ACCEPTED 04-15-00042-CV FOURTH COURT OF APPEALS SAN ANTONIO, TEXAS 5/12/2015 5:00:26 PM KEITH HOTTLE CLERK
No. 04-15-00042-CV
In the Court of Appeals FILED IN 4th COURT OF APPEALS for the Fourth Judicial District SAN ANTONIO, TEXAS San Antonio, Texas 5/12/2015 5:00:26 PM KEITH E. HOTTLE Clerk
TEXAS DEPARTMENT OF STATE HEALTH SERVICES, Appellant, v.
AMY W. ROCKWOOD Appellee.
On Interlocutory Appeal from Cause No. 2011CI-04447 in the 166th District Court of Bexar County, Texas
APPELLANT’S REPLY BRIEF
KEN PAXTON DREW L. HARRIS Attorney General of Texas Assistant Attorney General State Bar No. 24057887 CHARLES E. ROY First Assistant Attorney OFFICE OF THE ATTORNEY GENERAL General P.O. Box 12548 Austin, Texas 78711-2548 JAMES E. DAVIS Tel.: (512) 463-2120 Deputy Attorney General Fax: (512) 320-0667 for Civil Litigation Drew.Harris@texasattorneygeneral.gov ANGELA V. COLMENERO Chief - General Litigation COUNSEL FOR APPELLANT Division SUMMARY OF ARGUMENT
Amy Rockwood makes three incorrect arguments in her Appellee
Brief. First, regarding the prima facie element of being “qualified” to do
her job, Rockwood argues she was “qualified” in August 2009, but notably
does not contend that she was “qualified” at the relevant time of her
adverse employment action in October 2009.
Second, Rockwood relies upon the novel argument—not recognized
by the courts—that her employer had the affirmative burden under
disability accommodation law to proactively “inquire” with the
employee’s doctor without the employee ever providing any medical
forms or consent.
Third, Rockwood argues she can meet the prima facie element of
causation solely by showing temporal proximity of two-months-and-a-
week—despite both Texas and federal courts holding that such temporal
proximity alone is insufficient to show a causal link on summary
judgment—where Rockwood has the burden to show “but-for” causation.
Appellant Texas Department of State Health Services (“DSHS”)
contends all of these arguments are wrong, but if this Court agrees that
any of these three faulty arguments are incorrect, the Court should
2 reverse the denial of the plea to the jurisdiction on the appropriate
claims.
ARGUMENT
A. Rockwood Does Not Dispute She Was Not “Qualified” to Work at the Time of Her Adverse Employment Action.
Rockwood asserts that she was a “qualified individual with a
disability” because, prior to August 2009, she was “rated a ‘3’ Competent
to perform her duties,” and she was still able to perform her duties in
August 2009 despite lacking a rubber mat and chair. See Appellee Br. at
15. But it is undisputed that after her September 4, 2009 car accident,
Rockwood was completely incapable of performing her essential job
functions. CR.47 at 44:7-12; 141:13-20.
At the time that mattered—at her October 13, 2009 termination—
there is no dispute that Rockwood was not “qualified” to perform the
essential requirements of her job. See Turco v. Hoechst Celanese Corp.,
101 F.3d 1090, 1093 (5th Cir. 1996). In Turco, even though the employee
might have at one time been healthy and qualified, the Court of Appeals
held that because his diabetes caused him to not be able to safely perform
his essential job functions, he was “unqualified,” and summary judgment
was warranted. Id. at 1094.
3 Here, Rockwood must show that she was “qualified” at the relevant
time as an initial prima facie requirement for bringing any sort of
disability discrimination claim under Chapter 21 of the Labor Code.
Davis v. City of Grapevine, 188 S.W.3d 748, 757 (Tex. App.-Fort Worth
2006, pet. denied). Because Rockwood cannot meet this prima facie
element, she cannot bring a Chapter 21 claim.
B. Rockwood Creates New “Interactive Process” Requirements for Employers Not Recognized by Any Court.
As an initial matter, because Rockwood did not make a proper
disability accommodation request, DSHS was not under an obligation to
participate in the interactive process. As the Fifth Circuit explained:
[O]nce an accommodation is properly requested, the responsibility for fashioning a reasonable accommodation is shared between the employee and employer. Thus, it is the employee’s initial request for an accommodation which triggers the employer's obligation to participate in the interactive process of determining one. If the employee fails to request an accommodation, the employer cannot be held liable for failing to provide one.
