriminates against a person who . . . opposes a discriminatory practice[, ] makes or files a charge[, ] . . . [or] files a complaint.Id. § 21.055. "Retaliation claims can be actionable under the TCHRA even if the underlying discrimination claim is not." Alamo Heights Indep. Sch. Dist. v. Clark, 544 S.W.3d 755, 781 (Tex. 2018).
The Texas Supreme Court recently reiterated the rules for evaluating a retaliation claim under the TCHRA:
[T]he three-part McDonnell Douglas burden-shifting framework enables an employee to establish discrimination with circumstantial evidence. If the employee can establish a prima facie case of discrimination, a rebuttable presumption of discrimination arises, which can alone sustain a discrimination claim. But the employer can defeat this presumption merely by producing evidence of a legitimate, nondiscriminatory reason for the disputed employment action. Once rebutted, the presumption disappears, and an employee lacking direct evidence cannot prove a statutory violation without evidence that the employer's stated reason is false and a pretext for discrimination. In both direct-and circumstantial-evidence cases, the burden of persuasion remains at all times with the employee. These three burden-shifting steps apply to retaliation claims, but the precise evidentiary elements of the prima facie case differ from discrimination cases due to the nature of the claims.
To establish a prima facie case of retaliation, an employee must show: (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. 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. 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. The but-for causation standard is significantly more difficult to prove than prima facie causation.Id. at 782-83 (footnotes omitted) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)); see also Texas Dep't of Transportation v. Lara, 625 S.W.3d 46, 57-58 (Tex. 2021); Democratic Sch. Rsch., Inc. v. Rock, 608 S.W.3d 290, 311-12 (Tex. App.-Houston [1st Dist.] 2020, no pet.); Avila, 2018 WL 4100854, at *9-10.
The requirement that an employee suffer an "ultimate employment decision," as is required for a discrimination claim, does not apply to a retaliation claim. The United States Supreme Court in Burlington Northern & Santa Fe Railway Co.. v. White, 548 U.S. 53, 61-63 (2006), held that "[t]he scope of the antiretaliation provision [of Title VII] extends beyond workplace-related or employment-related retaliatory acts and harm." Based on the Supreme Court's holding, the Fifth Circuit has held that its "ultimate employment decision" requirement does not apply to a retaliation claim. See McCoy v. City of Shreveport, 492 F.3d 551, 559 (5th Cir. 2007) ("Even though our precedent recognizing only 'ultimate employment decisions' as actionable adverse employment actions remains controlling for Title VII discrimination claims and therefore continues to justify summary judgment dismissal of McCoy's discrimination claims, her retaliation claims requires [sic] a closer look post-Burlington Northern.").
Rather, in evaluating a retaliation claim, "[m]aterially adverse 'means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.'" Alamo Heights, 544 S.W.3d at 788 (quoting Burlington Northern, 548 U.S. at 68). Given that the test uses "reasonable worker" as the touchstone, it is an objective standard. See Montgomery County v. Park, 246 S.W.3d 610, 614 (Tex. 2007).
Jones asserts that she suffered several "material adverse employment actions," including the following:
• She was sent to a psychologist, received several criticisms from Ashby, was ordered to attend a mediation, and her complaints were not taken seriously enough by superiors as she went "up the chain of command";
• She was ordered to work from home, was ordered to turn in her weapon, and was prohibited from acting as a peace officer;
• She was ordered to undergo an FFDE psychological evaluation; and
• She was forced to move to the C-Shift.
With respect to being "sent" to see the DPS's staff psychologist, Dr. Douglas, the record contains undisputed evidence that Jones told Capt. Scheer that she agreed to see the psychologist. As to Jones's complaints about criticisms by Maj. Ashby, such actions do not constitute adverse employment actions: "Courts have repeatedly held that complaints of ostracism and personality conflicts, unfair criticism, and heated exchanges are petty annoyances, not conduct likely to deter an employee from making a discrimination complaint." Alamo Heights, 544 S.W.3d at 789 (footnotes omitted). Nor do we think her general expression of dissatisfaction with the outcomes of meetings with her superiors would dissuade a reasonable worker from making or supporting a charge of discrimination or retaliation. And the same is true of the DPS's scheduling of a "workplace facilitation/mediation" in an attempt to resolve any continuing harassment about Jones's religion. We conclude that, under the circumstances of the present case, none of these actions qualify as "material adverse employment actions."
