In a case that leaves us scratching our heads a bit, the Houston [1st] Court of Appeals has given a plaintiff a second chance in an employment discrimination suit after her lawyer somehow didn’t notice a Rule 91a motion had been filed in the client’s case.
Jennifer Cook v. Memorial Hermann Health System (No. 01-23-00178-CV; June 19, 2025) arose from an employee’s employment discrimination lawsuit against Hermann Health. Plaintiff was pregnant during the months following the implementation of Hermann’s COVID-19 vaccination policy. Cook alleged that she submitted a request for a one-year medical exemption from this policy. Hermann granted the request for the period from August 9, 2021, to October 6, 2021. Cook gave birth on August 24 and asked for a twelve-week post-partum exemption on October 6 based on religious beliefs. Hermann extended her exemption to November 29, 2021. On November 11 Hermann placed her on a two-week suspension for refusing to be vaccinated. Cook alleged that Hermann “falsely claimed” she had “voluntarily resigned.”
Cook sued Hermann for religious and disability discrimination and for wrongful termination. Hermann answered with a general denial asserting several affirmative defenses, including Rule 91a and failure to exhaust administrative remedies. Cook didn’t respond to the Hermann’s answer, nor did she respond to Hermann’s request for attorney’s fees. The trial court signed an order dismissing the case and another order awarding Hermann’s attorney’s fees. Cook filed a Motion for a New Trial, citing that her counsel had “inadvertently” missed the Motion to Dismiss and application for attorney’s fees. Regarding her discrimination claims, she contended that she had no opportunity to amend her pleadings to reflect her exhaustion of administrative remedies. She produced a Determination and Notice of Rights letter from the EEOC in support of this argument. She further cited executive orders GA-40, GA-35, and GA–38, which barred employers from requiring employees to take COVID vaccinations as a condition of employment. The trial court didn’t hear her motion for new trial, which expired by operation of law. Cook appealed.
In an opinion by Justice Rivas-Molloy, the court of appeals affirmed in part and reversed in part. First, Cook argued on appeal that she had not waived her right to appeal the trial court’s dismissal of her public policy violation claim. The court, however, determined that Cook didn’t address the public policy argument on appeal with respect to the trial court’s Rule 91a motion, but only challenged the trial court’s ruling on her discrimination claims. Hermann argued further that Cook had no viable cause of action based on public policy, so she failed to negate the validity of each ground on which dismissal was granted. The court thus affirmed the trial court’s dismissal of this claim under Rule 91a.
Second, Cook argued that the trial court abused its discretion by not allowing her to amend her petition to reflect that she had exhausted her administrative remedies. Hermann countered that Rule 91a “provides specific and strict time constraints and deadlines, and that there is no ‘good cause’ exception to the deadlines imposed by the rule.” Here, Hermann argued, Cook did not attempt to amend her pleading until she requested leave one month after dismissal of the case. Cook next contended that the trial court “should have issued a ruling that her pleading was deficient and allowed her to maned her petition before granting” Hermann’s Rule 91a motion. The court agreed with Hermann, observing that “Cook was not precluded from amending her petition to address [Hermann’s] failure to exhaust argument. Indeed, Rule 91a expressly permits a non-movant to amend her petition prior to any ruling on a motion to dismiss.” But Cook had to ask for it and in a timely way. She did neither.
Turning to the denial of Cook’s motion for new trial, the court observed that to “secure a new trial after failing to respond to a Rule 91a motion, the movant must establish that her failure to respond was not intentional or the result of conscious indifference” (citations omitted). This determination required a “Craddock” review as set out in Craddock v. Sunshine Bus Lines, Inc., 133 S.W.2d 124 (Tex. 1939). Craddock’s multi-factor test looks to whether the failure to answer was the result of an accident or mistake, the motion for new trial sets up a meritorious defense, and granting the motion will not occasion undue delay or otherwise injure the non-defaulting party. The court accepted Cook’s counsel’s explanation for missing the email notifications of the filing of the motion to dismiss (he was engaged in a trial in another state), but counsel could not explain why he missed Hermann’s application for attorney’s fees. Here it appeared that the court flipped a coin and allowed Cook another bite at the apple under the first factor. As to the meritorious defense factor, Cook satisfied that by showing her Determination and Notice of Rights letter from EEOC. She thus exhausted her administrative remedies. Regarding the prejudice factor, Hermann, who had to the burden of proof to show injury, didn’t show anything, so the court went for Cook on this prong of the test as well. The court thus reversed the trial court’s judgment denying Cook’s motion for new trial on the discrimination claims and remanded.
While it may be true that plaintiff’s failure to respond to the Rule 91a motion was not intentional, we are mystified that the lawyer’s neglect got off so lightly. Do deadlines—and Rule 91a’s deadlines are specific and mandatory—mean anything? We understand that there should be some leeway under truly exigent circumstances, but missing a deadline because a lawyer is in another trial seems a bit much. All lawyers do a million things at once. Why should Hermann be punished for following the rules when the other side didn’t? Perhaps Hermann should have protested more than it did, but we don’t see why a defendant that follows the law should not be presumed to be injured by having to endure the cost and hassle of a lawsuit that, under the rule, should have gone away. This decision simply rewards attorney negligence and, on the other side of the coin, punishes attorneys who did the right thing for their client.
TCJL Research Intern Satchel Williams researched and substantially drafted this article. (The opinions stated in the last paragraph, however, are mine!)
