El Paso County, Texas v. Mary Lou VasquezEl Paso County, Texas v. Mary Lou Vasquez
OPINION
This is an accelerated interlocutory appeal from a trial court order denying El Paso County’s plea to the jurisdiction. We reverse and render in part and remand the remainder.
FACTUAL SUMMARY
El Paso County hired Mary Lou Vasquez on August 20, 2001. For the next eleven years, Vasquez worked several clerical and secretarial positions, but primarily maintained her position as a Collection Specialist with the County’s Bond Forfeiture Unit.
On September 3, 2012, Vasquez suffered a heart attack at home and was immediately taken to the emergency room at Del Sol Medical Center. She was 54 years old at the time. About a week later, Vasquez had quintuple bypass heart surgery. Because of her heart attack and subsequent surgery, Vasquez took an employer-approved leave of absence from work. While on leave, her supervisor, Ralph Girvin, directed her to communicate with an individual named Lulu, a secretary at the County Attorney’s office, about the status of her medical leave of absence. Vasquez regularly reported to Lulu with updates and the progress of her treatment and status. While still at Del Sol recovering from sur
When Vasquez returned to work, she was able to perform her job as a Collection Specialist with reasonable accommodation. Nevertheless, she was involuntarily transferred to a new position in the “Hot Checks” Unit of the County Attorney’s office. According to Vasquez, one of the assistant county attorneys informed her that she was not permitted to return to her position as Collection Specialist in the Bond Forfeiture Unit because one or more employees had threatened to either walk off the job if she returned to work or sue the County if they acquired TB. Vasquez also discovered that many of her co-workers and managers were aware that she had acquired TB. Vasquez did not disclose this information to anyone except when she was required to give periodic reports on her status and progress during her leave of absence. According to Vasquez, once her co-workers discovered she had acquired TB, they treated her differently and shunned her. Vasquez also alleged in her petition that after being transferred to the Hot Checks Unit, her supervisor, Ralph Girvin, threatened and intimidated her. Vasquez’s husband filed a complaint regarding Girvin’s conduct with the County Attorney’s office. In February 2013, the County recorded a portion of a telephone conversation between Vasquez and an individual who had allegedly written a hot check. After investigating the call, the County recommended she be discharged from her new position because she allegedly violated certain practices and procedures during the phone conversation. On February 20, 2013, the County informed Vasquez that she was terminated from her employmént. However, the County gave her the option of resignation in lieu of termination. Vasquez elected to resign and signed a resignation letter prepared by the County.
The Discrimination Charge
On March 12, 2013, Vasquez filed a charge of discrimination (“the original charge”) in which she alleged the County discriminated against her based on age and disability. She filed it with the Equal Employment Opportunity Commission (EEOC) and the Texas Workforce Commission Civil Rights Division (TWC) received a copy. In the original charge, Vasquez checked the boxes for “age” and “disability” discrimination and included the following factual “particulars”:
I. On or around February 20, 2013 I was discharged from my position of Collection Specialist by Ralph Girvin-Supervisor, JoAnne Bernal-County Attorney, and Joe Gonzalez-Supervisory Attorney.
II. No suitable reason given. I was told that my employment was terminated because I did not follow Hot Check Procedures.
III. I believe that I was discriminated against because of my age, 54, and my disability in the manner described above in violation of the Age Discrimination in Employment Act of 1967, ADEA and inviolation of Title I of the Americans with Disabilities Act of 1990, as amended (AD AAA).
Vasquez signed the original charge under oath. In July 2013, Vasquez filed an amended charge with the EEOC, as permitted by the Texas Labor Code. She wanted to add a claim for retaliation and for disclosure of confidential health information. The amended charge was her original charge with the word “amended” written at the top. She also checked the “retaliation” box and signed her initials next to the newly checked box. According to Vasquez, the EEOC additionally instructed her to attach a statement to the amended charge describing her retaliation claim. That statement is entitled, “Amendment to EEOC Charge.” Vasquez signed the statement, but did not do so under oath. However, she contends that when she initialed the retaliation box and attached her statement, it was her intent to reaffirm her signature that already appeared on the original charge. Specifically, she asserts that she reaffirmed her oath that the amendment she submitted was true, correct, and accurate. On May 30, 2014, the EEOC concluded its investigation into Vasquez’s charge and issued its Dismissal and Notice of Rights.