Taylor v. Principal Financial Group, Inc., 93 F.3d 155, 165 (5th Cir. 1996)
(emphasis added). Even Rockwood acknowledges that she did not submit
a formal accommodation request until after her October 2009
4 termination. See Appellee Br. at 9 (“Appellee submitted a formal
reasonable accommodation request on March 12, 2010 …..”).
But even assuming DSHS was required to engage in an “interactive
process,” DSHS fulfilled its burden because Safety Officer Martha Fritz
tried repeatedly to meet with Rockwood in August 2009 to perform an
ergonomic workplace assessment, and Fritz even sought a temporary
remedy for Rockwood. CR.106 at ¶ 7. Rockwood responds in her Appellee
Brief by creating new requirements for employers regarding the
interactive process.
Rockwood implicitly asks this Court to create new law imposing a
requirement on employers to proactively inquire with disabled
employees’ physicians about their possible health needs. Rockwood
argues: “The Appellant’s failure to further inquire with Appellee’s
physician and to accommodate Appellee concerning her request for a
rubber mat and ergonomic chair constitutes a violation of the Act.”
Appellee Br. at 19.
Rockwood notably does not explain how DSHS would even know
who her physician was, or how DSHS could get around medical privacy
laws to talk to Rockwood’s physician.
5 Rockwood cites Cutrera v. Board of Sup’rs of Louisiana State
University, 429 F.3d 108, 112 (5th Cir. 2005), as supposed authority that
“the employer is required to … consult with the employee’s physician.”
Appellee Br. at 19. However, Cutrera contradicts this, noting that in
general, “it is the responsibility of the individual with the disability to
inform the employer that an accommodation is needed.” 429 F.3d at 12.
Moreover, Cutrera is readily distinguishable, since there the employer
“refused to discuss any steps that could be taken to accommodate her
disability, and instead terminated her immediately.” Id. In contrast, here
Ms. Fritz repeatedly tried to discuss steps that could be taken, and the
main reason Ms. Fritz was unsuccessful in her efforts was that after
Rockwood’s September 4, 2009 car accident, Rockwood never returned to
work. CR.102, at ¶ 6.
Here, the “responsibility for breakdown of the interactive process is
traceable to the employee.” Hagood v. County of El Paso, 408 S.W.3d 515,
526 (Tex. App.–El Paso 2013, no pet.) (affirming summary judgment).
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ACCEPTED 04-15-00042-CV FOURTH COURT OF APPEALS SAN ANTONIO, TEXAS 5/12/2015 5:00:26 PM KEITH HOTTLE CLERK
No. 04-15-00042-CV
In the Court of Appeals FILED IN 4th COURT OF APPEALS for the Fourth Judicial District SAN ANTONIO, TEXAS San Antonio, Texas 5/12/2015 5:00:26 PM KEITH E. HOTTLE Clerk
TEXAS DEPARTMENT OF STATE HEALTH SERVICES, Appellant, v.
AMY W. ROCKWOOD Appellee.
On Interlocutory Appeal from Cause No. 2011CI-04447 in the 166th District Court of Bexar County, Texas
APPELLANT’S REPLY BRIEF
KEN PAXTON DREW L. HARRIS Attorney General of Texas Assistant Attorney General State Bar No. 24057887 CHARLES E. ROY First Assistant Attorney OFFICE OF THE ATTORNEY GENERAL General P.O. Box 12548 Austin, Texas 78711-2548 JAMES E. DAVIS Tel.: (512) 463-2120 Deputy Attorney General Fax: (512) 320-0667 for Civil Litigation Drew.Harris@texasattorneygeneral.gov ANGELA V. COLMENERO Chief - General Litigation COUNSEL FOR APPELLANT Division SUMMARY OF ARGUMENT
Amy Rockwood makes three incorrect arguments in her Appellee
Brief. First, regarding the prima facie element of being “qualified” to do
her job, Rockwood argues she was “qualified” in August 2009, but notably
does not contend that she was “qualified” at the relevant time of her
adverse employment action in October 2009.
