TCJL has filed an amicus brief in a case out of the Dallas Court of Appeals that could vastly expand the scope of Chapter 21, Labor Code, actions against employers for discrimination based on a “perceived” disability.
Dallas County Hospital District d/b/a Parkland Health and Hospital System v. Sheri Kowalski (No. 23-0431; No. 05-21-00379-CV; filed April 5, 2023) 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. First, Parkland asserted governmental immunity. Here the majority concluded 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. Parkland argued that plaintiff failed to produce any evidence of a disability since she neither she nor her chiropractor claimed that she had one. Furthermore, Parkland contended that the lack of evidence of a disability and the fact that plaintiff did not make an ADA complaint or request for accommodation foreclosed a finding that Parkland “regarded her as disabled” under the 2008 amendments to the ADA, which were incorporated into Chapter 21 in 2009. The majority, however, pieced together a series of circumstantial evidence that it determined raised a fact issue as to whether Parkland “regarded” plaintiff as disabled. This evidence centered largely on Parkland’s administrative process for evaluating ADA requests, which it applied inconsistently to similar employee requests. The majority further questioned the timing of the finance department’s restructuring, though there was no specific evidence that the two processes had anything to do with one another. Finally, the majority relief heavily on (arguably) hearsay in which plaintiff claimed another Parkland employee told her that Parkland “always” retaliates against employees claiming a disability.
Justice Miskel dissented. She argued that plaintiff’s own disclaimer of a disability eliminated her claim from Chapter 21 altogether since she asserted no protected activity under the statute. She would thus have granted the plea to the jurisdiction.
Our brief concurs with Justice Miskel’s analysis but takes a somewhat different tack to get there. We find 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 5th Circuit 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 urge SCOTX to accept review to give employers guidance about the circumstances in which the “perception” of impairment language may become operative. The way the majority interpreted it, however, entirely swallows § 21.051 if an employee alleges anyimpairment that an employer may “perceive.” We think it highly unlikely that the Legislature intended to gut § 21.051 to that extent.
Employers should pay close attention to this case. It has the potential to expand Chapter 21 in very significant and unpredictable ways. As we state 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.”
