Univ. of Tex. Sw. Med. Ctr. v. Saunders
| Decision Date | 13 July 2016 |
| Docket Number | No. 05-15-01543-CV,05-15-01543-CV |
| Parties | UNIVERSITY OF TEXAS SOUTHWESTERN MEDICAL CENTER, Appellant/Cross-Appellee v. KIMBERLY A. SAUNDERS, Appellee/Cross-Appellant |
| Court | Texas Court of Appeals |
On Appeal from the 191st Judicial District Court Dallas County, Texas
Before Justices Francis, Fillmore, and Schenck
Opinion by Justice Fillmore
Appellant/cross-appellee University of Texas Southwestern Medical Center (UTSW) filed an interlocutory appeal of the trial court's order denying its plea to the jurisdiction on appellee/cross-appellant Kimberly A. Saunders's retaliatory discharge claim, and Saunders filed an interlocutory appeal of the trial court's order granting UTSW's plea to the jurisdiction on her disability discrimination claim. We reverse the trial court's order denying UTSW's plea to the jurisdiction on Saunders's retaliatory discharge claim, affirm the trial court's order granting UTSW's plea to the jurisdiction on Saunder's disability discrimination claim, and render judgment dismissing this cause for lack of jurisdiction.
Saunders was injured on the job on or about July 17, 2010, while employed by UTSW as a registered nurse in the Intensive Care Unit at University Hospital St. Paul. She was disabled as a result of her injury, and she submitted a Formal Request for Accommodation Due to Disability to UTSW's Office of Equal Opportunity on April 2, 2013. UTSW offered Saunders a position reassignment, which she accepted. She began work in the reassigned position of Patient & Physician Referral Registered Nurse (PPRRN) on August 5, 2013. On March 7, 2014, Saunders filed a complaint of disability discrimination by UTSW with the Texas Workforce Commission (TWC) and the United States Equal Employment Opportunity Commission (EEOC) based on UTSW's alleged failure to make a reasonable accommodation for Saunders's disability.
On August 21, 2014, Saunders filed a lawsuit against UTSW in a district court of Dallas County, Texas, alleging disability discrimination in violation of the Americans with Disabilities Act of 1990 (ADA)1 as a result of UTSW's failure to make a reasonable accommodation for her disability, and that lawsuit was removed to federal court by UTSW (the federal lawsuit).2 On December 1, 2014, Saunders's employment was terminated by UTSW3 because Saunders's nursing license had lapsed for a period of eleven months while she worked as a PPRRN, a position that required a valid nursing license.
On April 15, 2015, Saunders filed this suit against UTSW in a district court of Dallas County, alleging UTSW terminated her employment in retaliation for filing the disability discrimination complaint. She later amended her petition to add an allegation that UTSW failed to make a reasonable accommodation for her disability by reassigning her to the position ofPPRRN. UTSW filed a plea to the jurisdiction on Saunders's claims. UTSW appeals the trial court's order denying its plea to the jurisdiction on Saunders's retaliatory discharge claim, and Saunders appeals the trial court's order granting UTSW's plea to the jurisdiction on her disability discrimination claim.
A plea to the jurisdiction is a dilatory plea that seeks dismissal of a case for lack of subject matter jurisdiction. Harris Cty. v. Sykes, 136 S.W.3d 635, 638 (Tex. 2004). Because subject matter jurisdiction presents a question of law, we review a trial court's ruling on a plea to the jurisdiction de novo. See Westbrook v. Penley, 231 S.W.3d 389, 394 (Tex. 2007); Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004).
It is the plaintiff's burden to plead facts that affirmatively establish the trial court's subject matter jurisdiction. Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993). When a plea to the jurisdiction challenges the pleadings, we determine if the pleader has alleged facts that affirmatively demonstrate the court's jurisdiction to hear the case. Miranda, 133 S.W.3d at 226 (). In determining whether the plaintiff has met this burden, we look to the allegations in the plaintiff's pleadings, construe them liberally in favor of the plaintiff, and look to the pleader's intent. Id. While we must construe the allegations in favor of the plaintiff, we are not bound by legal conclusions. City of Pasadena v. Kuhn, 260 S.W.3d 93, 95 (Tex. App.—Houston [1st Dist.] 2008, no pet.).
If a plea to the jurisdiction challenges the existence of jurisdictional facts, we consider relevant evidence submitted by the parties when necessary to resolve the jurisdictional issues that are raised. Miranda, 133 S.W.3d at 227. The standard of review of a plea to the jurisdiction based on evidence "generally mirrors that of a summary judgment under Texas Rule of CivilProcedure 166a(c)." Id. at 228. Under this standard, we take as true all evidence favoring the nonmovant and draw all reasonable inferences and resolve any doubts in the nonmovant's favor. Id.