Second, Rockwood relies upon the novel argument—not recognized
by the courts—that her employer had the affirmative burden under
disability accommodation law to proactively “inquire” with the
employee’s doctor without the employee ever providing any medical
forms or consent.
Third, Rockwood argues she can meet the prima facie element of
causation solely by showing temporal proximity of two-months-and-a-
week—despite both Texas and federal courts holding that such temporal
proximity alone is insufficient to show a causal link on summary
judgment—where Rockwood has the burden to show “but-for” causation.
Appellant Texas Department of State Health Services (“DSHS”)
contends all of these arguments are wrong, but if this Court agrees that
any of these three faulty arguments are incorrect, the Court should
2 reverse the denial of the plea to the jurisdiction on the appropriate
claims.
ARGUMENT
A. Rockwood Does Not Dispute She Was Not “Qualified” to Work at the Time of Her Adverse Employment Action.
Rockwood asserts that she was a “qualified individual with a
disability” because, prior to August 2009, she was “rated a ‘3’ Competent
to perform her duties,” and she was still able to perform her duties in
August 2009 despite lacking a rubber mat and chair. See Appellee Br. at
15. But it is undisputed that after her September 4, 2009 car accident,
Rockwood was completely incapable of performing her essential job
functions. CR.47 at 44:7-12; 141:13-20.
At the time that mattered—at her October 13, 2009 termination—
there is no dispute that Rockwood was not “qualified” to perform the
essential requirements of her job. See Turco v. Hoechst Celanese Corp.,
101 F.3d 1090, 1093 (5th Cir. 1996). In Turco, even though the employee
might have at one time been healthy and qualified, the Court of Appeals
held that because his diabetes caused him to not be able to safely perform
his essential job functions, he was “unqualified,” and summary judgment
was warranted. Id. at 1094.
3 Here, Rockwood must show that she was “qualified” at the relevant
time as an initial prima facie requirement for bringing any sort of
disability discrimination claim under Chapter 21 of the Labor Code.
Davis v. City of Grapevine, 188 S.W.3d 748, 757 (Tex. App.-Fort Worth
2006, pet. denied). Because Rockwood cannot meet this prima facie
element, she cannot bring a Chapter 21 claim.
B. Rockwood Creates New “Interactive Process” Requirements for Employers Not Recognized by Any Court.
As an initial matter, because Rockwood did not make a proper
disability accommodation request, DSHS was not under an obligation to
participate in the interactive process. As the Fifth Circuit explained:
[O]nce an accommodation is properly requested, the responsibility for fashioning a reasonable accommodation is shared between the employee and employer. Thus, it is the employee’s initial request for an accommodation which triggers the employer's obligation to participate in the interactive process of determining one. If the employee fails to request an accommodation, the employer cannot be held liable for failing to provide one.
Taylor v. Principal Financial Group, Inc., 93 F.3d 155, 165 (5th Cir. 1996)
(emphasis added). Even Rockwood acknowledges that she did not submit
a formal accommodation request until after her October 2009
4 termination. See Appellee Br. at 9 (“Appellee submitted a formal
reasonable accommodation request on March 12, 2010 …..”).
But even assuming DSHS was required to engage in an “interactive
process,” DSHS fulfilled its burden because Safety Officer Martha Fritz
tried repeatedly to meet with Rockwood in August 2009 to perform an
ergonomic workplace assessment, and Fritz even sought a temporary
remedy for Rockwood. CR.106 at ¶ 7. Rockwood responds in her Appellee
Brief by creating new requirements for employers regarding the
interactive process.
Rockwood implicitly asks this Court to create new law imposing a
requirement on employers to proactively inquire with disabled
employees’ physicians about their possible health needs. Rockwood
argues: “The Appellant’s failure to further inquire with Appellee’s
physician and to accommodate Appellee concerning her request for a
rubber mat and ergonomic chair constitutes a violation of the Act.”
Appellee Br. at 19.
Rockwood notably does not explain how DSHS would even know
who her physician was, or how DSHS could get around medical privacy
laws to talk to Rockwood’s physician.
5 Rockwood cites Cutrera v. Board of Sup’rs of Louisiana State
University, 429 F.3d 108, 112 (5th Cir. 2005), as supposed authority that
“the employer is required to … consult with the employee’s physician.”
