Tex. Tech Univ. Health Scis. Ctr. El Paso v. Niehay

Citation641 S.W.3d 761
Decision Date31 January 2022
Docket Number08-19-00201-CV
CourtTexas Court of Appeals

ATTORNEY FOR APPELLANT: Jeffrey E. Farrell, Assistant Attorney General, General Litigation Division - 019, P.O. Box 12548, Capitol Station, Austin, TX 78711-2548.

ATTORNEY FOR APPELLEE: Dorian Vandenberg-Rodes, Shellist Lazarz Slobin LLP, 11 Greenway Plaza, Ste. 1515, Houston, TX 77046.

Before Rodriguez, Alley, and Ferguson, JJ., Ferguson, Judge (sitting by assignment)



Texas Tech University Health Sciences Center-El Paso (Texas Tech) filed this interlocutory appeal challenging the trial court's denial of a combined Plea to the Jurisdiction and Motion for Summary Judgment, seeking dismissal of a lawsuit filed by Appellee Dr. Lindsey Niehay. Dr. Niehay's suit alleges that she was wrongfully terminated from an emergency medicine residency program because of a perceived impairment, which she identified as morbid obesity

. We must decide whether morbid obesity can be considered a disability under the Texas Commission on Human Rights Act (TCHRA) in a "regarded as" claim, absent evidence that the employer believed the morbid obesity resulted from an underlying physiological cause. If so, we must then decide whether the appellate record contains some evidence that Texas Tech: (1) actually viewed her as having an impairment under the TCHRA, and (2) terminated her because of that perceived impairment, rather than for other non-discriminatory reasons. To do so, we must address two subsidiary issues: (a) who was the actual decision-maker, and (b) whether the trial court erred in considering statements allegedly protected by the attorney-client privilege.

We hold that in a "regarded as" case asserting "perceived physical impairment" from morbid obesity

, the claimant need not show that the employer believed the perceived impairment arose from a physiological cause. We find that there was some evidence that the Associate Program Director, Dr. Radosveta Wells was the actual decision-maker, or at least influenced the relevant decision-makers, and that the attorney-client privilege was waived as to the contested statements attributed to Texas Tech's in-house legal counsel. We ultimately conclude, under the favorable standard of review afforded the claimant's evidence, that Dr. Niehay offered some evidence for each challenged element of her cause of action. Accordingly, we affirm.

A. The Discrimination Charge and Lawsuit

Dr. Niehay filed a charge of discrimination with the Texas Workforce Commission and the EEOC alleging discrimination based on the disability of morbid obesity

. She stated that Texas Tech suspended her on April 1, 2016 from clinical activities for unspecified complaints it had received the month before, and that she was terminated from her employment as a resident physician on April 21, 2016 due to her disability.

Upon receiving a right-to-sue letter, Dr. Niehay filed her lawsuit alleging that Texas Tech had violated the TCHRA by terminating her on the basis of her alleged disability, i.e., morbid obesity

. The petition asserts that a disability includes either (a) having a mental or physical impairment that substantially limits at least one major life activity, or (b) being regarded as having such an impairment. She sought back and front pay, actual and compensatory and punitive damages, as well as attorney fees and costs. Based on the timing of her EEOC complaint, the claim is limited to her termination from the program.

B. The Plea to the Jurisdiction/Motion for Summary Judgment

Following 19 months of discovery, Texas Tech filed a combined Plea to the Jurisdiction and Motion for Summary Judgment (with both traditional and no-evidence grounds), which we shorthand as the "Plea." The Plea asserts that Dr. Niehay failed to produce sufficient evidence of a valid claim of discrimination under the TCHRA--a necessary predicate to waive Texas Tech's sovereign immunity--on three grounds relevant here:

(1) Dr. Niehay lacks proof that she was actually disabled or was regarded as disabled, which are essential elements of her prima facie case;
(2) Dr. Niehay cannot establish that she was terminated because of any alleged disability; and
(3) Dr. Niehay cannot raise a genuine issue of fact to rebut Texas Tech's claim that it had legitimate, nondiscriminatory reasons for its employment action.

The Plea and Dr. Niehay's response address the threshold legal question of whether morbid obesity

can be considered an impairment under the TCHRA without evidence of an underlying physiological cause. Beyond that, the parties disputed three factual issues: the identity of the decision-maker in Dr. Niehay's termination, whether Texas Tech viewed her as impaired, and whether Texas Tech had non-discriminatory reasons for the termination. Finally, Texas Tech objected to the inclusion of certain attorney-client communications in the summary judgment record.

The trial court denied the Plea, and this appeal followed.


