Donaldson v. Tex. Dep't of Aging & Disability Servs.

• Decision Date: 05 May 2016
• Docket Number: NO. 01–14–00736–CV,01–14–00736–CV
• Citation: 495 S.W.3d 421
• Parties: David Donaldson, Appellant v. Texas Department of Aging and Disability Services, Appellee
• Court: Texas Court of Appeals

495 S.W.3d 421

David Donaldson, Appellant

v.Texas Department of Aging and Disability Services, Appellee

NO. 01–14–00736–CV

Court of Appeals of Texas, Houston (1st Dist.).

Opinion issued May 5, 2016

Ashok Bail, Houston, TX, for Appellant.

Greg Abbott, Attorney General of Texas, Erika M. Laremont, Office of the Attorney General, Austin, TX, for Appellee.

Panel consists of Justices Keyes, Huddle, and Lloyd.

OPINION

Russell Lloyd, Justice

Appellant David Donaldson appeals the trial court's order granting summary judgment in favor of appellee Texas Department of Aging and Disability Services (“DADS”) on Donaldson's claims of race and disability discrimination, retaliation, and hostile work environment brought under the Texas Commission on Human Rights Act (“TCHRA”) and Title VII of the Civil Rights Act of 1964.¹ Donaldson contends that the trial court erred in rendering summary judgment in favor of DADS because he presented evidence raising genuine issues of material fact on each element challenged by DADS for each of his claims. We affirm in part, and reverse and remand in part.

Background

In December 2008, Donaldson, an African–American, began his employment with DADS as an Associate Psychologist III at the Brenham State Supported Living Center (“BSSLC”).² As an Associate Psychologist III, Donaldson was responsible for “developing, implementing, and evaluating behavior support plans ..., staff training, data collection and reporting, and program evaluation” relating to BSSLC residents. The position is paperwork-intensive and involves observing patients to determine an appropriate behavioral plan and amending pre-existing plans.

On November 19, 2009, Donaldson received performance counseling from his supervisor, Sharon Machinsky, for falling asleep during a staff meeting and for failure to timely submit reports. In response, Donaldson provided DADS with documentation reflecting that he was receiving treatment for insomnia, non-combat-related post-traumatic stress disorder, bi-polar disorder, and anxiety disorder.

On February 24, 2010, Donaldson received a “first level reminder” from Machinsky for continuing job performance issues, specifically “the continued delinquency of [his] reports, the substandard writing of the reports, and the failure to make appropriate corrections in a timely manner.” Donaldson claims that he was late with some of his reports because his caseload continued to increase due to the transfer of the caseloads of departing psychologists to the newly hired psychologists including him. On March 1, 2010, Donaldson received another performance counseling for missing a report deadline and then submitting the previous year's report with only the date changed. Donaldson denies the allegation.

Donaldson alleges that Donna Bradley–Schrick, a Caucasian female, was promoted to Associate Psychologist V in March 2010, but that he did not receive a promotion.

In April 2010, Donaldson informed DADS that he had been diagnosed with prostate cancer and advised his supervisors and managers of his cancer treatment plan. Danielle Hazziez testified that during a staff meeting the next day, Dr. Hancock, Chief Psychologist, “looked at [Donaldson]. She didn't say his name, but she said some people want to be babied—instead of doing their job and doing the programming—making—I mean, writing and developing the positive behavior programs. They want too much assistance.”

On May 5, 2010, Hancock met with Donaldson regarding a Positive Behavior Support Plan (“PBSP”) he had submitted that contained incorrect information. At their meeting, Donaldson requested accommodations due to his weekly medical treatments, specifically, that he be allowed to miss the weekly class related to preparing PBSPs and that he be provided with assistance to complete his work. Hancock agreed that Donaldson could miss the classes but advised him that he was still responsible for the required instruction and that she would inquire about an alternate time for him to meet with the class instructor. Hancock also assigned a psychology assistant to help Donaldson with his paperwork. Donaldson contends that the assistant assigned to him was promoted to another position one week later and that DADS never provided anyone else to assist him. He further claims that several non-disabled Caucasian psychologists were provided with assistants during this same time period.

On May 27, 2010, Donaldson was notified that the PBSPs for three of the individuals assigned to him had not been updated since October or December 2008.³ Donaldson denies the allegation and contends that Machinsky intentionally transferred the overdue PBSPs from her caseload to his so that she could avoid being reprimanded for untimeliness.