The Lawsuit
On June 10, 2014, Vasquez filed her original petition alleging three claims: (1) the County discriminated against her based on an actual disability and being “regarded as” disabled; (2) she was retaliated against for “taking time off for medical treatment, seeking a reasonable accommodation for her disability and for complaining about mistreatment by her supervisor”; and (3) the County violated Chapter 21 when it disclosed her confidential health information.
On October 6, 2014, the County filed a motion to dismiss under Rule 91a and a plea to the jurisdiction, arguing that the trial- court lacked jurisdiction over Vasquez’s entire lawsuit. The County alleged that the retaliation claim was barred because she failed to raise it in her original charge and failed to submit her amended charge to the EEOC “under oath,” as required by Chapter 21. In response, Vasquez filed an amended petition containing the same causes of action asserted in her original petition and added a claim for age discrimination under state law. Vasquez asserted that she had recently submitted an affidavit to the EEOC, dated October 30, 2014, in support of her amended charge and the statement attached to it describing her retaliation claim. In her affidavit, she averred:
I swear and affirm that the attached amendment to my EEOC charge was submitted under oath at the time I submitted it to the EEOC in July 2013. I reaffirmed my prior oath when I amended my EEOC charge.
I am, however, re-affirming my oath at this time that the amendment to my EEOC charge is true, correct, and accurate and based upon personal knowledge. I therefore swear and affirm, under penalty of perjury, that the attached amendment to my EEOC charge is true, correct, and. accurate, and based upon personal knowledge.
The County then filed an amended motion to dismiss and amended plea to the jurisdiction. The amended plea contained the same.arguments as the original plea, but added the arguments that Vasquez failed to exhaust her administrative remedies as to her “regarded as” disabled claim and her claim that she was denied a reasonable accommodation. On. February 26, 2015, the trial court denied the amended plea and this interlocutory appeal follows.
We will address the County’s arguments in the following order: (1) Issues One and Two, pertaining to whether Vasquez exhausted her remedies concerning her retaliation claim and “regarded as” disabled claim; (2) Issues Three and Four, concerning Vasquez’s actual disability pleadings; and (3) Issue Five, pertaining to whether Chapter 21 creates a cause of action for the disclosure of confidential health information. Finally, it is not necessary for us to address the County’s third issue— whether Vasquez exhausted her administrative remedies and pled facts sufficient to state a claim that she was denied a reasonable accommodation—because in her brief she concedes that she cannot assert such a claim under the statute.
PLEA TO THE JURISDICTION
A plea to the jurisdiction is a dilatory plea by which a party challenges the court’s authority to determine the subject matter of a cause of action.
Bland Independent School Dist. v. Blue,
In asserting the plea, the plaintiff bears the burden of alleging facts that affirmatively prove the trial court has subject matter jurisdiction.
Texas Dept. of Criminal Justice v. Miller,
When a plea to the jurisdiction challenges the sufficiency of the pleadings, we determine whether the plaintiff has met her burden by pleading facts that affirmatively demonstrate the trial court’s subject matter jurisdiction.
Miranda,
When a plea to the jurisdiction challenges the existence of jurisdictional facts, we consider relevant evidence submitted by the parties to the extent necessary to resolve the jurisdictional issues raised, just as the district court is required to do.
Miranda,
EXHAUSTION OP ADMINISTRATIVE REMEDIES
In its first point of error, the County argues that Vasquez failed to exhaust her administrative remedies for her retaliation claim, thus depriving the trial court of subject matter jurisdiction. In its second issue, the County similarly contends that Vasquez failed to exhaust her administrative remedies concerning her “regarded as” disability claim. Because both issues involve the exhaustion of remedies, we will address them together.
