Lamar University v. Joy Del Snook

• Court: Court of Appeals of Texas
• Decided: September 29, 2022
• Docket: 09-21-00143-CV
• Status: Published

Opinion

In The

Court of Appeals

Ninth District of Texas at Beaumont

__________________

NO. 09-21-00143-CV __________________

LAMAR UNIVERSITY, Appellant

V.

JOY DEL SNOOK, Appellee

__________________________________________________________________

On Appeal from the 136th District Court Jefferson County, Texas Trial Cause No. D-204160 __________________________________________________________________

MEMORANDUM OPINION

Appellant, Lamar University (“Lamar”), brings this interlocutory appeal

challenging the trial court’s denial of a combined plea to the jurisdiction and motion

for summary judgment, seeking dismissal of a lawsuit filed by appellee, Dr. Joy Del

Snook. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(8). We reverse the trial

court’s order denying Lamar’s Plea to the Jurisdiction and Motion for Summary

Judgment and render judgment that Snook take nothing against Lamar.

1 BACKGROUND

Snook sued Lamar for violations of section 21.055 of the Texas Commission

on Human Rights Act (TCHRA), alleging causes of actions for disability

discrimination, harassment, and retaliation, which allegedly occurred after she

engaged in a protected activity and resulted in a hostile work environment. See Tex.

Labor Code Ann. §§ 21.051, 21.055. In her pleading, Snook stated she had been a

full-time assistant professor at Lamar since September 2014 and that Lamar singled

her out and discriminated against her based on her disability. Snook explained that

she was born with cerebral palsy and used an assistive device for walking, and she

reported her inability to access buildings, bathrooms, classrooms, and parking to the

Human Resources Department, Department Chairs, and upper administration.

According to Snook, she notified Dr. Rebecca Weinbaum, Dean Robert Spina, the

Human Resources Department, and the Disability Service Coordinator about her

inability to access buildings and attend events in the school’s Price Auditorium,

which is inaccessible to faculty, staff and students who have mobility impairments

requiring an assistive device. Snook explained that her inability to fully access

buildings caused her to miss presentations and functions that faculty members were

expected to attend.

Snook also alleged that Lamar and Weinbaum, her previous Department

Chair, failed to consider her requests for accommodations so she could meet her

2 research and service requirements for tenure and promotions. Snook explained that

when she received her 2016 Annual Review, which included a score of 3.1 out of 5,

she told Weinbaum and Spina that her evaluation failed to consider her physical

limitations, especially in terms of service and research requirements, and used

different percentage rates than her colleagues. According to Snook, Weinbaum’s

failure to revise her evaluation affected her ability to achieve tenure and promotional

opportunities. Snook alleged that after she complained about her 2016 Annual

Review, Weinbaum removed her as the Clinical Mental Health Counseling (CMHC)

Field Experience Coordinator and told her it was to “protect her,” and removed her

as the faculty representative for Chi Sigma Iota Honor Society (CSI). Snook

maintained that she could fulfill those positions regardless of her mobility

impairment, and the removals impeded her ability to meet service requirements at

the national, university/college, community, and profession levels as required for

tenure and promotion, which was one reason for her low evaluation score. Snook

also alleged that Weinbaum removed her from her assigned courses, which affected

her income and reputation.

Snook maintained that Lamar violated her rights by failing to offer her

reasonable accommodations after numerous requests, which led to Lamar

discriminating against her based on her disability and giving her a poor performance

review in which she was measured unfairly with her non-disabled colleagues. Snook

3 argued that after she complained about her poor review, Lamar retaliated against her

by removing her from her roles and courses and depriving her of tenure and

promotions.

Lamar filed a general denial and asserted, among others, the affirmative

defense of governmental and/or sovereign immunity. Lamar filed a Plea to the

Jurisdiction and Motion for Summary Judgment on both no-evidence and traditional

grounds. Lamar argued Snook’s claims were jurisdictionally barred because she

failed to show the essential elements of her claims. Lamar further argued that

Snook’s deposition testimony and other uncontested evidence negate elements of

her prima facie claims, depriving the trial court of jurisdiction. According to Lamar,

the Equal Employment Opportunity Commission (EEOC) investigated Snook’s

claims and found the evidence failed to show Snook was subjected to an objectional

or offensive working environment that rose to the level to create harassment based

on disability which affected the outcome of her performance evaluation. Lamar

maintained that Snook had not suffered any adverse employment actions because

she is still employed, and Lamar has accommodated her throughout her employment.

Lamar argued that Snook failed to establish a waiver of sovereign immunity under

the TCHRA. Lamar alternatively argued the trial court should dismiss Snook’s case

because she cannot produce more than a scintilla of evidence raising a genuine issue

4 of material fact on the elements of her prima facie claims of disability discrimination,

retaliation, and failure to accommodate.

Lamar argued that Snook admitted in her deposition that she was not

discriminated against in her 2016 evaluation or retaliated against based on her

disability, and that she has not suffered an adverse employment action. Lamar

claimed the evidence affirmatively negates Snook’s claims that Lamar failed to

provide her with reasonable accommodations or treated her differently than any

similarly situated person. According to Lamar, Snook referenced a hostile work

environment claim for her department rather than herself, which does not rise to the

level required by law, and she does not claim it is because of her disability.

With regard to Snook’s 2016 Annual Review, Lamar explained that

Weinbaum was the Interim Chair when she conducted Snook’s review. University

policy requires every faculty member to complete an annual review report setting

forth their previous year’s contributions in the areas of teaching/instruction,

research, publication and creative activities, and professional services to the

discipline, university and/or community. Lamar explained that the annual review

report is scored on a scale of one to five and the areas are weighed as follows:

Teaching-40%, Research-40%, and Service-20%. Lamar further explained

Weinbaum assigned Snook a cumulative score of 2.9 with a score of 4 for teaching,

2 for research, and 2.5 for service. According to Lamar, Snook’s score was based on

5 the same weight distributions used to assess all tenure-track faculty members in her

department. Lamar explained that Weinbaum informed Snook her score was based

on a lack of documentary evidence and a duplicate publication entry from a prior

year’s report. According to Lamar, since Snook did not understand the annual review

process, Weinbaum allowed her to submit a revised report to eliminate incorrect

information and include necessary documentation to possibly improve her score.

Lamar explained that when Snook submitted her revised report, Lamar

granted Snook’s request to change the weight distributions as permitted under its

policy to 50% for teaching, 30% for research and 20% for service. Based on the

modified weight distributions, Weinbaum assigned Snook a score of 3.1, which was

passing and allowed Snook to receive a merit increase. According to Lamar,

Weinbaum increased Snook’s service score from 2.5 to 3, but Weinbaum felt Snook

had failed to meet her research goals and needed to establish a clear research agenda

via peer reviewed publications, which was important to tenure. Lamar explained that

if Weinbaum had used the weight distributions applied to the other faculty in her

department, Snook’s score would have been lower than 3.1. Although Snook

disagreed with her score, it should be noted that Snook testified in her deposition

that she did not believe Weinbaum discriminated against her due to her disability.

Concerning Snook’s removal from her positions, Lamar explained that it was

not uncommon for faculty members to rotate their program roles, and such changes

6 are especially relevant because research is more heavily weighted than program

work, which tends to not rise to the level of service on the national, professional, or

university level. According to Lamar, changing field experience coordinators is

common practice, and Snook was not the only field experience coordinator to

transition out of her program role in 2017. Lamar argued that Snook’s transition in

2017 did not affect her 2016 Annual Review, and Weinbaum informed Snook that

program work held minimum weight in the promotion and tenure review and

encouraged her to participate in service with professional organizations, the

community, and university/college. According to Lamar, it should be noted that

Snook acknowledged in her deposition that she never applied or attempted to obtain

other service work.