Commander Ortiz's notes from his January 13, 2014 meeting with Jones stated:
This office is recommending a formal facilitation through the office of Ombudsman to assist Troopers and Supervisors . . . and to address communication challenges. This recommendation is based on information received during my meeting with Trooper Patsy Jones, and other administrative factors, to include the conclusion of a formal 18.25 complaint where these matters were addressed.
Jones also complains that her transfer to the C-Shift (10:00 p.m. to 6:00 a.m.) was an adverse employment action that was effectively ordered by the DPS because, she argues, her only other option, returning to the A-Shift, was not viable since that is where the harassment/bullying had taken place. And she complains that her assignment to the C-Shift interfered with her quality of life in numerous ways. But the undisputed evidence is that transferring to the C-Shift was not her only other option. She was given the choice not only of going back to the A-Shift but also of transferring to the C-Shift or the B-Shift (2:00 p.m. to 10:00 p.m.). Jones's transfer to the C-Shift was therefore her own choice, not an order from the DPS. Accordingly, we conclude that her transfer to the C-Shift cannot, under the circumstances of the present case, qualify as a material adverse employment action.
Jones also complains that the DPS's order for her to submit to a "fitness for duty evaluation" was a material adverse employment action. To recap the relevant undisputed facts reflected in the record, the DPS scheduled a "workplace facilitation/mediation" with all members of the A-Shift in an effort to resolve any continuing harassment/bullying about Jones's religion. Jones declined to participate, however, citing as the reason her "unpredictable, unhealthy health conditions (mentally, emotionally and physically)." The next day Jones was ordered to work from home, with pay, while the DPS determined what to do in light of this statement. Jones's personal psychologist, Dr. McNeely, later filed an "Evaluative Medical Status Report" (designated an "HR-87") in which she cleared Jones for return to duty, but the Report contained comments that Jones's superiors found confusing and contradictory. The DPS decided to have Jones undergo a psychological FFDE examination before allowing her to return to work at the Capitol. After Jones objected to this order, and Douglas opined that she believed there was "insufficient information in this file" to justify an FFDE, the order was withdrawn. Jones never underwent the planned evaluation.
Thus, even assuming that Jones engaged in a protected activity before February 14, a threshold issue is whether the record contains more than a scintilla of evidence that the mere issuance of an order for a psychological FFDE, later withdrawn, would be sufficient to dissuade a reasonable worker from making or supporting a charge of discrimination. We conclude it would not. The record does not contain evidence that any of Jones's co-workers (other than her superiors) even knew of the proposed evaluation, nor is there evidence of any stigma or other harmful effect attributable to the order itself. Accordingly, we conclude that the order to undergo a psychological FFDE, later withdrawn, cannot, under the circumstances of the present case, qualify as a material adverse employment action. See Caver v. City of Trenton, 420 F.3d 243, 256 (3d Cir. 2005); Benningfield v. City of Houston, 157 F.3d 369, 376 (5th Cir. 1998) (referral of police officer for psychological testing to determine fitness for duty, in and of itself, "was not an adverse employment action. Rather, the referral was designed to gather facts to form the basis for an employment decision.").
The only DPS action left that might qualify as a material adverse employment action is the order for Jones to work from home, turn in her weapon, and refrain from any work as a peace officer. Focusing on that order, the McDonnell Douglas burden-shifting framework requires that Jones first establish a prima facie case of retaliation by showing that: (1) she engaged in a protected activity; (2) an adverse employment action occurred; and (3) a causal link existed between the protected activity and the adverse action.