Chapter 21 of the Labor Code, also known as the Texas Commission on Human Rights Act (TCHRA), deals with employment discrimination. Tex.Lab.Code Ann. §§ 21.001-556 (West 2015). The Legislature established a limited waiver of immunity when it enacted Chapter 21.
Chatha,
However, a person claiming a violation of Chapter 21 must first exhaust the act’s administrative remedies prior to bringing a civil action.
Smith v. University of Texas Southwestern Medical Center of Dallas,
The County advances three arguments in support of its proposition that Vasquez failed to exhaust her administrative remedies: (1) the original charge did not raise retaliation; (2) the amended charge raising retaliation was not signed under oath; and (3) Vasquez failed to file her retaliation claim with the TWO. Vasquez responds that her amended charge relates back to her original charge and that she dually-filed her charge with both the EEOC and TWC. 1
Section 21.201(f) provides that “[a]n amendment to a complaint alleging additional facts that constitute unlawful employment practices relating to or arising from the subject matter of the original complaint relates back to the date the complaint was first received by the commission.” Tex.Lab.Code Ann. § 21.201(f). Generally, amendments that raise a new legal theory of discrimination do not relate back to the initial charge of discrimination, unless the facts supporting both the amendment and the initial charge are essentially the same.
See Manning v. Chevron Chem. Co.,
However, courts will not construe the charge to include facts that were initially omitted.
See County of Travis ex rel. Hamilton v. Manion,
No. 03-11-00533-CV,
In
Manning,
Similarly, in
Altman v. Key Energy Services, LLC,
No. 2:11-CV-00495-JRG,
In
Poindexter,
But in
Sanchez v. Standard Brands, Inc.,
the court ruled that the plaintiff was not barred from bringing additional claims of discrimination based on national origin and gender, which were first raised by an amendment made after the 300-day window had closed.
My complaint was that my boss lady hit me at my rear end and about a month before that I hurt my thumb and was out of work for seven days and the Company didn’t pay me. I hurt my thumb at work.
Id. at 458. The plaintiffs amendment provided:
I was discriminated against by Standard Brands, Inc. because of my national origin and sex. My supervisor became very abusive toward me and constantly harrassed [sic] me on my job. She would rush me and one day she caused me to hurt my thumb. I lost 7 days of work and the company would not pay me for my lost time. On another occasion my Supervisor struck me on my buttocks with her hand and accused meof doing my work wrong, rather than argue with her I told her husband (the plant manager) I was going home. When I returned the next day my supervisor told me she did not need me anymore and fired me. My supervisor seemed most [sic] abrupt and vengeful against Negro and Mexican American women than with Anglo women.
Id. at 459. Clearly, the plaintiffs facts contained in her amendment related to or arose from the facts alleged in her initial charge, thereby activating Section 21.201(f). Id. at 458.
Moreover, in
Lopez v. Texas State University,
Several courts have recognized that the line between race and national-origin discrimination is difficult to draw and a particular national origin can often be reasonably understood to indicate a particular race or color.
City of Sugar Land,
However, we cannot say the same for Vasquez’s retaliation claim. Retaliation, age discrimination, and disability discrimination are all distinct concepts.
See Davis,
The “Regarded As” Disabled Claim
Under Chapter 21, an individual need not have an actual physical impairment to state a claim, as long as that individual is “regarded as having such an impairment.” Tex.Lab.Code Ann. § 21.002(6);
see also Francis v. City of Meriden,
The County relies on
Silva v. Chertoff,
The key question presented by the exhaustion argument is whether Vasquez’s claim that she was “regarded as” disabled falls within the scope of her existing discrimination charge. This, in turn, depends on whether her allegations could have been “reasonably expected to grow out of [the] EEOC charge.”
Dyer v. Wiregrass Hospice, L.L.C.,
The vast majority of district courts addressing this or substantially similar issues have reached the same conclusion, holding that the scope of an EEOC charge alleging disability discrimination extends to “regarded as” claims in addition to actual disability claims.