Lamar also explained that Snook requested that she not assume any leadership

roles in the department because she was going on leave. Lamar explained that

although Snook announced she intended to take over CSI, which is an activity under

the CMHC program, Snook never followed up with the Chair or the CMHC Program

Coordinator. Lamar stated when Weinbaum received Snook’s email about the

faculty representatives for CSI, Weinbaum forwarded the email to the CMHC

Program Coordinator and requested her to select two faculty members to serve as

the representatives. According to Lamar, Snook’s email was surprising because she

had asked to refrain from leadership positions, and Snook admitted in her deposition

7 that it would make sense not to assign her the role. Lamar also explained that serving

as a faculty advisor role to CSI is not a national service position that would be

weighed toward tenure.

Lamar stated that Snook’s service evaluation was not reviewed in 2017 due to

her Family Medical Leave Act (FMLA) leave, and Lamar accommodated Snook in

the Fall of 2017 by allowing her to teach online and receive a teaching evaluation.

Lamar explained that in Snook’s 4th Year Review, she met professional achievement

and leadership standards but did not meet the qualifications for her research. Brenda

Nichols reviewed Snook’s 4th Year Review and indicated the granting of tenure

depends upon excellence in teaching and research and scholarly activities, and

Nichols explained that Snook was encouraged to focus on a research agenda and

enhancing teaching effectiveness.

Regarding the changes to Snook’s teaching schedule, Lamar explained that

Snook requested a change in her fall schedule because she had a planned surgery in

September, and Lamar granted Snook’s accommodation request despite her contract

requiring that she teach three courses per semester. According to Lamar, the

accommodation allowed Snook to teach all her fall classes online and only required

her to teach the last two terms of the semester beginning in October 2017. It should

be noted that in her deposition, Snook acknowledged that Lamar allowed her to teach

online as an accommodation. Lamar also explained Weinbaum eliminated one of

8 Snook’s classes because she had inadvertently overscheduled Snook for the fall

semester, and the adjustment did not impact Snook’s stipend. Lamar argued that it

met all Snook’s requested accommodations, including furniture placement, schedule

modification, online classes, and not holding presentations in the auditorium. Lamar

also explained that its policy allows tenure-track faculty members to toll the tenure

clock for two years, and it granted Snook’s tolling requests.

According to Lamar, Snook failed to state a claim for conduct that violates

the TCHRA, and the trial court should dismiss her claims for want of subject-matter

jurisdiction. Lamar argued it is entitled so summary judgment on Snook’s disability

discrimination and retaliation claims because she failed to produce any evidence that

she suffered an adverse employment decision because of her disability. Lamar also

argued that Snook provided no evidence to support her accommodation claim,

because there is no evidence Lamar refused to make any requested accommodations.

Lamar further argued that Snook’s allegation that she was subjected to a hostile work

environment when her department went through the accreditation process does not

meet any element of a hostile work environment claim.

Lamar’s plea to the jurisdiction and summary judgment evidence includes: the

Declaration of Weinbaum; Lamar’s policy for Performance Evaluation of Faculty;

Snook’s 2016 Annual Review based on the modified weight distributions; Snook’s

2016 annual review report; emails from Weinbaum and Snook; Lamar’s policy

9 regarding Faculty Obligations and Workloads; Snook’s Stipends for Fall 2017; the

Declaration of Nichols; EEOC form recommending dismissal of Snook’s charge

against Lamar; Snook’s 4th Year Peer Review in 2020; Nichols’s letter to Snook

regarding her 4th Year Peer Review; and Snook’s deposition.

In her Declaration, Weinbaum explained that she conducted Snook’s 2016

review and discussed the required areas of teaching, research, and service, which in

2016 had weight distributions of 40% for teaching, 40% for research, and 20% for

service for all tenure-track faculty members. Weinbaum discussed the required areas

with Snook and described at length specific areas of concern, including the lack of

documentary evidence and duplicative publications, as well as the types of activities

and the documents supporting such activities that could warrant a strong

performance score. Weinbaum explained that it appeared Snook did not understand

the process, so she allowed Snook the opportunity to submit a revised report, but she

did not tell Snook she would receive a specific higher score for a revised report.

According to Weinbaum, she granted Snook’s request to change the weight

distributions to 50% for teaching, 30% for research, and 20% for service, as

permitted under Lamar’s policy. Snook’s new weighted score of 3.1 was passing and

allowed her to receive a merit increase. Weinbaum explained “Snook failed to meet

her goals in 2016, and Snook needed to establish a clear research agenda via peer

reviewed publications on a regular basis,” which she lacked in 2016. Weinbaum also

10 explained that all Snook’s evaluations from many Department Chairs have discussed

the need for Snook to focus on research because it is heavily weighted in the tenure

process, and Snook lacks the required research in her tenure process.

Weinbaum averred it is important that tenure-track faculty not overextend

themselves with program work at the expense of their other responsibilities and

having faculty members rotate in their program roles is not uncommon, and such

changes are especially relevant because research is more heavily weighted than

program work. According to Weinbaum, program work tends to not rise to the level

of service on the national, professional, or university/college level. Weinbaum

explained that two new Field Experience Coordinators were named to the CMHC

Program in January 2017, and it is not uncommon for faculty members to transition

in and out of program roles. According to Weinbaum, Snook’s transition out of the

Field Experience Coordinator position did not impede her ability to meet service

requirements or result in a low evaluation score on her 2016 evaluation which

included events that occurred during calendar year 2015.

Weinbaum also explained that Snook announced she was going to take over

CSI Honor Society, an activity that operates under the CMHC Program, but Snook

failed to communicate with either the Chair or the CMHC Program Coordinator

about CSI. According to Weinbaum, when she received Snook’s email inquiring

about the two faculty members for CSI, she forwarded the email to the CMHC

11 Program Coordinator and requested that the coordinator pick the CSI

representatives. Weinbaum explained that Snook’s email was surprising because

Snook had previously asked to refrain from leadership roles. Weinbaum also

explained that the Field Experience Coordinator and CSI representative are not

national service positions that would heavily weigh toward tenure and promotions.

Weinbaum recommended that Snook participate in service with professional

organizations, community, and university/college level hoping Snook would heed

her critical advice for purposes of future evaluations. Weinbaum explained that

relying upon appointments by Department Chairs is not evidence of a faculty

member’s initiative and independence which would be favorably viewed for

purposes of promotion and tenure.

Weinbaum explained that Snook was not reviewed in 2017 due to her FMLA

leave, and she accommodated Snook in Fall 2017 by allowing her to teach online

and adjusting her teaching schedule, despite her contract requirement to teach three

courses per semester. Weinbaum further explained that Snook’s adjusted schedule

did not impact her stipend, which increased by $1,500. Weinbaum averred that

Snook is still employed with Lamar and has not been denied any position or salary

increase because of her disability or for any other discriminatory purpose. According

to Weinbaum, in her 4th Year Review, Snook met the standard for professional

achievement and leadership but was found to be lacking in her research agenda.

12 Weinbaum averred that due to Snook’s request that functions not be held in

the Price auditorium, Lamar no longer holds any presentations in that auditorium.

Weinbaum stated that Snook’s requests for furniture placement have been met.

Weinbaum explained that Lamar has granted all Snook’s tolling requests to stop her

tenure clock. According to Weinbaum, she has never harbored any discriminatory

animus against Snook or acted in any spiteful manner.

In her Declaration, Nichols averred that she reviewed Snook’s 4th Year

Review and agreed with the findings of Dr. Wendy Greenidge, Snook’s Department

Chair. Nichols explained that Greenidge encouraged Snook to increase productivity

aligned with her research agenda and seek out additional service commitments.

Nichols further explained that Greenidge strongly recommended that Snook

continue to focus on enhancing teaching effectiveness and a research agenda, which

are two major factors for granting tenure. According to Nichols, she has never

harbored any discriminatory animus against Snook or acted in any spiteful manner.

In her deposition, Snook testified that Lamar hired her as a full-time assistant

professor in 2014. Snook explained that she has a doctorate in education and

supervision and is a Licensed Professional Counselor Supervisor; she usually

teaches three classes in a long semester and two classes during the summer. Snook

testified that she has cerebral palsy and underwent several surgeries to improve her

mobility. Snook explained that she has spastic diplegia, which affects both legs and

13 requires her to use a walker and wheelchair to stabilize herself when she is outside

her home. According to Snook, her condition does not typically affect her ability to

teach classes in person because the prior administration planned and offered her

accessible parking, classrooms, and other adjustments she requested, such as buttons

on the doors.