Governmental entities are immune from suit unless the government has clearly and unambiguously waived its immunity. See TEX. GOV'T CODE ANN. § 311.034 (West 2013); Miranda, 133 S.W.3d at 224. Chapter 21 of the Texas Labor Code4 provides that an employer commits an unlawful employment practice if, because of disability, the employer discharges or otherwise discriminates against an individual in connection with compensation or the terms, conditions, or privileges of employment. TEX. LAB. CODE ANN. § 21.051(1) (West 2015). An employer also commits an unlawful employment practice by refusing to make a reasonable workplace accommodation for the disability of a qualified employee, unless the accommodation would impose undue hardship on the operation of the employer's business. Id. § 21.128(a). The term "employer" as used in chapter 21 includes state agencies. Id. § 21.002(8). The State of Texas waives its immunity from suit when the plaintiff states a claim for conduct that would violate chapter 21 of the Texas Labor Code. Mission Consol. Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629, 637 (Tex. 2012).
In a single issue, UTSW appeals the trial court's order denying its plea to the jurisdiction on Saunders's retaliatory discharge claim. UTSW argues Saunders failed to meet her prima facie burden to support her claim of retaliatory discharge by UTSW.
To establish a prima facie case of retaliation, a plaintiff is required to show that (1) she engaged in a protected activity; (2) an adverse employment action occurred; and (3) a causal link connected the protected activity and the adverse employment action. Dias v. Goodman Mfg. Co., 214 S.W.3d 672, 676 (Tex. App.—Houston [14th Dist.] 2007, pet. denied); Pineda v. United Parcel Serv., Inc., 360 F.3d 483, 487 (5th Cir. 2004).5 Protected activities consist of (1) opposing a discriminatory practice; (2) making or filing a charge; (3) filing a complaint; or (4) testifying, assisting, or participating in any manner in an investigation, proceeding, or hearing. See TEX. LAB. CODE ANN. § 21.055 (West 2015); City of Waco v. Lopez, 259 S.W.3d 147, 150 (Tex. 2008). A plaintiff asserting a retaliation claim must establish that, in the absence of her protected activity, the employer's prohibited conduct would not have occurred when it did. Chandler v. CSC Applied Techs., LLC, 376 S.W.3d 802, 823 (Tex. App.—Houston [1st Dist.] 2012, pet. denied). If a plaintiff establishes a prima facie case of retaliation, the burden then shifts to the employer to demonstrate a legitimate nondiscriminatory purpose for the adverse employment action. Dias, 214 S.W.3d at 676.
Saunders's employment at UTSW was terminated because her nursing license had lapsed while she was working as a PPRRN, a position that required a valid nursing license. In support of her retaliatory discharge claim, Saunders pleaded that in the circumstance where a nurse's license had lapsed, UTSW's "customary practice is to suspend nurses until the [nursing] license is obtained" and that UTSW "had done this for other suspended nurses." However, she provided no evidence to support these statements in her pleadings that would establish a causal link between her discharge and her discrimination claim or lawsuit against UTSW.
Saunders does not dispute that her nursing license lapsed and that she worked in a position at UTSW that required a valid nursing license during the period of lapse. In her appellate brief, Saunders states her pleading that the "customary practice" of UTSW is to suspend, rather than terminate, a nurse whose license had lapsed is "circumstantial evidence" of a causal connection between her complaint of discrimination and her termination. See Crutcher v. Dallas Indep. Sch. Dist., 410 S.W.3d 487, 494 (Tex. App.—Dallas 2013, no pet.) (circumstantial evidence sufficient to show causal link between adverse employment decision and filing of discrimination charge or suit may include employer's failure to follow its usual policy and procedures in carrying out the challenged employment actions or discriminatory treatment in comparison to similarly situated employees). However, pleadings are not evidence. Hidalgo v. Sur. Sav. & Loan Ass'n, 462 S.W.2d 540, 543 (Tex. 1971) (); San Miguel v. City of Windcrest, 40 S.W.3d 104, 111 (Tex. App.—San Antonio 2000, no pet.) (pleadings are not evidence); see also Smith v. Albertson's Inc., 251 F.3d 157, 2001 WL 300784, at *3 (5th Cir. 2001) (per curiam) () ("Other than self-serving statements and unsub-stantiated [sic] assertions, Smith offers no admissible evidence of any causal link between his termination and his filing a complaint with...
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