625 S.W.3d 46
Tex.2021Background
- Albert Lara, a TxDOT inspector, underwent surgery in May 2015, exhausted paid leave, and submitted FMLA and sick-leave forms reflecting ongoing recovery and a projected return date in October.
- TxDOT’s written leave-without-pay (LWOP) policy allows up to 12 months of unpaid leave and requires supervisors to grant LWOP when it is needed as a reasonable accommodation, but instructs employees to submit a written memo to request LWOP.
- Lara never submitted the formal LWOP memo but testified he repeatedly contacted supervisors, discussed light duty and LWOP (including an August 18 call), and kept TxDOT informed via medical/FMLA paperwork.
- TxDOT administratively separated (terminated) Lara effective September 16 after his paid leave expired so it could hire a replacement.
- Lara sued under the TCHRA for failure to accommodate (Tex. Lab. Code §21.128), retaliation for requesting accommodation (§21.055), and disability-based discharge (§21.051); the trial court denied TxDOT’s motion to dismiss.
- The court of appeals affirmed denial as to the accommodation claim, dismissed the retaliation claim, and (erroneously, the Supreme Court concluded) declined to address a §21.051 termination claim; the Texas Supreme Court affirmed on accommodation, affirmed dismissal of retaliation, and remanded the §21.051 issue to the court of appeals.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Lara requested LWOP (sufficient notice to invoke accommodation duties) | Lara repeatedly called supervisors, discussed LWOP on August 18, and submitted medical/FMLA forms showing need and return estimates | TxDOT: Lara never complied with the LWOP policy’s written-memo requirement, so he made no request as a matter of law | Court: Request need not be formal; evidence was sufficient for a jury to find Lara requested LWOP |
| Whether Lara’s requested leave was an unreasonable/indefinite leave (so not a reasonable accommodation) | Lara’s latest physician estimate showed an October return (≈5 weeks after termination), and TxDOT policy contemplates filling positions and later assigning comparable work | TxDOT: Lara sought effectively indefinite leave (multiple extensions and future surgery), imposing undue hardship and removing qualification | Court: Indefinite leave is not reasonable, but facts here support that Lara requested a definite, short extension; issue survives dismissal |
| Whether requesting accommodation constitutes protected “opposition” under §21.055 (retaliation) | Lara: requesting LWOP/light duty is opposition to discriminatory practice and thus protected activity | TxDOT: §21.055 is narrower than the ADA’s retaliation provision; an accommodation request does not necessarily alert employer to a belief of illegal discrimination | Court: An accommodation request can in some circumstances be protected, but to invoke §21.055 it must alert the employer that the employee reasonably believes discrimination is occurring; Lara did not so notify TxDOT—retaliation claim dismissed |
| Whether Lara adequately pleaded a §21.051 disability-discrimination (discharge) claim | Lara’s petition cited §21.051 and alleged termination because of disability | TxDOT: (argued in lower courts) challenged sufficiency; court of appeals said plaintiff failed to plead that claim | Court: Pleadings gave fair notice of a §21.051 claim; court of appeals should decide TxDOT’s challenge to dismissal in the first instance (case remanded on this point) |
Key Cases Cited
- Alamo Heights Indep. Sch. Dist. v. Clark, 544 S.W.3d 755 (Tex. 2018) (retaliation requires employee to alert employer that unlawful discrimination is at issue)
- Exxon Mobil Corp. v. Rincones, 520 S.W.3d 572 (Tex. 2017) (protected opposition must at least alert employer to a reasonable belief of discrimination)
- Mission Consol. Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629 (Tex. 2012) (jurisdictional plea standards; summary-judgment–style review of jurisdictional facts)
- Hwang v. Kansas State Univ., 753 F.3d 1159 (10th Cir. 2014) (court declined to require indefinite leave; held long leaves are often unreasonable where an inflexible policy applied)
- Rascon v. U S West Commc’ns, Inc., 143 F.3d 1324 (10th Cir. 1998) (leave can be a reasonable accommodation depending on employer policy and facts)
- Solomon v. Vilsack, 763 F.3d 1 (D.C. Cir. 2014) (requests for reasonable accommodation are protected activity under the ADA’s anti-retaliation provision)
- Kirkeberg v. Canadian Pac. Ry., 619 F.3d 898 (8th Cir. 2010) (recognized circuit precedent that requesting accommodation can be protected under ADA retaliation provision)