634 S.W.3d 440
Tex. App.2021Background
- Flores was a TDCJ sergeant who injured her back, requested a shift change as an accommodation to attend physical therapy (summer 2012), and later took FMLA leave from March–August 2013.
- While on leave, Flores alleges supervisors repeatedly contacted her to return to work; she complained to HR. Her doctors released her to full duty on August 28, 2013.
- On her return day TDCJ issued five disciplinary write-ups for events in March 2013; Flores resigned that day in lieu of termination and sued under the TCHRA for disability discrimination and retaliation.
- TDCJ filed a plea to the jurisdiction; on first appeal this Court (Flores I) dismissed the disability claim but held Flores raised fact issues on retaliation (constructive discharge and causation), so the plea was denied as to retaliation.
- After Flores I, TDCJ filed a second plea/motion for summary judgment relying on intervening authority (Lara) and a new Barbosa affidavit; the trial court granted dismissal and Flores appealed.
- The Court of Appeals affirmed dismissal, holding Flores failed to plead or show a protected activity under Section 21.055 because her accommodation request (and related conduct) did not alert TDCJ to a reasonable belief that discrimination was at issue.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether requesting a schedule shift to attend therapy is protected activity under TCHRA §21.055 | Flores: her shift-change request was a reasonable-accommodation request and therefore protected | TDCJ: an accommodation request need not be protected; Lara limits what counts as "opposition" under §21.055 | Held: Not protected here—request did not alert employer she reasonably believed discrimination was at issue (Lara II standard) |
| Whether Flores suffered an adverse employment action (constructive discharge) | Flores: told to resign or be fired; resignation was coerced (constructive discharge) | TDCJ: subjective belief of coercion is insufficient; disciplinary process was not conclusive of termination | Held: Court did not reach this as dispositive because prima facie protected activity element failed; prior Flores I findings on fact issues do not control this element now |
| Whether there is causation between protected activity and adverse action | Flores: temporal proximity and investigations began while she was on leave, so retaliation at first opportunity; disputed validity of charges | TDCJ: no temporal or but-for causation; produced legitimate nonretaliatory reasons (e.g., inappropriate relationship with offender) | Held: Court found Flores failed initial prima facie showing of protected activity; causation inquiry unnecessary because threshold element failed |
| Whether law-of-the-case or sham-affidavit doctrines barred TDCJ’s second plea/affidavit or precluded reconsideration | Flores: prior appellate ruling in Flores I established fact issues; Barbosa’s new affidavit is sham and contradicts his earlier affidavit | TDCJ: may relitigate unaddressed elements; affidavit permitted to clarify policy | Held: Law-of-the-case inapplicable because Flores I did not decide whether accommodation requests are protected; court declined to rule on sham-affidavit issue (not necessary to disposition) |
Key Cases Cited
- McDonnell Douglas Corp. v. Green, 411 U.S. 792 (framework for burden-shifting in employment cases)
- Mission Consol. Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629 (Tex. 2012) (plaintiff must plead prima facie facts to waive sovereign immunity)
- Flores v. Texas Dep’t of Criminal Justice, 555 S.W.3d 656 (Tex.App.—El Paso 2018) (prior appellate decision in this matter distinguishing disability and retaliation issues)
- Texas Dep’t of Transp. v. Lara, 625 S.W.3d 46 (Tex. 2021) (Section 21.055 requires employee conduct to alert employer to a reasonable belief that discrimination is at issue)
- Alamo Heights Indep. Sch. Dist. v. Clark, 544 S.W.3d 755 (Tex. 2018) (retaliation prima facie: complaint must indicate belief discrimination is occurring)
- Exxon Mobil Corp. v. Rincones, 520 S.W.3d 572 (Tex. 2017) (complaints must reasonably notify employer of alleged discrimination)
- City of El Paso v. Heinrich, 284 S.W.3d 366 (Tex. 2009) (standard for resolving jurisdictional questions mirroring summary-judgment review)