Snook explained that she began having problems in 2016, when Weinbaum

became the Interim Department Chair and Robert Spina became the Dean, because

the administration no longer considered her accommodations in advance, such as

furniture placement and building assignments with accessible parking. Snook

testified that she struggled to get things done and was embarrassed and humiliated.

Snook explained that Weinbaum knew of her disability, and she informed Spina that

she could not access certain buildings like the Price Auditorium and quit attending

functions there. Snook also explained that Kyle Mutz, the Disability Committee

Director, told her Price Auditorium was on the list of things that needed to be made

more accessible, but Lamar continued to hold events there. Snook testified when the

current administration remodeled, they did not replace the accessibility buttons

because it was not a requirement of the Americans with Disabilities Act (ADA), and

it was difficult for her to maneuver and access the bathroom without buttons.

Snook testified that she was out on FMLA from February to November of

2017 to have surgeries. Snook testified that during her recovery, she expressed to

14 the doctor it would be easier for her to work from home, so her doctor included in

the return to work a request that she work from home. After her FMLA ended, the

Dean allowed her to continue working from home, so she has not been on campus

in a full-time capacity since Fall of 2019. Snook explained that everyone was

teaching online because of COVID, but she was hired to teach in-person classes and

assumed she would return to campus when COVID restrictions eased. Snook

explained that since she has been teaching classes online through Zoom she no

longer has accessibility issues. It should be noted that Snook indicated her only

problem was not receiving the proper information and feedback regarding tenure and

promotion requirements, and “it was hard to say if it’s because of my disability[,]”

because she did not know how other people who submitted for tenure had been

treated. Snook testified that the administration discriminated against her based on

her disability in late 2015 and early 2016, but it stopped with Weinbaum because

Snook chose not to interact with the Dean about accommodations since they were

not addressed.

Snook testified that when the new Dean came in late 2015, he met with her

and talked about the things that were important to achieve tenure, which included

research. Snook testified that she has four publications and a recent submission.

According to Snook, her publications include a 2015 article from her dissertation, a

couple of book chapters in a school counseling book, three encyclopedia entries, and

15 another encyclopedia entry she recently submitted. Snook testified she is on a tenure

track to be an associate professor and goes through a yearly review process, and she

had a tenure and promotion review in her second and fourth year.

Snook testified that Weinbaum conducted her 2016 Annual Review, gave her

an initial score of 3.1, and indicated she needed to focus more on a scholarship

agenda. Snook felt it was a very unfair review and that it prompted her situation with

Lamar. Snook explained the previous administration had an awareness and

willingness to work with her to ensure that she successfully met tenure and

promotion requirements and had adjusted certain requirements such as traveling to

national and regional conferences, but Weinbaum penalized her for being unable to

do those things. Snook testified that she disagreed with Weinbaum’s evaluation and

believed Weinbaum evaluated her based on her disability because Weinbaum told

her that “she was doing things to protect me because she wanted me to focus more

on research[.]”

Regarding research, Snook testified that she understands research is

important, but she did not understand why it was important to secure external

funding. Snook explained that her department is very small, and Lamar is not a Tier

I research institute but a teaching institution, and she was hired with the

understanding that teaching was her highest priority and main focus. According to

Snook, counseling is not geared towards achieving Tier I research goals like other

16 departments, and some members of her department did not seek external funding for

research because they were more focused on teaching and service. Snook agreed that

in the annual review research is scored higher than service, and national service is

scored higher than local. Snook testified that she scored a 3.9 when Dr. Holmes

conducted her 2015 Annual Review, and he encouraged her to continue publications

in peer-reviewed journals. Snook explained it was typical to publish a minimum of

one publication per year in a journal, textbook, or encyclopedia and each are

weighted differently. Snook testified that she focused more on meeting the

publishing criteria than on where the content was published. Snook explained that

her 2016 Research Goal Achievement Timeline included having more publications

in national journals, and in 2016, she had one publication in a national journal and

one book chapter.

Snook also testified that in her 2015 Annual Review, Dr. Holmes indicated

she needed additional service at the college and university level, which is harder to

secure than the department level service her Field Experience Coordinator position

was considered. Snook explained that she was penalized for not having service at

the college and university level even though there were no available opportunities,

and she was uncertain whether others in her department were evaluated in the same

manner. Snook testified that Dr. Holmes assigned the following percentages in her

2015 annual review: 50% for teaching, 30% for research, and 20% for service. Snook

17 explained that in 2016, when Weinbaum indicated she was not using the same

percentages that Holmes used, Snook asked Weinbaum to change the percentages,

but Weinbaum used 40% for teaching, 40% for research and 20% for service.

According to Snook, Weinbaum was inconsistent because she evaluated Snook with

the new percentages, and Snook learned when she asked two others in her

department, Weinbaum evaluated one person with the new percentages and one with

the old ones. Snook estimated there were fifteen people in her department.

Regarding her 2016 Annual Review, Snook testified that Weinbaum gave her

a four on her teaching, which “is awesome,” but Snook explained she did not reach

her goal to do two peer-reviewed submissions and received a score of two. Snook

testified that she only had one submission for 2016, and because that submission had

a publication year of 2017 for the paper version, Weinbaum did not allow Snook to

count it for 2016, which left her without publications for that year. Snook explained

that prior Department Chairs had allowed them to choose which year to count the

publication, but Snook did not know if Weinbaum treated others in her department

the same. According to Snook, Weinbaum was very research oriented and believed

Snook needed to be mentored in that area, but Snook did not know if she required

others to be mentored. Snook disagreed with Weinbaum’s review that she needed a

mentor and lacked a clear research agenda. It should be noted that Snook testified

that she did not think her score of two for research was based on her disability.

18 Regarding service, Snook testified that she received credit in her 2016 Annual

Review for serving as Field Service Coordinator, because she was not removed until

after the evaluation period was over. Snook said Weinbaum removed her from her

committees after Snook disagreed with Weinbaum’s initial evaluation. Snook

explained that Weinbaum allowed her to adjust her annual review report to increase

her score, and Weinbaum changed the evaluation percentages to 50% for teaching,

30% for research, and 20% for service, which were the numbers Snook requested.

Snook testified that she complained to Holmes about Weinbaum’s review.

Snook explained that Weinbaum failed to make accommodations to her

evaluation by not giving her credit for her publication and penalized her for failing

to attend two national conferences, not having university or college level service

despite its unavailability, and not being more involved. Snook also explained that

Weinbaum removed her from service positions as Field Experience Coordinator and

CSI faculty sponsor, which Snook could easily do, and then penalized her for not

having service work. Snook testified that it was not typical to be removed from

service positions like she was.

Snook explained that she sued Lamar because she experienced

discrimination, and Lamar failed to meet some ADA requirements and subjected her

to a hostile work environment. Snook felt Weinbaum and Spina treated her unfairly

in the tenure and promotion process due to her disability because they did not make

19 the adjustments previous administrations made that allowed her to meet the

requirements. Snook testified that the administration’s lack of awareness and

sensitivity about her mobility impairment created roadblocks for her to be

successful.

Snook testified that Weinbaum retaliated against her and gave her a low score

because Snook disagreed with her review. Snook also explained that the

administration’s treatment was retaliatory and affected her pay because Weinbaum

removed her from two online classes that she had signed a contract to teach after

Snook disputed her review. Snook testified that Weinbaum’s removal of her service

positions indirectly impacted her tenure and promotion because not having those

positions lowers her yearly review’s evaluation score, but Snook had not been denied

tenure because she had not been through that process. Snook explained that she had

not applied for any other committees because shortly after she was removed, she

went on FMLA leave. It should be noted that Snook also testified that in Fall 2016

she told Weinbaum she would be unable to take leadership roles because she would

be on FMLA leave in 2017 from February to November. Snook testified that she

was removed as the CSI chapter advisor in October 2017 when she was on leave,

and it made sense for Weinbaum to put somebody else in her place. According to

Snook, the chapter advisor was a national leadership role that was going to be

appointed, and her request not to be assigned leadership roles only pertained to

20 department or university leadership roles. Snook explained that after Weinbaum

asked her to be one of the two chapter advisors, Weinbaum asked Greenidge to

appoint the two CSI representatives, which did not include Snook.

