Santos v. Heldenfels Enters., Inc.

• Citation: 632 S.W.3d 584
• Decision Date: 18 August 2020
• Docket Number: No. 08-19-00113-CV,08-19-00113-CV
• Parties: Ricardo DE LOS SANTOS, Appellant, v. HELDENFELS ENTERPRISES, INC., Appellee.
• Court: Court of Appeals of Texas

632 S.W.3d 584

Ricardo DE LOS SANTOS, Appellant,

v.HELDENFELS ENTERPRISES, INC., Appellee.

No. 08-19-00113-CV

Court of Appeals of Texas, El Paso.

August 18, 2020

ATTORNEY FOR APPELLANT: Justin Reyes, Katzman & Katzman, P.L.L.C., 21022 Gathering Oak, San Antonio, TX 78260.

ATTORNEY FOR APPELLEE: Keith B. Sieczkowski, Branscomb, PLLC, 802 N. Carancahua, Ste. 1900, Corpus Christi, TX 78401.

Before Alley, C.J., Rodriguez, and Palafox, JJ.

OPINION

JEFF ALLEY, Chief Justice

This appeal addresses the question of whether the National Labor Relations Board (NLRB) has preemptive jurisdiction over Ricardo De Los Santos's disability discrimination and retaliation causes of action brought in state court. De Los Santos filed suit alleging disability discrimination and retaliation under the Texas Commission on Human Rights Act (TCHRA) against his employer, Heldenfels Enterprises, Inc. (HEI). HEI filed a plea to the jurisdiction in which it asserted that the alleged wrongful conduct that De Los Santos raised in his petition brought the actions within the jurisdiction of the NLRB which enforces the National Labor Relations Act (NLRA). The paradox of the issue is that the employer, HEI, is confessing the possibility that it violated the NLRA, thus giving the NLRB exclusive jurisdiction, while the employee, De Los Santos, disclaims any relief under the NLRA.

The trial court granted HEI's plea to the jurisdiction and dismissed both of De Los Santos's causes of action with prejudice. Based on the record, we affirm as to the retaliation claim with one modification, but reverse as to the disability discrimination claim.

I. FACTUAL AND PROCEDURAL BACKGROUND

From De Los Santos's Original Petition, we glean the following allegations. De Los Santos worked as the supervisor of the receiving department at HEI. During his employment, De Los Santos advised HEI that he suffered from spinal arthritis

. In 2014, his doctor prescribed hydrocodone for the condition, and De Los Santos advised HEI that he had begun taking the medication. De Los Santos regularly provided "monthly copies of [his] prescribed medication" to HEI management and took multiple drug tests during his employment with positive results for hydrocodone. De Los Santos continued performing work duties at HEI and claims that taking his medication neither affected his ability to work safely nor resulted in the issuance of any disciplinary warnings or reprimands for his performance.

In January 2016, Abel Sotelo--another HEI employee--presented De Los Santos a petition advocating that employees should receive more vacation time from HEI. De Los Santos considered Sotelo's vacation petition to be inappropriate and delivered the petition to HEI's human resource director. Sotelo admitted that he was the only person responsible for circulating the vacation petition, and indeed, his is the only signature on the petition. However, HEI then suspended both Sotelo and De Los Santos for "disruption in the workplace." Approximately three days later, HEI staff met with Sotelo and De Los Santos. HEI allowed Sotelo to return to work but conditioned De Los Santos's return to work on his "being free of physical work restrictions" and cessation of narcotic pain medication. During the meeting, an HEI staff member allegedly told De Los Santos that he "was getting old due to arthritis

." HEI's Human Resources Manager wrote a letter to De Los Santos's doctor advising the doctor that it was in De Los Santos's best interest to switch to a non-narcotic medication. According to the letter, De Los Santos would not be permitted to return to work if he had any type of work restriction or required narcotics to manage his pain.

De Los Santos filed a charge with the Equal Employment Opportunity Commission (EEOC) asserting discrimination based on disability and retaliation. In his charging document, De Los Santos set out a thumbnail summary of the facts recited above, including that he had informed HEI management about the vacation petition, he had been suspended, and HEI's reason for its adverse action was "[p]rescribed medication creates a safety issue." He concluded that HEI had discriminated against him based on disability in violation of the Americans with Disabilities Act of 1990 (ADA), and had retaliated against him in violation of § 704(a) of Title VII of the Civil Rights Act of 1964.

After receipt of a right to sue notice from the EEOC, De Los Santos filed his petition in state court asserting a TCHRA disability discrimination and retaliation claim. De Los Santos's petition only alleges state-based disability-discrimination and retaliation causes of action under the TCHRA and only seeks to recover damages available to him under the TCHRA.