Even when the employee has satisfied the prima-facie-case element of the McDonnell Douglas standard, however, the employer has an opportunity to present evidence of a legitimate, nondiscriminatory reason for the employment action:
If the employee can establish a prima facie case of discrimination, a rebuttable presumption of discrimination arises, which can alone sustain a discrimination claim. But the employer can defeat this presumption merely by producing evidence of a legitimate, nondiscriminatory reason for the disputed employment action. Once rebutted, the presumption disappears, and an employee lacking direct evidence cannot prove a statutory violation without evidence that the employer's stated reason is false and a pretext for discrimination.Alamo Heights, 544 S.W.3d at 781 (footnotes omitted). When the employer provides evidence of a legitimate, nondiscriminatory reason for the adverse action, "the employee must prove the adverse action would not have occurred 'but for' the protected activity. The but-for causation standard is significantly more difficult to prove than prima facie causation." Id.; see also Lara, 625 S.W.3d at 57-58.
Here, the DPS produced evidence that its work-from-home order of February 14, 2014, resulted from Jones's self-described condition of "unhealthy health conditions (mentally, emotionally, and physically)," which was communicated to the DPS on February 13, and the concerns of her chain of command that she could be emotionally or psychologically unfit at that time to act as an armed DPS trooper in the State Capitol. That evidence satisfied the McDonnell Douglas requirement of a "legitimate, nondiscriminatory reason" for the employment action, thereby placing the burden on Jones to present evidence that the DPS's asserted reason for the work-from-home order was pretextual.
Because we conclude that Jones has not raised a material fact issue that the DPS's asserted reason for the work-from-home order was pretextual, her retaliation claim fails even if she established a prima facie case of retaliation as to this order. See McCoy, 492 F.3d at 559. We will assume without deciding that she established such a prima facie case.
Texas and federal courts have consistently held that at the pretext stage the issue is not whether the employer was wrong in its belief or process, but whether the asserted reason for its action was honest. See, e.g., Alamo Heights, 544 S.W.3d at 792 ("The issue is whether the employer's perception of the problems-accurate or not-was the real reason for [the adverse employment action]."); Datar v. National Oilwell Varco, L.P., 518 S.W.3d 467, 481 (Tex. App.-Houston [1st Dist.] 2017, pet. denied) ("The issue at the pretext stage is not whether the employer made an erroneous decision; it is whether the decision, even if incorrect, was the real reason for the employment determination."); Jespersen v. Sweetwater Ranch Apartments, 390 S.W.3d 644, 655-57 (Tex. App.-Dallas 2012, no pet.) ("[T]he question is not whether the employer's reasons for a decision are 'right but whether the employer's description of its reasons is honest.'" (quoting Kariotis v. Navistar Int'l Transp. Corp., 131 F.3d 672, 677 (7th Cir. 1997))); Tawil v. Cook Children's Healthcare Sys., 582 S.W.3d 669, 685-86 (Tex. App.-Fort Worth 2019, no pet.) (same, quoting Jespersen, 390 S.W.3d at 656); Houston Cmty. Coll. v. Lewis, No. 01-19-00626-CV, 2021 WL 2654141, at *17 (Tex. App.-Houston [1st Dist.] June 29, 2021, no pet.) (mem. op.) ("The ultimate question for the court 'is not whether an employer made an erroneous decision; it is whether the decision was made with discriminatory motive.'" (quoting Jespersen, 390 S.W.3d at 657)); Zuniga v. City of San Antonio ex rel. City Pub. Serv. Bd., No. 04-13-00142-CV, 2014 WL 60929, at *4 (Tex. App.-San Antonio Jan. 8, 2014, pet. denied) (mem. op.) ("[P]retext analysis asks whether employer's description for its reasons for a decision are honest, not whether they are right." (citing Jespersen)); Texas Dep't of Motor Vehicles v. Bustillos, 630 S.W.3d 316, 334 (Tex. App.-El Paso 2021, no pet.) ("Management does not have to make proper decisions, only non-discriminatory ones." (quoting Chandler v. CSC Applied Techs., LLC, 376 S.W.3d 802, 818 (Tex. App.-Houston [1st Dist.] 2012, pet. denied))).