Snook testified that she did not have a 2017 Annual Review because she was

on FMLA leave. Snook explained that she submitted the information for her 2019

Annual Review to her previous Department Chair, Greenidge. Snook explained that

in her 2019 Annual Review, she received a score of 3.9 but she was only evaluated

based on her teaching because she had been out on FMLA leave. According to

Snook, in her 4th Year Review in 2020, she submitted four peer-reviewed

publications, and Greenidge encouraged her to increase productivity aligned with

her research agenda and seek additional service commitments. The 4th Year Review

indicated that Snook needed more focus on her research agenda plus one more

national publication, and the standard for scholarly production/research proficiency

required three entry items per year. Snook testified that the revised standards were

not the tenure and promotion requirements that she was hired under. Snook

confirmed that she received a letter from Nichols indicating her agreement with

Snook’s 4th Year Review, explaining the granting of tenure is dependent upon

excellence in teaching and research and scholarly activities, and recommending

Snook continue to focus on enhancing teaching effectiveness and a research agenda.

Snook further testified that she did not understand what is meant by a research

21 agenda or why her research focus does not meet Lamar’s requirements, and she has

not been provided an opportunity to receive clarification.

According to Snook, she had not received a promotion at Lamar because she

had not met the designated requirements for advancement to associate professor. It

should be noted that Snook further testified that the administration’s treatment had

not affected her raises. Snook explained that she had received four merit pay raises

since 2015 and had also received recognition for her work with students with

disabilities from Lamar and for her research from the National Women’s Institute.

Snook testified that she planned to apply for tenure in 2021 to 2022. Snook said

Lamar tolled the clock on her tenure for two years because of her FMLA leave.

Regarding her hostile work environment claim, Snook testified that her claim

concerns the accreditation process for a counseling and training clinic on campus.

Snook explained that Spina did not support the accreditation process and tried to

take it away from their department; he also put their department on audit because he

felt the clinic was being used for personal gain. Snook testified that the

administration closed the clinic, continued the audit for a few years, and found the

department had violated department and university policies. According to Snook,

approximately twenty faculty members left the department because of the

administration’s treatment, and the department eventually received the accreditation

but lost it due to the lack of administrative support. Snook explained that her claim

22 includes the administration’s negative treatment, the audit, and the loss of the clinic,

which hurt her department professionally and reduced enrollment. It should be noted

that Snook testified that her claim was not based on her disability because the

administration treated the whole department badly, but it did include the

administration ignoring her requests.

Snook filed a Response In Opposition to Lamar University’s Plea to the

Jurisdiction and Motion for Summary Judgment and Brief in Support. According to

Snook, she established a prima facie case of disability discrimination, hostile work

environment, and retaliation, and material facts exist showing an “organized scheme

created to cause [her] to suffer an unfavorable recommendation for tenure and

promotion.” Snook argued that Lamar condoned Weinbaum’s unfavorable treatment

and discriminatory actions, which interfered with her ability to succeed in her tenure-

track position. According to Snook, by removing her from her service positions and

giving her a low evaluation score in 2016, Weinbaum adversely affected her tenure-

track status. Snook argued her low annual reviews were created as a pretext to cover

Lamar’s discriminatory and retaliatory motives. Snook further argued that Lamar

failed to provide her with reasonable accommodations and treated her differently

than her similarly situated peers by depriving her of the opportunity to discuss her

4th Year Review as required by Lamar’s policy. Snook explained that she believed

Lamar would deny her tenure and promotion based on her disability and in retaliation

23 for engaging in protected activity, which included filing an internal complaint in

2014 and an EEOC charge in 2018. Snook maintained that Lamar’s Plea to the

Jurisdiction and Motion for Summary Judgment should be denied because she has

alleged sufficient facts to affirmatively demonstrate the trial court’s subject matter

jurisdiction and a waiver of Lamar’s immunity due to violations of the TCHRA, and

her evidence shows genuine issues of material fact exist that necessitate her claims

progressing to a trial on the merits. Snook attached, among other documents, the

following evidence to her response: her deposition testimony; affidavit of Donna

Sheperis; affidavit of Randy Davis; affidavit of Robin Latimer; affidavit of Sedef

Smith; Lamar’s Policy for Performance Evaluation of Faculty; August 2016 Memo

regarding Snook’s Two Year Peer Review; Snook’s 2015 Annual Review; Snook’s

2016 Annual Review; Snook’s April 2017 email requesting Weinbaum evaluate her

2016 performance utilizing her requested percentage rates; Snook’s 4th Year

Review; Nichols’s September 2020 letter concurring with Snook’s 4th Year Review;

October 2017 emails regarding the appointment of Chapter Faculty Advisors (CFAs)

for CSI; January 2020 letter awarding Snook graduate faculty membership; and the

EEOC’s Dismissal and Notice of Rights of Snook’s 2018 Charge of Discrimination

against Lamar.

Lamar filed a Reply in Support of its Plea to the Jurisdiction & Motion for

Summary Judgment. Lamar objected to the affidavits Snook included with her

24 response, arguing they were irrelevant to Snook’s claims and contained hearsay and

expert opinions. Lamar argued that it demonstrated, as a matter of law, the trial court

lacks jurisdiction because sovereign immunity bars Snook’s claims, and Snook

failed to establish a prima facie case for any of her claims. Lamar further argued that

it demonstrated, as a matter of law, that Snook cannot maintain a lawsuit under the

TCHRA. According to Lamar, the affidavits Snook submitted as evidence show the

affiants alleged a hostile work environment based on their own experiences, and

their allegations do not demonstrate that Snook was subjected to a hostile work

environment because of her disability. Lamar argues that Snook offered no evidence

in support of any elements of her claims for discrimination, retaliation, failure to

accommodate, and hostile work environment, and she failed to show Lamar took

any adverse action against her or that she had not received promotion or tenure.

Lamar explained that in her deposition, Snook testified she believed her poor

evaluation was because Weinbaum disagreed with her research agenda, and she did

not believe her removal from her service position was due to her disability. Lamar

further argued that Snook’s argument regarding tenure is based on her speculation

that she may not receive tenure in the future. Concerning Snook’s claim for failure

to accommodate, Lamar argued that Snook failed to provide evidence showing she

requested accommodations and that they were denied.

25 The trial court conducted a hearing on Lamar’s Plea to the Jurisdiction and

Motion for Summary Judgment. Lamar’s counsel argued that Snook disagreed with

her 2016 evaluation and that she lacked a research agenda, and Snook believed

Lamar retaliated against her by removing her from her service positions. Lamar’s

counsel argued that Snook alleged Lamar failed to accommodate her by having

classrooms or events in the auditorium, and that her department’s accreditation

process subjected her to a hostile work environment. Lamar’s counsel also

contended that Snook failed to present a prima facie case of discrimination and

retaliation because she did not present any evidence that she suffered an adverse

employment action, because she is still employed, has received all promotions she

was entitled to and has not been denied tenure. Lamar’s counsel further argued

Snook presented no evidence that Lamar denied her any requested accommodations,

nor does she claim that she was subjected to a hostile work environment due to her

disability. According to Lamar’s counsel, the local service positions are rotated

between faculty members, Lamar removed Snook from CSI when she was out on

FMLA leave, and tenure requires national service positions, which she never applied

for.