HEI filed a plea to the jurisdiction in which it asserted that the NLRB has exclusive jurisdiction to address an employee's claims that are (1) arguably protected employee-activities, or (2) arguably prohibited employer-conduct that interferes with protected activities under the NLRA. The plea attached De Los Santos's deposition where he stated his belief that HEI's discriminatory and retaliatory acts were "triggered" by his delivery of Sotelo's petition to HEI management. HEI asserted that De Los Santos's act of delivering Sotelo's petition to HEI management was a protected activity governed by the NLRA. HEI argued that it does not matter that De Los Santos only brought his causes of action under the TCHRA because the employer's acts arguably constitute a violation of the NLRA which the NLRB is intended to address. It further contended that HEI's motive for its action and whether it was based on Sotelo's petition are issues to be addressed exclusively by the NLRB. Following a non-evidentiary hearing, the trial court granted HEI's motion, and dismissed the case with prejudice.

II. DISCUSSION

In a single issue, De Los Santos complains that the trial court erred in granting HEI's plea to the jurisdiction because he has asserted disability discrimination and retaliation complaints "solely under Texas law to the exclusion of any [f]ederal law."

A. Standard of Review

HEI raised the preemption issue through a plea to the jurisdiction, which challenges the trial court's jurisdiction over the subject matter of a pleaded cause of action. Tex. Dep't of Parks & Wildlife v. Miranda , 133 S.W.3d 217, 226 (Tex. 2004) ; Castillo v. Brownsville-Valley Reg'l Med. Ctr., Inc. , 421 S.W.3d 263, 269 (Tex.App.--Corpus Christi 2013, no pet.) (NLRA preemption raised through plea to the jurisdiction). We review de novo a trial court's ruling on a plea to the jurisdiction. Miranda , 133 S.W.3d at 226.

A plea to the jurisdiction may challenge the pleadings, the existence of jurisdictional facts, or both. Alamo Heights Indep. Sch. Dist. v. Clark , 544 S.W.3d 755, 770 (Tex. 2018). When a jurisdictional plea challenges the pleadings, we determine whether the plaintiff has alleged facts affirmatively demonstrating subject-matter jurisdiction. Id. In doing so, we construe the pleadings in the plaintiff's favor and look to the pleader's intent. Miranda , 133 S.W.3d at 226. If the plaintiff's pleadings do not contain sufficient facts to affirmatively demonstrate the trial court's jurisdiction, but do not affirmatively demonstrate incurable defects in jurisdiction, the issue is one of pleading sufficiency and the plaintiff should be afforded the opportunity to amend. Id. at 226-27. If the plaintiff's pleadings affirmatively negate the existence of jurisdiction, then a plea to the jurisdiction may be granted without allowing the plaintiff an opportunity to amend. Id. at 227.

If the plea challenges the existence of jurisdictional facts, we consider evidence when necessary to resolve the jurisdictional issues, even if the evidence implicates both subject-matter jurisdiction and the merits of a claim. Alamo Heights Indep. Sch. Dist. , 544 S.W.3d at 771. When the jurisdictional plea challenges the existence of jurisdictional facts with supporting evidence, the standard of review mirrors that of a traditional summary judgment. Id.

B. Applicable Law

1. The NLRA preemption doctrine

In 1935, Congress passed the National Labor Relations Act to encourage collective bargaining and protect the exercise of workers' "freedom of association, self-organization, and designation of representatives of their own choosing, for the purpose of negotiating the terms and conditions of their employment or other mutual aid or protection." 29 U.S.C.A. § 151 (West 2020). The NLRA itself contains no express provision preempting state laws, and it regulates in an area of law traditionally regulated by the states; accordingly any NLRA preemption analysis starts "with the basic assumption that Congress did not intend to displace state law." Building and Constr. Trades Council of Metro. Dist. v. Associated Builders and Contractors of Mass./R.I., Inc. , 507 U.S. 218, 224, 113 S.Ct. 1190, 122 L.Ed.2d 565 (1993), quoting Maryland v. Louisiana , 451 U.S. 725, 746, 101 S.Ct. 2114, 68 L.Ed.2d 576 (1981).

Nonetheless, courts have found state laws impliedly preempted by conflict with the NLRA on the ground that the state law stands "as an obstacle to the accomplishment and execution of the full purposes and objectives" of Congress.¹ See, e.g., Livadas v. Bradshaw , 512 U.S. 107, 120, 134-35, 114 S.Ct. 2068, 129 L.Ed.2d 93, (1994) (holding a state policy declining to compel payment of wages immediately upon an employee's discharge was preempted by NLRA); Ex parte Twedell , 158 Tex. 214, 309 S.W.2d 834, 842-45 (1958) (holding state court was without jurisdiction to enjoin picketing of business). But when addressing preemption claims, "our sole task is to ascertain the intent of Congress." Cal. Fed. Sav. & Loan Ass'n v. Guerra , 479 U.S. 272, 280, 107 S.Ct. 683, 93 L.Ed.2d 613 (1987). "[P]re-emption is not to be lightly presumed." Id. at 281, 107 S.Ct. 683.

The Supreme Court has articulated two doctrines for determining whether the NLRA preempts state regulations...