Appellee Br. at 19. However, Cutrera contradicts this, noting that in
general, “it is the responsibility of the individual with the disability to
inform the employer that an accommodation is needed.” 429 F.3d at 12.
Moreover, Cutrera is readily distinguishable, since there the employer
“refused to discuss any steps that could be taken to accommodate her
disability, and instead terminated her immediately.” Id. In contrast, here
Ms. Fritz repeatedly tried to discuss steps that could be taken, and the
main reason Ms. Fritz was unsuccessful in her efforts was that after
Rockwood’s September 4, 2009 car accident, Rockwood never returned to
work. CR.102, at ¶ 6.
Here, the “responsibility for breakdown of the interactive process is
traceable to the employee.” Hagood v. County of El Paso, 408 S.W.3d 515,
526 (Tex. App.–El Paso 2013, no pet.) (affirming summary judgment).
Accordingly, summary judgment on the reasonable accommodation claim
is warranted.
6 C. Rockwood Cannot Rely Upon Temporal Proximity Alone to Show “But-For” Causation.
Under either her discrimination or retaliation claim, Rockwood must
show “but-for” causation. Davis, 188 S.W.3d at 757; Hagood, 408 S.W.3d
at 526. Moreover, Rockwood “must rebut each nondiscriminatory or
nonretaliatory reason articulated by the employer.” McCoy v. City of
Shreveport, 492 F.3d 551, 557 (5th Cir. 2007) (emphasis added).
With respect to the leave exhaustion reason—which Rockwood does
not factually dispute—Rockwood’s only response is that “she believed
that reason was pretextual.” See Appellee Br. at 22. It is well-established
that personal beliefs are insufficient to create a fact issue as to pretextual
discrimination or retaliation. See e.g., Britt v. The Grocer’s Supply Co.
Inc., 978 F.2d 1441, 1451 (5th Cir. 1992).
The only other argument for causation Rockwood puts forward is
the “temporal proximity” between the August 5, 2009 request and her
October 13, 2009 termination, which amounts to a little over two-months-
and-a-week gap. See Appellee Br. at 21. However, a very recent 2015
Texas Court of Appeals case noted that “gap of about two months and one
week between the protected activity and the adverse action was
insufficient by itself to infer a causal link.” Texas Parks and Wildlife
7 Dept. v. Gallacher, 2015 WL 1026473, *7 (Tex. App.—Austin, March 4,
2015). Recent federal law similarly found that two-months-and-a-week
was insufficient by itself to show causation. Amsel v. Texas Water Dev.
Bd., 464 Fed. Appx. 395, 402 (5th Cir. 2012) (noting that “timing alone
will not always be enough for a prima facie case”).
Accordingly, Rockwood has not met her burden in rebutting the
legitimate reasons for termination—and she has not even set forth a
prima facie causation showing to the extent she is relying upon a two-
month-and-a-week timeframe. Gallacher, 2015 WL 1026473, *7. Thus,
summary judgment on the issue of causation is warranted.
CONCLUSION
The Court should reverse the trial court’s denial of the Plea to the
Jurisdiction, and dismiss Plaintiff’s claims with prejudice.
Respectfully submitted,
KEN PAXTON Attorney General of Texas
CHARLES E. ROY First Assistant Attorney General
JAMES E. DAVIS Deputy Attorney General for Civil Litigation
ANGELA V. COLMENERO Division Chief, General Litigation Division
8 /s/ DREW L. HARRIS DREW L. HARRIS Assistant Attorney General State Bar No. 24057887 Office of the Attorney General General Litigation Division P.O. Box 12548 Austin, TX 78711-2548 (512) 463-2120 / (512) 320-0667 FAX drew.harris@texasattorneygeneral.gov
ATTORNEYS FOR APPELLANT TEXAS DEPARTMENT OF STATE HEALTH SERVICES
CERTIFICATE OF SERVICE
On May 12, 2015, the foregoing was served via certified mail, return
receipt request, upon:
R. Chris Pittard FORTE & PITTARD, P.P.L.C. Counsel for Appellee /s/ Drew Harris DREW HARRIS
CERTIFICATE OF COMPLIANCE
In compliance with Texas Rule of Appellate Procedure 9.4(i)(2), this
Appellant’s Reply Brief contains 1,504 words.
/s/ Drew Harris DREW HARRIS