Snook’s counsel asserted that she was subjected to adverse employment

decisions when Lamar removed her from service positions, which impacted her

ability to succeed in her tenure-track position and build a dossier for when she

26 applies for promotion of tenure. Regarding accommodations, Snook’s counsel

argued that not being able to attend required events in the auditorium affected her

annual review. According to Snook’s counsel, she was subjected to a hostile work

environment because Lamar treated her differently and failed to accommodate her.

Lamar’s counsel explained that Snook had requested FMLA before she was removed

from her position, and Snook also requested that local service positions fulfill her

obligation to have a national position because it was a hardship for her to travel.

After hearing the parties’ arguments, the trial court denied Lamar’s Plea to the

Jurisdiction and Motion for Summary Judgment without issuing findings of fact and

conclusions of law. Regarding the plea, the trial court found that the allegations

raised in the pleadings regarding employment discrimination and hostile work

environment are sufficient to establish a waiver of sovereign immunity.

The trial court also found there was at least enough evidence that there is some

degree of disputed facts on one or more elements of the causes of action and at least

a scintilla of evidence as to the claims to deny summary judgment.

PLEAS TO THE JURISDICTION IN TCHRA CLAIMS

Governmental units, such as Lamar, are generally immune from suit. See San

Antonio Water Sys. v. Nicholas, 461 S.W.3d 131, 135 (Tex. 2015); see also Prairie

View A&M Univ. v. Chatha, 381 S.W.3d 500, 512 (Tex. 2012). The waiver extends

to “only . . . those suits where the plaintiff actually alleges a violation of the TCHRA

27 by pleading facts that state a claim thereunder.” Mission Consol. Indep. Sch. Dist. v.

Garcia, 372 S.W.3d 629, 636 (Tex. 2012). Absent a pleading that sets forth a prima

facie case, the governmental unit’s immunity from suit has not been waived. Id. at

637.

A governmental unit may challenge the existence of a prima facie case

through a plea to the jurisdiction. Miranda, 133 S.W.3d at 226 (noting use of a plea

to the jurisdiction and how it mirrors a summary judgment). A governmental unit

may also raise the issue in a motion for summary judgment. See Town of Shady

Shores v. Swanson, 590 S.W.3d 544, 550–52 (Tex. 2019) (permitting no evidence

motion for summary judgment); State v. Lueck, 290 S.W.3d 876, 884 (Tex. 2009)

(permitting traditional motion for summary judgment). We review de novo a trial

court’s disposition of a plea to the jurisdiction. See Miranda, 133 S.W.3d at 226,

228. First, we focus on the plaintiff’s petition to determine whether the facts

affirmatively pleaded demonstrate that subject matter jurisdiction exists. See id. at

226. We construe the pleadings liberally in favor of the plaintiff. See id. If the

plaintiff has not affirmatively pleaded facts to support the trial court’s jurisdiction,

the issue is one of pleading sufficiency, and the trial court should provide the plaintiff

the opportunity to amend the pleading to cure any jurisdictional defects. Id. at 226–

27. However, if the pleadings affirmatively negate the existence of jurisdiction, the

28 trial court may grant the plea to the jurisdiction without allowing the plaintiff the

opportunity to amend. Id. at 227.

If a plea to the jurisdiction challenges the existence of jurisdictional facts, the

trial court may consider relevant evidence and is required to do so when necessary

to resolve the jurisdictional issue raised. Id. When evidence is submitted that

implicates the merits of the case, the trial court reviews the relevant evidence to

determine whether a fact issue exists, and if the evidence creates a fact question

regarding jurisdiction, the trial court cannot grant the plea to the jurisdiction. Id. at

227–28. If the relevant evidence fails to raise a fact issue, then the trial court can rule

on the plea as a matter of law. Id. at 228. This standard of review generally mirrors

the summary judgment standard under Texas Rule of Civil Procedure 166a(c), as it

places the burden on the governmental unit to present evidence to demonstrate that

the trial court lacks subject matter jurisdiction. Id.; see also Tex. R. Civ. P. 166a(c).

If the governmental unit meets its initial burden, the burden then shifts to the

plaintiff to show that a disputed material fact exists regarding the jurisdictional issue.

Miranda, 133 S.W.3d at 228. We take as true all evidence that is favorable to the

plaintiff and indulge every reasonable inference and resolve any doubts in the

plaintiff’s favor. Id. If the evidence creates a fact question regarding the

jurisdictional issue, the trial court cannot grant the plea because fact questions must

be resolved by the finder of fact. Id.

29 We review summary judgment orders de novo. Provident Life & Accident Ins.

Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003). In resolving Lamar’s issues, we must

consider the ruling on the no-evidence part of Lamar’s hybrid motion for summary

judgment before considering the ruling on the traditional portion of Lamar’s motion.

See Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004). In reviewing a

no-evidence motion, we must view the evidence in the light most favorable to the

non-movant. Id. at 601. The Texas Supreme Court has explained that the trial court

must grant a no-evidence motion if (1) there is a complete absence of evidence of a

vital fact, (2) the court is barred by rules of law or of evidence from giving weight

to the only evidence offered to prove a vital fact, (3) the evidence offered to prove a

vital fact is no more than a mere scintilla, or (4) the evidence conclusively

established the opposite of the vital fact. King Ranch, Inc. v. Chapman, 118 S.W.3d

742, 751 (Tex. 2003) (citations omitted). “A genuine issue of material fact exists if

more than a scintilla of evidence establishing the existence of the challenged element

is produced.” Ridgway, 135 S.W.3d at 600 (citing Morgan v. Anthony, 27 S.W.3d

928, 929 (Tex. 2000)). “When the evidence offered to prove a vital fact is so weak

as to do no more than create a mere surmise or suspicion of its existence, the

evidence is no more than a scintilla and, in legal effect, is no evidence. Kindred v.

Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983) (citations omitted).

30 ANALYSIS

HOSTILE WORK ENVIRONMENT

In issue one, Lamar argues Snook failed to raise a genuine, material fact issue

regarding whether she was subjected to a hostile work environment due to her

disability because (1) her hostile work environment allegations, which were based

on Lamar’s audit of her department, are not sufficiently extreme to affect a term or

condition of her employment, and (2) she admits that any hostile work environment

she experienced at Lamar was unrelated to her disability. Snook contends that not

only was her environment hostile due to the accreditation process, the daily nature

of the events that transpired–including Lamar’s failure to accommodate, her removal

from service positions, the limited communication regarding her 4th Year Review,

the disparate treatment based on her disability, and her complaint against Weinbaum

and Spina–detracted her from her job performance and kept her from advancing in

her career. Snook asserts that Weinbaum’s and Spina’s actions and inactions created

a severe and pervasive environment that failed to include the resources to maintain

tenure and promotion and ultimately affected the terms, conditions, and privileges

of her employment.

The elements of a prima facie case of hostile work environment are: (1) the

employee belongs to a protected class; (2) the employee was subjected to unwelcome

harassment; (3) the harassment was based on the protected characteristic; (4) the

31 harassment complained of affected a term, condition, or privilege of employment;

and (5) the employer knew or should have known of the harassment in question and

failed to take prompt remedial action. Anderson v. Hous. Cmty. College Sys., 458

S.W.3d 633, 646 (Tex. App.—Houston [1st Dist.] 2015, no pet.). In determining

whether a hostile work environment exists, courts look to all the circumstances,

including the frequency of the discriminatory conduct and whether it unreasonably

interfered with the employee’s work performance. Waffle House, Inc. v. Williams,

313 S.W.3d 796, 806 (Tex. 2010). To succeed on a hostile work environment claim,

the plaintiff must show ongoing harassment based on the protected characteristic

that was so sufficiently severe or pervasive that it altered the conditions of her

employment and created an abusive work environment. Anderson, 458 S.W.3d at

647; Bartosh v. Sam Houston State Univ., 259 S.W.3d 317, 324 (Tex. App.—

Texarkana 2008, pet. denied). “To satisfy the fourth element of a hostile work

environment claim, a plaintiff must show that the workplace was permeated with

discriminatory intimidation, ridicule, and insult sufficiently severe or pervasive to

create a hostile or abusive working environment.” Donaldson v. Tex. Dep’t of Aging

and Disability Servs., 495 S.W.3d 421, 445 (Tex. App.—Houston [1st Dist.] 2016,

pet. denied) (citations omitted). The work environment must be one that a reasonable

person would find hostile or abusive and one that the victim perceived as such. Id.

