The Texas Supreme Court has reversed a Dallas Court of Appeals opinion holding that an employee could pursue a Chapter 21 action for disability discrimination and retaliation against her employer even though she repeatedly denied having a disability. TCJL filed an amicus brief in the case because had the court of appeals opinion stood, it could have vastly expanded the scope of such actions.
Dallas County Hospital District d/b/a Parkland Health and Hospital System v. Sheri Kowalski (No. 23-0431; December 31, 2024) arose from the termination of an employee’s position at Parkland Hospital. Complaining of neck and upper back strain, the employee requested a keyboard and mouse tray. Her supervisor approved the request and notified Parkland’s human resource department. Following Parkland’s established procedure, the department included the hospital’s occupational health office and its third-party leave management administrator for purposes of processing a reasonable accommodation request pursuant to the ADA. The employee had her physician fill out the accommodation request and reported to the department that she was not making an accommodation request based on a disability. Her physician likewise reported that she did not have a disability.
While this process was ongoing, the executive in charge of Parkland’s finance department, where the employee worked, commenced a restructuring that eliminated the employee’s position. The employee was invited to apply for another open position or for a newly created Controller position. She was also offered a severance package. Rather than doing that, the employee filed a complaint with the EEOC alleging discrimination and retaliation based on her request for a keyboard tray. She also sued Parkland pursuant to Chapter 21, Labor Code, for unlawful termination and retaliation based on a disability. Parkland filed a plea to the jurisdiction, which the trial court denied. Parkland appealed. In a 2-1 decision, the Dallas Court of Appeals affirmed, holding that the plaintiff had produced more than a scintilla of evidence raising a genuine issue of material fact on her unlawful termination and retaliation claims.
In a per curiam opinion, SCOTX reversed and dismissed the case on jurisdictional grounds. First, the Court held that Plaintiff could not sustain a straightforward disability claim because she produced no evidence of “an impairment that substantially limits at least one major life activity,” as Chapter 21 requires. While Plaintiff claimed that she had difficulties with severe neck pain that interfered with her everyday activities, she did not prove that her pain made it impossible “to complete . . . any of the tasks or activities she describes.” Indeed, both Plaintiff and her chiropractor denied that she was, in fact, disabled under that definition. The Court admonished the court of appeals for failing to apply the statute as written because “[a]llowing claims of mild discomfort to qualify as disabilities would substantially lower a plaintiff’s burden below the Labor Code’s requirements. Everyone could claim a disability if that were true because everyone could be made more comfortable.”
As to Plaintiff’s “regarded-as” claim, Plaintiff likewise failed to produce any evidence that Parkland “regarded” her as disabled. Again, both she and her chiropractor denied that she was disabled. As the Court pointed out, she changed her mind during the litigation and “credit[ed] her attorneys for changing her understanding of the term.” Same goes for her retaliation claim: Plaintiff failed to “meaningfully allege disparate treatment based on disability.” Nor did Plaintiff’s communications with Parkland during the process of requesting accommodation for her neck pain put the hospital on notice that she claimed a disability. She thus failed to make a prima facie case as Chapter 21 mandates.
Justice Miskel dissented in the court of appeals. She asserted that plaintiff’s own disclaimer of a disability eliminated her claim from Chapter 21 altogether since she asserted no protected activity under the statute. Our brief concurred with Justice Miskel’s analysis but took a somewhat different tack to get there. We found fault with the majority’s interpretation of the statute and the conforming amendments made by the Legislature in 2011. First, § 21.051, Labor Code, creates a cause of action for an unlawful employment practice only if, among other things, an employer discriminates against an employee “because of . . . disability.” Sec. 21.002(6) defines “disability” as “a mental or physical impairment that substantially limits at least one major life activity of that individual, a record of such an impairment, or being regarded has having such impairment.” On its face, then, to assert a cognizable cause of action under the statute, a plaintiff must establish a “disability.” The court of appeals’ majority escaped this conclusion by pointing to § 21.002(12-a), which defines “regarded as having such an impairment” to mean an “actual or perceived physical or mental impairment … regardless of whether the impairment limits or is perceived to limit a major life activity.” Relying on 5thCircuit authority interpreting the 2008 ADA amends, which added similar language to federal law, the majority in effect swept away § 21.051, which the Legislature did not amend in 2009 and which continues to require a showing of a “disability.” And since plaintiff filed this lawsuit under Chapter 21, not the ADA, § 21.051 should control. As to the effect of the definition of “regarded as having such an impairment,” we urged SCOTX to accept review to give employers guidance about the circumstances in which the “perception” of impairment language may become operative.
Employers should be relieved that SCOTX corrected this erroneous decision. As we stated in our brief, “[l]eaving the statute in a state of confusion is a recipe for copycat litigation that, based on our nearly four decades of experience in the civil justice arena, is certain to occur.” That risk has thankfully been averted.
