El Paso Cnty. Water Improvement Dist. No. 1 v. Trevizo
| Docket Number | 08-21-00206-CV |
| Decision Date | 27 October 2023 |
| Parties | EL PASO COUNTY WATER IMPROVEMENT DISTRICT NO. 1, Appellant, v. ROGELIO TREVIZO, Appellee. |
| Court | Texas Court of Appeals |
Appeal from the 243rd Judicial District Court of El Paso County Texas (TC# 2019DCV1164)
Before Rodriguez, C.J., Palafox, and Soto, JJ.
SUBSTITUTED OPINION
Appellant filed a motion for rehearing of this Court's January 27 2023 opinion. After requesting Appellee's response, we grant the motion for rehearing, deny Appellant's motion to supplement the record as moot, and withdraw our prior opinion and judgment in this case. The following is now the opinion of the Court. See TEX. R. APP. P. 49.3.
El Paso County Water Improvement District No. 1 (the District) appeals the trial court's denial of its plea to the jurisdiction in Rogelio Trevizo's age-and disability-discrimination, retaliation failure-to-accommodate, and hostile-work-environment suit. For the following reasons, we reverse and render judgment granting the District's plea to the jurisdiction and accordingly dismiss Trevizo's claims for want of jurisdiction.
The District is a political subdivision of the State of Texas that provides surface water from the Rio Grande River to water rights holders in El Paso County and assesses and collects taxes for those water rights. Trevizo worked for the District as an Equipment Operator from February 7, 2007 until his termination on October 8, 2018. As an Equipment Operator, Trevizo carried out a variety of manual work, including clearing brush, tree stumps, and rocks, as well as properly maintaining waterways, access roads, and associated structures. He also operated heavy equipment, including dump trucks, loaders, water trucks, and backhoes. His position involved working outside in extreme weather conditions.
On December 27, 2016, while the District was closed for holiday break, Trevizo was admitted to the hospital for numbness in his right leg. On January 8, 2017, Trevizo notified Lisa Aguilar, the District's human resources manager, that he would be unable to return to work following the holiday break due to a blood clot in his foot. Aguilar requested he provide a doctor's note, and on January 18, Trevizo provided a doctor's note stating he had been seen by his doctor on January 16, was excused from work for one day, and could return to work on January 17. However, the note did not list any of Trevizo's diagnoses or describe the nature of his medical condition.
Because Trevizo did not return to work on January 17, Aguilar sent him paperwork informing him he would be placed on leave under the Family Medical Leave Act. Trevizo returned the requisite health care provider's certification paperwork, which indicated he was being treated for pain in his "right lower extremity," and the probable duration of the condition was six months to one year. The paperwork also stated Trevizo should "limit excessive walking due to leg pain," and the condition would cause episodic flare ups as well as follow-up treatments.
On February 24, Trevizo provided a doctor's note stating he could return to work as of February 22 on "light duty." The District requested more specific information about any work restrictions, and on February 27, Trevizo returned a new doctor's note stating he could "return to regular duties with the exception of driving." Trevizo resumed performing all other functions of his job except for driving.
Trevizo alleges on February 27-the day he returned to work following his medical leave-his manager, Jesus Reyes, told him "that [he] needed to fix his attitude or find another job." Trevizo also claims Reyes said "at [his] age it would be difficult for [him] to find another job." He responded by filing a Charge of Discrimination with the Texas Workforce Commission Civil Rights Division and Equal Employment Opportunity Commission on March 3 for disability discrimination and retaliation. The EEOC issued its dismissal of the Charge and informed Trevizo of his right to sue on March 20.
On August 7, Trevizo provided another doctor's note to the District which released him to work with no restrictions, and he resumed driving heavy equipment as part of his job duties. Following his return to full duty, Trevizo claims he "was required to regularly perform harder work such as cement work, burning weeds, cutting trees, and fixing gates." He also alleges younger employees were allowed to work two additional days to earn compensatory time for the upcoming holiday season while he was allowed to work only one. On December 5, he responded by filing another Charge of Discrimination for age and disability discrimination, retaliation, failure to accommodate, hostile work environment, and harassment. In this Charge, Trevizo also stated he was "constantly being called in to the office for counseling regarding his attitude," which he characterized as retaliation for the complaints he made about management. On July 30, 2018, the EEOC issued Trevizo notice of his right to sue and informed him it was terminating its processing of the Charge.