(citation omitted).

32 We first address whether there is more than a scintilla of evidence that Snook

was subjected to unwelcome harassment based on her disability. In her live pleading,

Snook merely states that “the conduct described herein created a hostile work

environment under Texas law.” The record shows that Snook testified her hostile

work environment claim concerned the accreditation process for a counseling and

training clinic on campus. Snook explained that Spina did not support the

accreditation process and tried to take it away from their department, and he put their

department on audit because he felt the clinic was being used for personal gain.

Snook testified that the administration closed the clinic, continued the audit for a

few years, and found the department had violated department and university policies.

According to Snook, approximately twenty department faculty members left because

of the administration’s treatment, and the department eventually received the

accreditation but lost it due to the lack of administrative support. Snook explained

that her claim includes the administration’s negative treatment, the audit, and the

loss of the clinic, which hurt her department professionally and reduced enrollment.

Snook testified that her claim was not based on her disability because the

administration treated the whole department badly, but it included the administration

ignoring her requests.

The affidavits Snook submitted to support her hostile work environment claim

show that the other faculty members in her department were subjected to the same

33 treatment as Snook during the accreditation and annual review process. In her

affidavit, Sheperis explained that Spina did not support accreditation, and the whole

department was shaken up when Spina wanted to change the manner of evaluations

because he thought the department’s scores were too high across the board. Sheperis

averred that the 2016 evaluations were not based on the previous rubric used for

evaluations, and after challenging her evaluation, she was placed where she was the

previous year. Sheperis further averred that she and other faculty members were

concerned Spina would sabotage their tenure. Sheperis explained that, like other

faculty members, she met with Spina to discuss tenure requirements, and

“[e]verything he said was by the book in terms of what is required.” Sheperis also

explained that Spina told her she was removed from her service position because of

the audit, and Sheperis believed that her research was halted by the audit. Sheperis

averred that the department lost accreditation due to Spina’s lack of leadership.

Davis explained that in Fall 2015, Spina and Provost Marquart audited the

department’s clinic operations, and in Spring 2016, Spina suspended the clinic’s

operations and “held the specter of criminal wrongdoing over the department.” Davis

also explained that in Spring and Summer of 2016, Spina and Marquart wanted to

withdraw the department’s accreditation application, but the department was

awarded an accreditation. Davis averred that when Weinbaum was named as Interim

Department Chair in Fall 2016, she created an increasingly negative and hostile

34 environment, disparaging the program and the work of the clinical faculty. Davis

further averred that Weinbaum dismissed him as the accreditation liaison and

program coordinator, and he resigned as the principal investigator of a federal grant

and from Lamar because of Weinbaum’s harassment and the toxic/hostile

environment. Davis explained that being removed from his positions made it

difficult or nearly impossible to meet his service requirements for tenure. According

to Davis, the audit and threats associated with potential results were used to

intimidate the faculty and besmirch the faculty’s reputations. Davis explained that

Weinbaum targeted faculty members who had worked closely with Sheperis, and

Weinbaum, Spina, and Marquart wanted to dismantle the program because of their

personal vendetta against Sheperis. Davis also explained that he believed Weinbaum

had a personal axe to grind against him.

Regarding Snook, Davis averred that Weinbaum removed Snook as the Field

Experience Coordinator, a position which she held for two years and which was her

main outlet for service to the department. Davis further averred that Weinbaum

removed Snook from her other service position, blocking her outlets of service and

making it impossible to meet tenure requirements. Davis explained that Weinbaum

scheduled a group photo twice in locations that were inaccessible to an individual

with a disability, and Spina scheduled at least two events in a building that was

35 inaccessible. According to Davis, Weinbaum’s and Spina’s acts were an attempt to

target, demoralize, and embarrass Snook.

Latimer averred that Snook and Davis told her they felt they were being

mistreated by the same supervisor in their department. According to Latimer, the

general morale of their department fell quickly after Spina and Marquart were hired,

and that demoralization appeared to be continuing. Smith averred that she resigned

from Lamar in August 2016 due to the toxic environment Spina created. According

to Smith, her 2015 Annual Review was conducted by Dr. Bill Holmes, and he

arbitrarily evaluated her performance and failed to use a rubric or account for her

FMLA maternity leave. Smith explained that she questioned Holmes about her

evaluation, and he told her he followed Spina’s directions. Smith explained that

when she asked Spina about her evaluation, he exhibited hostile behavior toward

her, and Smith reported Spina to Lamar’s Human Resources for yelling at her in the

hallway. According to Smith, after she appealed her 2015 Annual Review, Spina

increased her performance score. Smith averred that she resigned from Lamar

because she was psychologically impacted by Spina’s treatment and did want him

to deny her tenure.

We hold that Snook’s claims regarding the administration’s negative

treatment, the audit, and the loss of the clinic do not amount to ongoing harassment

based on her disability. See Anderson, 458 S.W.3d at 647; Bartosh, 259 S.W.3d at

36 324. Snook also maintains that her hostile work environment claim includes the

administration ignoring her requests. The record shows that Snook testified that

Weinbaum and Spina did not consider her accommodations in advance like the past

administrations, so she chose not to interact with the Dean about accommodations.

Snook explained that with assistance she was able to attend a few functions at Price

Auditorium, but she quit attending functions there because she had trouble getting

around the building. Snook also explained that she told Weinbaum Price Auditorium

was inaccessible, and when Lamar offered her a special chair to attend convocation,

Snook chose not to attend.

To the extent that Weinbaum and Spina scheduled four events at an

inaccessible location, those four instances do not amount to ongoing harassment that

was so sufficiently severe or pervasive that it altered the conditions of her

employment and created an abusive work environment. See Anderson, 458 S.W.3d

at 647; Bartosh, 259 S.W.3d at 324. Moreover, Snook testified that Weinbaum

moved the location of the photo after Snook made a request, but according to Snook,

“the fact that I even had to say that to begin with was . . . the problem.” Snook

testified different things were not taken into consideration in advance, and

Weinbaum just lacked an awareness.

Snook also testified that during a one-week period she temporarily taught in

another building and did not have a gate pass, and after the week was over, she told

37 Weinbaum she would never teach in that building again because it was too difficult

to park. Snook testified that she could access the bathrooms without buttons, but it

was difficult to maneuver. Snook further testified there was one occasion where they

had to arrange tables and chairs so could access a classroom, and she tripped on

wires and fell in front of the students. According to Snook, “different things like this

are not taken into consideration in advance,” and Weinbaum has always been aware

of her disability.

Snook also testified that after her FMLA leave, the Dean allowed her to work

from home, and since she has been teaching classes online, she no longer has

accessibility issues. The record shows that Lamar accommodated Snook by allowing

her to adjust her annual review report, granting her request to change the weight

distributions in her annual review, allowing her to teach online despite her contract

obligations, adjusting her teaching schedule, granting Snook’s request to not hold

functions in Price Auditorium, granting Snook’s request for furniture placement, and

tolling her tenure clock. We hold that Snook’s complaints about Lamar’s failure to

accommodate do not amount to the quality or severity of misbehavior sufficient to

subject Snook to ongoing harassment based on her disability that was so sufficiently

severe or pervasive that it altered the conditions of her employment and created an

abusive work environment. See Waffle House, Inc., 313 S.W.3d at 806. We conclude

that Snook’s evidence regarding her hostile work environment claim is no more than

38 a scintilla and, in legal effect, is no evidence. See Kindred, 650 S.W.2d at 63.

Accordingly, the trial court erred by denying Lamar’s no-evidence motion for

summary judgment on Snook’s hostile work environment claim. We sustain issue

one.