Sovereign immunity protects the State and its political subdivisions from lawsuits for money damages unless the State waives that immunity. Chambers-Liberty Ctys. Navigation Dist. v. State , 575 S.W.3d 339, 344 (Tex. 2019). State universities, such as Texas Tech, are considered state agencies for purposes of sovereign immunity. See Lowe v. Texas Tech Univ. , 540 S.W.2d 297, 298 (Tex. 1976) (recognizing that a state agency, such as Texas Tech, has sovereign immunity from suit). Whether immunity has been waived, and whether the court has subject matter jurisdiction to hear a claim against the State, is a question of law. Texas Natural Res. Conservation Comm'n v. IT-Davy , 74 S.W.3d 849, 855 (Tex. 2002).

The State may waive its immunity by legislative enactment. See Chambers-Liberty , 575 S.W.3d at 344. And it has done so in the TCHRA. See Mission Consol. Indep. Sch. Dist. v. Garcia , 372 S.W.3d 629, 637 (Tex. 2012), citing to TEX.LAB.CODE ANN. § 21.054. However, a plaintiff must allege a valid TCHRA claim, or if properly challenged, raise some jurisdictional evidence to support a valid claim; otherwise a court is obligated to dismiss the claim for want of subject matter jurisdiction. Garcia , 372 S.W.3d at 637. The burden to establish jurisdiction, including a waiver of immunity from suit, falls on the plaintiff. Town of Shady Shores v. Swanson , 590 S.W.3d 544, 550 (Tex. 2019).

Whether immunity to suit is waived is properly asserted in a plea to the jurisdiction. Texas Dep't of Parks & Wildlife v. Miranda , 133 S.W.3d 217, 226 (Tex. 2004) (noting use of a plea to the jurisdiction and how it mirrors a summary judgment). The issue may also be raised in a motion for summary judgment. See Town of Shady Shores , 590 S.W.3d at 550 (permitting "no evidence" motion for summary judgment); State v. Lueck , 290 S.W.3d 876, 884 (Tex. 2009) (traditional motion for summary judgment). For each, we must determine whether more than a scintilla of evidence creates a genuine issue of material fact to support the disputed elements of the claim. To defeat a plea to the jurisdiction based on the lack of jurisdictional evidence, the non-movant need only present some evidence tending to establish each challenged jurisdictional fact. Miranda , 133 S.W.3d at 228 ("[W]e simply require the plaintiffs, when the facts underlying the merits and subject matter jurisdiction are intertwined, to show that there is a disputed material fact regarding the jurisdictional issue."). To obtain a traditional summary judgment, the movant must produce evidence demonstrating the absence of a genuine issue of material fact and that it is entitled to judgment as a matter of law. TEX.R.CIV.P. 166a(c) ; Nixon v. Mr. Prop. Mgmt. Co. , 690 S.W.2d 546, 548 (Tex. 1985). And if it does so, the non-movant is then entitled to rebut such a claim by advancing evidence establishing a genuine issue of material fact. Id. If presented as a Rule 166a(i) "no evidence" motion for summary judgment, the non-movant must produce evidence raising only a genuine issue of material fact on any challenged element. TEX.R.CIV.P. 166a(i).

Thus, for all three challenges raised by Texas Tech, we must determine whether Dr. Niehay raised "some evidence" establishing a genuine issue of material fact for each of the elements of her TCHRA claim that Texas Tech challenges. Some evidence means "more than a scintilla of evidence establishing the existence of the challenged element[.]"

Ford Motor Co. v. Ridgway , 135 S.W.3d 598, 600 (Tex. 2004). Dr. Niehay is not required at this stage to "marshal" all her evidence or to prove up her entire case. Town of Shady Shores , 590 S.W.3d at 550. We view the evidence in the light most favorable to Dr. Niehay. Alamo Heights Indep. Sch. Dist. v. Clark , 544 S.W.3d 755, 771 (Tex. 2018) ("In determining whether a material fact issue exists, we must take as true all evidence favorable to the plaintiff, indulging every reasonable inference and resolving any doubts in the plaintiff's favor. In doing so, however, we cannot disregard evidence necessary to show context, and we cannot disregard evidence and inferences unfavorable to the plaintiff if reasonable jurors could not.").


With that standard in mind, we recite the evidence in the light most favorable to Dr. Niehay, acknowledging that none of these matters have been proven before a fact finder, and noting that for most of the critical assertions, Texas Tech advances conflicting evidence and testimony. We also recite some of Texas Tech's evidence relevant to its claimed reason for terminating Dr. Niehay from its program.

A. Dr. Niehay's Residency

In July 2015, Texas Tech accepted Dr. Niehay into the Department of Emergency Medicine (the EM Department) residency program; Dr. Niehay had just graduated from Texas Tech School of Medicine. She was one of...

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