See, e.g., Pellack v. Thorek Hosp. & Med. Ctr.,
The converse is equally true. Courts have also held that a plaintiff similarly exhausts her administrative remedies as to an actual disability claim when her charge only referred to a “regarded as” disabled claim.
See Williams v. AT & T, Inc.,
No. H-07-0559,
We believe the reasoning of these courts is sound. Because Vasquez’s charge alleged discrimination based on her disability, her “regarded as” claim falls within the scope of her charge, and her exhaustion requirement is therefore satisfied. We overrule Issue Two.
THE ACTUAL DISABILITY CLAIM
In its fourth point of error, the County urges that Vasquez’s petition did not state claims sufficient to overcome the County’s sovereign immunity. In response, Vasquez asserts that she specifically pled she was disabled due to her heart attack and TB.
An employee must establish a pri-ma facie case of discrimination to show that the court has jurisdiction and that the County waived its immunity from suit under Chapter 21.
San Antonio Water Sys. v. Nicholas,
To prevail on a disability discrimination claim, a plaintiff must show that (1) she has a “disability,” (2) she is “qualified” for the job she seeks, and (3) she suffered an adverse employment decision because of her disability.
Turco v. Hoechst Celanese Corp.,
In determining if a person is substantially limited in a major life activity, we consider: (1) the nature and severity of the impairment; (2) the duration or expected duration of the impairment; and (3) the permanent or long-term impact, or the expected permanent or long-term impact of or resulting from the impairment.
Union Carbide Corp.,
More importantly, under the actual disability prong, the relevant determination is whether the plaintiff was disabled at the time of the adverse employment action.
Tex. Dep’t of Family and Protective Servs. v. Howard,
However, on the day she returned to work in January 2013, at age 54, Vasquez was informed by Joe Gonzalez, an Assistant County Attorney, that she would not be permitted to work in the Bond Forfeiture Unit because one or more employees had threatened to either walk off the job if Vasquez returned to work or sue the County if they acquired TB from Vasquez.
Vasquez was further told by Mr. Gonzalez upon her return that she would be transferred to a new position in the ‘Hot Checks’ Unit of the County Attorney’s office.
Vasquez was therefore removed from her longstanding job in the Bond Forfeiture Unit for an illegitimate reason— namely, due to fear and stigma as a result of having TB. Vasquez was not actually disabled at the time, but rather, was regarded and/or perceived as disabled by management, her supervisors, and coworkers at the County.
[Emphasis added]. Vasquez faded to plead sufficient facts to establish a prima facie case of disability discrimination. Instead, she has affirmatively established that she cannot prove a crucial element of her disability claim—that she suffered from a disability at the time of the County’s alleged adverse actions. Not only had she recovered from her heart attack, government health officials had released her to resume work because she successfully completed her course of treatment for TB.
Garcia,
DISCLOSURE OF CONFIDENTIAL HEALTH INFORMATION
In considering the fifth point of error, we must determine whether Vasquez properly pled a cause of action for disclosure of confidential health information. The County contends that because no such cause of action exists, it cannot have waived its immunity to suit under Chapter 21. We agree.
Vasquez responds that federal law supports her assertion that a valid cause of action for disclosure of confidential health information exists under Chapter 21. Several federal courts have held that a claim for disclosure of confidential health information constitutes an independent cause of action for disability discrimination if the disclosure results in a tangible injury to the plaintiff.
See Cossette v. Minnesota Power & Light,
However we are to look to federal law only when the two statutes are analogous.
Prairie View A & M University v. Chatha,
CONCLUSION
Having sustained Issues One, Three, Four, and Five, we reverse and render judgment granting the plea to the jurisdiction with regard to claims of retaliation, actual disability, denial of a reasonable accommodation, and disclosure of confidential health information. We remand the cause for consideration of Vasquez’s “regarded as” disabled claim.
Notes
. Vasquez relies on
Norwood v. Litwin Engineers & Constructors, Inc.,