On July 14, 2010, Donaldson was injured while attempting to restrain a patient involved in an altercation with another patient. He further asserts that while he was sitting in a wheelchair awaiting medical attention for his injury, Shawn Cureton, Psychology Manager, and Hancock presented him with a “third-level reminder” and placed him on decision-making leave for one workday.⁴ The accompanying memo identified the following performance issues in addition to those noted above:

• April 2010—Donaldson was provided with additional training regarding the data collection process and the writing of past due PBSPs.

• May 10, 2010—Donaldson failed to bring the necessary materials to a meeting with Kathleen Williamson, Psychology Manager, so that he could be re-trained regarding the collection of data and preparation of PBSPs after he missed these classes due to his medical treatment; Donaldson also failed to follow up with Williamson to schedule another meeting time. Donaldson asserts that Williamson left the training session because she had to attend another meeting and that when he asked her about re-scheduling the session she told him that it would have to wait until another time.

• June 2010—Donaldson failed to complete a Level of Need (LON) packet for a patient despite several email reminders and the assistance of two psychology assistants, resulting in another psychologist having to complete the packet before the submission deadline. Failure to timely submit LON packets can result in the loss of Medicaid funding for services for that individual. Donaldson contends that the patient in question was not on his caseload and that the psychologist to whom the patient was assigned completed the LON packet.

• July 14, 2010—Donaldson had six out-of-date programs, two of which were eighteen months overdue. Donaldson asserts that the programs were completed in the old format but that they were never converted into the current format.

After receiving the results of blood work and exams, David's cancer specialist recommended that he exercise his right to Family and Medical Leave Act (“FMLA”) leave. Donaldson alleges that Hancock contacted him while he was on leave to advise him that he was required to attend a meeting related to DADS's investigation of an administrative complaint. Donaldson asserts that Hancock cancelled the meeting the next day after the State Civil Rights Office contacted her to remind her of Donaldson's FMLA status. He further alleges that although Hancock knew Donaldson was unavailable to attend due to being on leave, she threatened him with termination if he did not report to the meeting, and that she continued to harass and threaten him during his leave.

On July 21 2010, Donaldson received another performance counseling for failing to prepare a PBSP for one of his patients who had arrived more than sixty days earlier. As a result, the patient did not have an action plan in place to help reduce the number of challenging behaviors. Donaldson was asked to develop a performance deficiency plan detailing how he intended to address five past-due PBSPs as well as improve his overall job performance. Donaldson never completed the assignment.

On September 8, 2010, while still on leave, Donaldson filed a complaint with the Health and Human Services Commission Civil Rights Office alleging that DADS discriminated against him based on age and disability after he was placed on a third-level reminder and denied immediate medical attention on July 14, 2010. Donaldson alleges that he was told by several co-workers that Hancock made several sarcastic comments during a staff meeting regarding Donaldson's discrimination complaint.

Donaldson alleges that when he returned to work following his FMLA leave in September 2010, he was assigned to work under another psychologist although DADS was short of psychologists. He further contends that although the new job restrictions outlined by his doctor in her September 2010 work status report did not directly impact his responsibilities as a psychologist, Hancock determined that DADS could not accommodate the job restrictions and, as a result, he was forced to take workers' compensation leave.

On November 12, 2010, Donaldson filed a charge of discrimination with the Equal Employment Opportunity Commission (“EEOC”).

Donaldson alleges that Amanda Bowen, a Caucasian female, was promoted to Associate Psychologist V on December 12, 2010, but that he did not receive a promotion.

When Donaldson returned to work in December 2010, he was assigned a partial caseload and placed under the supervision of Bradley–Schrick who micromanaged and excessively monitored him. He further alleges that although many procedures had changed during his absence, and despite advising management on repeated occasions that his injury, fatigue, and nausea were affecting his abilities to meet some of his responsibilities in a timely manner, DADS harassed him by trying to force him to learn an insurmountable amount of information in an unreasonably short period of time rather than reasonably accommodating him.

In January 2011, DADS assigned Donaldson to the Driscoll Gardens unit, a unit Donaldson claims was in disarray and had a backlog. According to Donaldson, DADS failed to give him the...