Thus, at the pretext stage Jones had the burden to present evidence that the DPS's asserted reason for the work-from-home order-that Jones's supervisors were concerned about her emotional and psychological state and the safety of Capitol visitors-was not the real reason for the order, i.e., that it was false or incredible. This she did not do.
Jones places great weight on a subsequent internal investigation by Lt. Jeff Buuck, arguing that it shows the DPS's basis for the work-from-home order to be pretextual. In his report, Buuck criticized the procedure used by Maj. Vargas in pressing for the orders requiring Jones to work from home and submit to an FFDE. As to both orders, however, Buuck concluded that Jones's February 13 email led Vargas to be genuinely concerned about Jones's psychological state; he criticizes only the process by which Vargas arrived at the orders:
Major Vargas established his motivation to take such action [work-from-home order] was for the safety of Capitol personnel and visitors. However, the concern for Jones' behavior was not such that any emergency procedures take place in evaluating Jones.
This investigation found the intent of placing Jones on this [work-from-home] status was wholly focused on Jones' regarded psychological condition. Vargas acknowledged he understood Jones was cleared to return to normal duties by the Psychologist and HR but he refused to follow this guidance. At the core of the decision making process in Jones' case is Vargas' belief that the supervisor is more capable of assessing an employee's psychological status at work than a Licensed Psychologist. . . . It is Lt. Buuck's opinion this basis, led the management team down a path of insistence that Jones had some sort of psychological stress response disorder requiring management intervention.(Emphasis added.)
Thus, although Buuck faults Vargas for placing his personal concern for the safety of Capitol personnel and visitors above the opinion of a licensed psychologist, and for failing to consult directly with the psychologist, he does not question the honesty of Vargas's motives. Accordingly, under the holdings cited above, Buuck's conclusions do not constitute more than a scintilla of evidence that the DPS's nondiscriminatory reasons for issuing the work-from-home order were dishonest and pretextual. The way Vargas proceeded may have been flawed, but Jones's evidence does not tend to show that it was based on a discriminatory or retaliatory motive.
Although Jones also presented evidence that she genuinely believed she was being retaliated against by the work-from-home order, "an employee's subjective beliefs of retaliation are merely conclusions that are not competent evidence." Texas Div.-Tranter, Inc. v. Carrozza, 876 S.W.2d 312, 314 (Tex. 1994); see also Alamo Heights, 544 S.W.3d at 773 & n.44; Avila, 2018 WL 4100854, at *9.
Nor does the timing of relevant events show pretext here. As the Fifth Circuit has held,
"Close timing between an employee's protected activity and an adverse action against him may provide the 'causal connection' required to make out a prima facie case of retaliation." "However, once the employer offers a legitimate, nondiscriminatory reason that explains both the adverse action and the timing, the plaintiff must offer some evidence from which the jury may infer that retaliation was the real motive."McCoy v. City of Shreveport, 492 F.3d 551, 562 (5th Cir. 2007) (footnotes omitted, emphasis in original) (quoting Swanson v. General Servs. Admin., 110 F.3d 1180, 1188 (5th Cir. 1997)); see also Williams v. Marietta, 851 Fed.Appx. 475, 479 (5th Cir. 2021) ("[T]he pretext stage . . . requires a showing of but-for causation, which requires more than mere temporal proximity." (quoting Garcia v. Professional Cont. Servs., Inc., 938 F.3d 236, 243-44 (5th Cir. 2019))). We find no such evidence in the record here. In short, Jones's evidence falls short of raising a genuine issue of material fact that the DPS's asserted reason for the work-from-home order was dishonest and that the adverse action would not have occurred "but for" a protected activity.
Accordingly, Jones did not present more than a scintilla of evidence that the DPS's actions violated the antiretaliation provision of the TCHRA. See Tex. Lab. Code § 21.055. The trial court did not err in dismissing Jones's retaliation claim for lack of jurisdiction.
Conclusion
Having overruled Jones's appellate issues, we affirm the trial court's judgment.
Affirmed
[*] Before J. Woodfin Jones, Chief Justice (Retired), Third Court of Appeals, sitting by assignment. See Tex. Gov't Code § 74.003(b).