FAILURE TO ACCOMODATE

In issue two, Lamar argues Snook failed to raise a genuine, material fact issue

regarding her failure to accommodate claim where she admits Lamar granted her

requested accommodations and that her inability to access facilities was due to her

failure to engage in the interactive process.

The TCHRA 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,” unless the employer can demonstrate the accommodation would impose

an undue hardship. Tex. Lab. Code Ann. § 21.128(a). To establish a failure to

accommodate claim, a plaintiff must show: (1) she is an individual with a disability;

(2) the employer had notice of the disability; (3) with reasonable accommodations

she could perform the essential functions of her position; and (4) the employer

refused to make such accommodations. Datar v. Nat’l Oilwell Varco, L.P., 518

S.W.3d 467, 474 (Tex. App.—Houston [1st Dist.] 2017, pet. denied) (citation

omitted). The plaintiff has the burden to request reasonable accommodations. See

39 LeBlanc v. Lamar State College, 232 S.W.3d 294, 300 (Tex. App.—Beaumont 2007,

no pet.). For a discriminatory employment claim based on failure to accommodate,

damages may not be awarded if the employer demonstrates it used good faith efforts,

in consultation with the otherwise qualified employee with a disability who has

informed the employer of the needed accommodation, to identify and make

reasonable workplace accommodations that provide the employee with an equally

effective opportunity and would not cause undue hardship on the business’s

operation. Tex. Lab. Code Ann. § 21.128(c).

Once an employee presents a request for an accommodation, the employer is

required to engage in an interactive process and have a meaningful dialogue with the

employee so together they can determine what reasonable accommodations might

be available. E.E.O.C. v. Chevron Phillips Chemical Co., L.P., 570 F.3d 606, 621–

22 (5th Cir. 2009). The ADA provides a right to reasonable accommodations, not

the employee’s preferred accommodation. Hagood v. Cty. of El Paso, 408 S.W.3d

515, 525 (Tex. App.—El Paso 2013, no pet.). An employer violates the ADA when

it fails to engage in a good faith interactive process. Id. However, when the employee

is responsible for the breakdown of the interactive process, the employer has not

violated the ADA. See id.

The record shows Snook chose not to engage in the interactive process with

the new administration about which she complains. According to Snook, Weinbaum,

40 Spina, and Marquart did not consider her accessibility in advance like prior

administrations had done, and sometimes things were done on the spot, which made

her uncomfortable. Snook explained that things did not occur as easily or readily

under Weinbaum and Spina. Snook testified that she was hired under a different

administration and during her hiring process, she discussed her disability at length,

but that was no longer the case. Snook testified that she chose to quit attending

functions at Price Auditorium and refused an accommodation that Lamar had

offered. Snook explained that in one instance, she did not tell Weinbaum about her

accessibility issues until after she finished teaching in a temporary building for one

week, and she never had to teach in that building again. Snook also testified that she

quit mentioning her accessibility issues. According to Snook, after Lamar told her

accessibility buttons were not an ADA requirement, she just “stopped addressing

things like that at that point. I just didn’t even talk about it anymore.” Snook testified

that after her FMLA leave, the Dean allowed her to continue working from home

and teaching online, so she no longer has accessibility issues.

Snook’s testimony shows that she chose not to engage in a good faith

interactive process with the new administration about her accessibility issues. See

id. Since Snook was responsible for the breakdown of the interactive process, Lamar

did not violate the ADA for not providing reasonable accommodations that Snook

failed to request. See id. at 525. The record shows that Lamar provided Snook

41 reasonable accommodations, but Snook felt some of those accommodations were

not readily provided in advance. Snook had the burden to request reasonable

accommodations, and she cannot just expect Lamar to have “extra-sensory

perception” about an accommodation. See LeBlanc, 232 S.W.3d at 300 (citations

omitted). Importantly, other than Snook’s unsupported assertions, there is no

evidence in the record showing that Lamar violated the TCHRA by denying Snook

a reasonable accommodation and construing the facts in the light most favorable to

Snook does not require us to credit otherwise unsupported assertions. See Burch v.

City of Nacogdoches, 174 F.3d 615, 621 n.11 (5th Cir. 1999).

Based on the record, we hold there is no evidence Lamar refused to make

reasonable accommodations so Snook could perform the essential functions of her

position. See Tex. Lab. Code Ann. § 21.128(a); Datar, 518 S.W.3d at 474; LeBlanc,

232 S.W.3d at 302. We conclude that Snook’s evidence regarding her failure to

accommodate claim is no more than a scintilla and, in legal effect, is no evidence.

See Kindred, 650 S.W.2d at 63. Accordingly, the trial court erred by denying

Lamar’s no-evidence motion for summary judgment on Snook’s failure to

accommodate claim. We sustain issue two.

UNLAWFUL DISABILITY DISCRIMINATION/DISPARATE TREATMENT

In issue three, Lamar argues Snook failed to establish prima facie disparate

treatment claim because she cannot establish a prima facie claim of disability

42 discrimination; Snook has no evidence that Lamar took any adverse treatment

against her; and she failed to identify a similarly situated non-disabled comparator

who was treated better than her or identify any other evidence suggesting Lamar’s

actions were based on discrimination.

Snook brought a disability discrimination case under the TCHRA alleging

claims for unlawful discrimination and disparate treatment. To establish unlawful

discrimination, a plaintiff can rely on direct evidence of “what the defendant did and

said” or on circumstantial evidence. Tex. Tech Univ. Health Sci. Ctr.-El Paso v.

Flores, 612 S.W.3d 299, 305 (Tex. 2020); Garcia, 372 S.W.3d at 634. When a

plaintiff relies on circumstantial evidence to establish an unlawful discrimination

claim, we follow the burden-shifting framework established in McDonnell Douglas

Corp. v. Green, 411 U.S. 792 (1973). See Flores, 612 S.W.3d at 305. Under the

McDonnell Douglas framework: (1) the plaintiff must create a presumption of illegal

discrimination by establishing a prima facie case; (2) the defendant must rebut that

presumption by establishing a legitimate, nondiscriminatory reason for its

employment action; and (3) the plaintiff must overcome the rebuttal evidence by

establishing the defendant’s stated reason is a mere pretext. See McDonnell, 411

U.S. at 802–04, 807.

Under the TCHRA, and employer commits an “unlawful employment

practice” if, because of the employee’s disability, the employer “discharged an

43 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 Ann. § 21.051; see Flores, 612 S.W.3d at 304. One purpose of the TCHRA is

to provide for the execution of the policies embodied in Title I of the ADA and the

subsequent amendments. Tex. Lab. Code Ann. § 21.001(3) (citation omitted). Under

both the TCHRA and ADA, to establish a prima facie disability discrimination case

in the employment context the plaintiff must show: (1) she has a disability; (2) she

is qualified for the job; and (3) she suffered an adverse employment decision because

of her disability. See El Paso Cty. v. Vasquez, 508 S.W.3d 626, 639 (Tex. App.—El

Paso 2016, pet. denied) (citation omitted). Generally, an employer commits an

unlawful practice because of an employee’s disability if the employee’s disability

was a motivating factor for the unlawful practice, despite whether other factors also

motivated the practice. Flores, 612 S.W.3d at 305 (citation omitted).

Based on our review of the record, Snook failed to establish prima facie

disability discrimination case as she failed to show that she suffered an adverse

employment decision because of her disability. See Vasquez, 508 S.W.3d at 639.

First, we note that Snook has not been denied tenure, so any arguments regarding

her inability to meet tenure requirements are not ripe. Secondly, the record shows

that Snook is still employed with Lamar and has not been denied any position or

salary increase. Snook testified that the administration’s treatment had not affected

44 her raises, and Weinbaum averred that Snook’s adjusted schedule had no impact on

her stipend.

Additionally, Snook’s 2016 Annual Review shows that Snook had adequate

performance and merit, which was satisfactory, but Snook failed to meet her journal

article publication goal and show a clear research agenda. Snook testified that she

did not think her score of two for research in her 2016 Annual Review was based on

her disability. The record shows that Snook’s 2015 Annual Review, 2nd Year Peer

Review conducted in 2016, and 4th Year Review conducted in 2020, all mentioned

that Snook needed to continue developing her research agenda.