Trevizo alleges that throughout 2018, the District regularly required him to drive the older work vehicles without functioning windows or air conditioners and with "various safety issues," which he states he brought to the District's attention. On October 4, 2018, Trevizo's supervisor, Pete Rodriguez, informed Trevizo he would be using an older dump truck because another District employee needed to use the new truck (to which Trevizo had originally been assigned) to get his Commercial Driver's License. Trevizo protested, claiming the older truck had unspecified safety issues, no functioning air conditioning, and got too hot. Rodriguez told him the job had to be done, so he could either drive the older truck or go home. Trevizo went home.
When Trevizo returned to work on October 8, the District terminated his employment for insubordination. At his termination meeting, Trevizo told the District employees for the first time the purported safety issue with the older truck related specifically to its brakes and reiterated the truck was hot because it did not have air conditioning. Trevizo also gave the District a notarized statement he wrote after he left work on October 4, stating that he "insisted that for safety issues the A/C needed to be repaired," and "the temperatures are extremely high" and "caus[e] a heat stroke." Trevizo's statement also noted he had "been having issues with [his] health and [] told [his] supervisor about this"; however, Rodriguez told him it was his choice to drive the truck or go home, which he states he did for his own safety. When asked at his deposition why he made the notarized statement after leaving work on October 4, Trevizo stated he did so because he was concerned there would be a repercussion for his refusal to drive the truck.
After his termination, Trevizo filed a third Charge of Discrimination on October 11, claiming age and disability discrimination, retaliation, failure to accommodate, hostile work environment, and harassment. The EEOC issued its dismissal and right to sue notice on March 22, 2019, and Trevizo filed this lawsuit shortly after. He alleges the District discriminated against him in violation of Chapter 21 of the Texas Labor Code (Chapter 21). Specifically, he alleges the District discriminated against him on the basis of his age[1] and disability,[2] denied him a reasonable accommodation, and retaliated against him, resulting in a hostile work environment. The District filed a combined plea to the jurisdiction and motion for summary judgment based on sovereign immunity, which the trial court denied without explanation in a brief order. The District appealed. See TEX. CIV. PRAC. & REM. CODE § 51.014(a)(8) ().
Governmental units, like the District, enjoy sovereign immunity from lawsuits except where the Legislature waives immunity. Flores v. Tex. Dep't of Criminal Justice, 634 S.W.3d 440, 450 (Tex. App.-El Paso 2021, no pet.) (citing Tex. Parks & Wildlife Dep't v. Sawyer Trust 354 S.W.3d 384, 388 (Tex. 2011)). Sovereign immunity deprives a trial court of subject matter jurisdiction. Mission Consol. Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629, 636 (Tex. 2012). The Legislature has provided a limited waiver of immunity for claims brought against governmental units under Chapter 21. Id. However, the waiver extends only to suits in which the pleadings state a prima facie claim for an actual violation. Tex. Dep't of Criminal Justice v. Flores, 555 S.W.3d 656, 661 (Tex. App.-El Paso 2018, no pet.) (citing Garcia, 372 S.W.3d at 636). If the plaintiff fails to state a prima facie case, the governmental unit retains its immunity from suit. Id. (citing Garcia, 372 S.W.3d at 636).
A defendant may challenge subject matter jurisdiction through a plea to the jurisdiction. Flores, 634 S.W.3d at 450 (citing Tex. Dep't of Parks & Wildlife v Miranda, 133 S.W.3d 217, 225- 26 (Tex. 2004)). The plea can attack both the pleaded facts as well as the existence of jurisdictional facts by attaching evidence to the plea. Id. (citing Miranda, 133 S.W.3d at 226-27). We construe the pleadings liberally in favor of the plaintiff. City of El Paso v. Heinrich, 284 S.W.3d 366, 378 (Tex. 2009) (citation omitted). When there is no question of fact as to the jurisdictional issue, the trial court rules on the plea as a matter of law. Flores, 634 S.W.3d at 450 (citing Heinrich, 284 S.W.3d at 378). However, when the defendant challenges the existence of jurisdictional facts, the...
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