Regarding the removal from her service positions, the record shows that

Weinbaum granted Snook’s request to not be assigned leadership positions because

she was going on FMLA leave. Snook testified that it made sense for Weinbaum to

put somebody else in her place as the CSI chapter advisor when she was on FMLA

leave. Additionally, Snook did not present any evidence showing that Weinbaum

removed her as Field Experience Coordinator because of her disability. Instead, the

record shows that Weinbaum encouraged Snook to participate in service with

professional organizations, community, and at the university and college level,

which would weigh more towards tenure. The record shows that Snook’s 2015

Annual Review and 2nd Year Peer Review also noted that she needed to seek out

service work at the college and university level.

45 We conclude there is no evidence that Snook suffered an adverse employment

action because of her disability. See Vasquez, 508 S.W.3d at 639. We further

conclude that Snook’s evidence regarding her disability discrimination claim is no

more than a scintilla and, in legal effect, is no evidence. See Kindred, 650 S.W.2d at

63. Accordingly, the trial court erred by denying Lamar’s no-evidence motion for

summary judgment on Snook’s disability discrimination claim.

To prove a prima facie case of disparate treatment, the plaintiff must show

that she was treated less favorably than “similarly situated” non-protected class

members. See Ysleta Ind. Sch. Dist. v. Monarrez, 177 S.W.3d 915, 917 (Tex. 2005).

Employees are similarly situated if their circumstances are comparable in all

material respects, which include similar standards, supervisors, and conduct. Id.

(citations omitted). Snook had to provide more than a scintilla of evidence that others

who were similarly situated but not in the same protected class as Snook were treated

more favorably. See Tex. Lab. Code Ann. § 21.051. The similarly situated

employees must be “nearly identical,” and “[e]mployees with different

responsibilities, supervisors, capabilities, work rule violations, or disciplinary

records are not considered to be ‘nearly identical.’” Flores, 612 S.W.3d at 312

(citations omitted).

To establish the fourth element, Snook was required to identify a similarly

situated “comparator employee,” which Snook failed to do in her live pleading or in

46 her summary judgment response. Snook’s summary judgment evidence includes

affidavits of other faculty members in her department. To the extent that Snook

alleges that those faculty members are “similarly situated” non-protected class

members, we hold that those affidavits do not show that she was treated less

favorably than those “similarly situated” non-protected class members. See

Monarrez, 177 S.W.3d at 917. We conclude there is no evidence showing that Snook

was treated less favorably than “similarly situated” non-protected class members.

Accordingly, the trial court erred by denying Lamar’s no-evidence motion for

summary judgment on Snook’s disparate treatment claim. We overrule issue three.

RETALIATION

In issue four, Lamar argues Snook cannot establish a prima facie retaliation

claim because Snook’s accommodation requests do not constitute protected activity

under the TCHRA, Snook failed to show Lamar took any materially adverse action

against her after she filed a charge of discrimination in February 2018, and even if

Snook had evidence of a materially adverse action, she cannot create a fact issue

with respect to causation. Snook counters that she presented sufficient evidence

establishing she suffered a materially adverse action, including (1) her low annual

evaluation, (2) Lamar’s departure from procedural regularities, (3) her removal from

service positions, and (4) Lamar’s lack of communication. According to Snook,

these actions deprived her of obtaining promotion and tenure.

47 Under the TCHRA, an employer commits an unlawful employment practice

if it retaliates or discriminates against a person who, pursuant to the TCHRA, (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. Tex. Lab. Code Ann. § 21.055. To make a prima facie showing of

retaliation, a plaintiff must show that (1) she engaged in a protected activity, (2) an

adverse employment action occurred, and (3) there was a causal link between the

protected activity and the adverse action. Pineda v. United Parcel Serv., Inc., 360

F.3d 483, 487 (5th Cir. 2004); Dias v. Goodman Mfg., Co., L.P., 214 S.W.3d 672,

676 (Tex. App.—Houston [14th Dist.] 2007, pet. denied). The employee must

establish that absent her protected activity, the adverse employment action would

not have occurred when it did. Donaldson v. Tex. Dep’t of Aging and Disability

Servs., 495 S.W.3d 421, 441 (Tex. App.—Houston [1st Dist.] 2016, pet. denied).

The employee need not establish that the protected activity was the sole cause of the

employment action. Id. (citation omitted). The individual is only protected from

actions that a reasonable employee would have found to be materially adverse,

meaning those actions that are likely to deter victims of discrimination from

complaining to the EEOC, the courts, and their employer. Id. (citations omitted).

In her live pleading, Snook alleged that Lamar retaliated against her for

complaining about disability discrimination by giving her poor performance reviews

48 and removing her from her service roles and courses, depriving her of the ability to

fulfill tenure and promotions service requirements, professional development, career

enhancements, and wages. The record shows that in February 2017, Snook

complained that Weinbaum’s 2016 Annual Review failed to consider her physical

limitations in terms of service and research requirements, and in 2018, Snook filed

a discrimination charge with the Texas Workforce Commission and the EEOC.

First, we note that Snook’s 2016 Annual Review was completed before Snook

made any complaints regarding disability discrimination, so there was no causal

connection between her protected activity and the score Weinbaum gave her. See

Donaldson, 495 S.W.3d at 441. Moreover, after Snook complained about her low

score, Weinbaum allowed Snook to submit a revised report and granted Snook’s

request to change the weight distributions. The record shows that in Fall of 2017,

Weinbaum accommodated Snook by allowing her to teach online and adjusting her

teaching schedule because she was on FMLA leave. Further, Snook’s adjusted

schedule had no impact on her stipend.

The record shows that Lamar granted Snook’s tolling requests to stop her

tenure clock, and Snook had not been promoted to associate professor because she

had not yet applied for tenure. Snook testified that since 2015, she had received four

merit pay raises, and the administration’s treatment had not affected her raises.

Weinbaum averred that Snook is still employed with Lamar and has not been denied

49 any position or salary increase because of her disability or for any other

discriminatory purpose. Regarding the removal from her service positions, we have

already explained that Snook requested not to be assigned leadership positions

because she was going on FMLA leave. Snook testified that she was removed as the

CSI chapter advisor when she was on FMLA leave, and that it made sense for

Weinbaum to put somebody else in her place. The record also shows that Snook’s

transition out of the Field Experience Coordinator position did not impede her ability

to meet service requirements because program work tends to not rise to the level of

service on the national, professional, or university/college level.

We hold that the actions about which Snook complains are not actions that a

reasonable employee would have found to be materially adverse or that would have

likely deterred her from complaining to the EEOC, Lamar or the courts. See id. at

441. We conclude there is no evidence that Snook suffered an adverse employment

action. See Pineda, 360 F.3d at 487; Dias, 214 S.W.3d at 676. We further conclude

that Snook’s evidence regarding her retaliation claim is no more than a scintilla and,

in legal effect, is no evidence. See Kindred, 650 S.W.2d at 63. Accordingly, the trial

court erred by denying Lamar’s no-evidence motion for summary judgment on

Snook’s retaliation claim. We sustain issue four.

In issue five, Lamar contends that even if Snook met her prima facie burden

of discrimination or retaliation, Lamar had legitimate, nondiscriminatory and

50 nonretaliatory reasons for its actions. Since we sustained Lamar’s third and fourth

issues, we need not address this issue. See Tex. R. App. P. 47.1. Having sustained

issues one through four, we conclude the trial court erred by denying Lamar’s No-

Evidence Motion for Summary Judgment. Accordingly, we reverse the trial court’s

order denying Lamar’s Plea to the Jurisdiction and Motion for Summary Judgment

and render judgment that Snook take nothing against Lamar.

REVERSED AND RENDERED.

_________________________ W. SCOTT GOLEMON Chief Justice

Submitted on June 16, 2022 Opinion Delivered September 29, 2022

Before Golemon, C.J., Kreger and Johnson, JJ.