                                                                              ACCEPTED
                                                                          04-15-00042-CV
                                                              FOURTH COURT OF APPEALS
                                                                   SAN ANTONIO, TEXAS
                                                                     5/12/2015 5:00:26 PM
                                                                           KEITH HOTTLE
                                                                                   CLERK

                   No. 04-15-00042-CV

                  In the Court of Appeals                 FILED IN
                                                   4th COURT OF APPEALS
              for the Fourth Judicial District      SAN ANTONIO, TEXAS
                    San Antonio, Texas             5/12/2015 5:00:26 PM
                                                     KEITH E. HOTTLE
                                                           Clerk

     TEXAS DEPARTMENT OF STATE HEALTH SERVICES,
                                      Appellant,
                             v.

                    AMY W. ROCKWOOD
                                      Appellee.


  On Interlocutory Appeal from Cause No. 2011CI-04447
    in the 166th District Court of Bexar County, Texas


               APPELLANT’S REPLY BRIEF


KEN PAXTON                        DREW L. HARRIS
Attorney General of Texas         Assistant Attorney General
                                  State Bar No. 24057887
CHARLES E. ROY
First Assistant Attorney          OFFICE OF THE ATTORNEY GENERAL
General                           P.O. Box 12548
                                  Austin, Texas 78711-2548
JAMES E. DAVIS                    Tel.: (512) 463-2120
Deputy Attorney General           Fax: (512) 320-0667
for Civil Litigation
                             Drew.Harris@texasattorneygeneral.gov
ANGELA V. COLMENERO
Chief - General Litigation        COUNSEL FOR APPELLANT
Division
                       SUMMARY OF ARGUMENT

     Amy Rockwood makes three incorrect arguments in her Appellee

Brief. First, regarding the prima facie element of being “qualified” to do

her job, Rockwood argues she was “qualified” in August 2009, but notably

does not contend that she was “qualified” at the relevant time of her

adverse employment action in October 2009.

     Second, Rockwood relies upon the novel argument—not recognized

by the courts—that her employer had the affirmative burden under

disability accommodation law to proactively “inquire” with the

employee’s doctor without the employee ever providing any medical

forms or consent.

     Third, Rockwood argues she can meet the prima facie element of

causation solely by showing temporal proximity of two-months-and-a-

week—despite both Texas and federal courts holding that such temporal

proximity alone is insufficient to show a causal link on summary

judgment—where Rockwood has the burden to show “but-for” causation.

     Appellant Texas Department of State Health Services (“DSHS”)

contends all of these arguments are wrong, but if this Court agrees that

any of these three faulty arguments are incorrect, the Court should


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reverse the denial of the plea to the jurisdiction on the appropriate

claims.

                              ARGUMENT

A.   Rockwood Does Not Dispute She Was Not “Qualified” to
     Work at the Time of Her Adverse Employment Action.

     Rockwood asserts that she was a “qualified individual with a

disability” because, prior to August 2009, she was “rated a ‘3’ Competent

to perform her duties,” and she was still able to perform her duties in

August 2009 despite lacking a rubber mat and chair. See Appellee Br. at

15. But it is undisputed that after her September 4, 2009 car accident,

Rockwood was completely incapable of performing her essential job

functions. CR.47 at 44:7-12; 141:13-20.

     At the time that mattered—at her October 13, 2009 termination—

there is no dispute that Rockwood was not “qualified” to perform the

essential requirements of her job. See Turco v. Hoechst Celanese Corp.,

101 F.3d 1090, 1093 (5th Cir. 1996). In Turco, even though the employee

might have at one time been healthy and qualified, the Court of Appeals

held that because his diabetes caused him to not be able to safely perform

his essential job functions, he was “unqualified,” and summary judgment

was warranted. Id. at 1094.

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     Here, Rockwood must show that she was “qualified” at the relevant

time as an initial prima facie requirement for bringing any sort of

disability discrimination claim under Chapter 21 of the Labor Code.

Davis v. City of Grapevine, 188 S.W.3d 748, 757 (Tex. App.-Fort Worth

2006, pet. denied). Because Rockwood cannot meet this prima facie

element, she cannot bring a Chapter 21 claim.

B.   Rockwood     Creates   New      “Interactive   Process”
     Requirements for Employers Not Recognized by Any Court.

     As an initial matter, because Rockwood did not make a proper

disability accommodation request, DSHS was not under an obligation to

participate in the interactive process. As the Fifth Circuit explained:

     [O]nce an accommodation is properly requested, the
     responsibility for fashioning a reasonable accommodation is
     shared between the employee and employer. Thus, it is the
     employee’s initial request for an accommodation which
     triggers the employer's obligation to participate in the
     interactive process of determining one. If the employee fails
     to request an accommodation, the employer cannot be
     held liable for failing to provide one.

Taylor v. Principal Financial Group, Inc., 93 F.3d 155, 165 (5th Cir. 1996)

(emphasis added). Even Rockwood acknowledges that she did not submit

a formal accommodation request until after her October 2009




                                    4
termination. See Appellee Br. at 9 (“Appellee submitted a formal

reasonable accommodation request on March 12, 2010 …..”).

     But even assuming DSHS was required to engage in an “interactive

process,” DSHS fulfilled its burden because Safety Officer Martha Fritz

tried repeatedly to meet with Rockwood in August 2009 to perform an

ergonomic workplace assessment, and Fritz even sought a temporary

remedy for Rockwood. CR.106 at ¶ 7. Rockwood responds in her Appellee

Brief by creating new requirements for employers regarding the

interactive process.

     Rockwood implicitly asks this Court to create new law imposing a

requirement on employers to proactively inquire with disabled

employees’ physicians about their possible health needs.     Rockwood

argues: “The Appellant’s failure to further inquire with Appellee’s

physician and to accommodate Appellee concerning her request for a

rubber mat and ergonomic chair constitutes a violation of the Act.”

Appellee Br. at 19.

     Rockwood notably does not explain how DSHS would even know

who her physician was, or how DSHS could get around medical privacy

laws to talk to Rockwood’s physician.


                                   5
     Rockwood cites Cutrera v. Board of Sup’rs of Louisiana State

University, 429 F.3d 108, 112 (5th Cir. 2005), as supposed authority that

“the employer is required to … consult with the employee’s physician.”

Appellee Br. at 19. However, Cutrera contradicts this, noting that in

general, “it is the responsibility of the individual with the disability to

inform the employer that an accommodation is needed.” 429 F.3d at 12.

Moreover, Cutrera is readily distinguishable, since there the employer

“refused to discuss any steps that could be taken to accommodate her

disability, and instead terminated her immediately.” Id. In contrast, here

Ms. Fritz repeatedly tried to discuss steps that could be taken, and the

main reason Ms. Fritz was unsuccessful in her efforts was that after

Rockwood’s September 4, 2009 car accident, Rockwood never returned to

work. CR.102, at ¶ 6.

     Here, the “responsibility for breakdown of the interactive process is

traceable to the employee.” Hagood v. County of El Paso, 408 S.W.3d 515,

526 (Tex. App.–El Paso 2013, no pet.) (affirming summary judgment).

Accordingly, summary judgment on the reasonable accommodation claim

is warranted.




                                    6
C.   Rockwood Cannot Rely Upon Temporal Proximity Alone to
     Show “But-For” Causation.

     Under either her discrimination or retaliation claim, Rockwood must

show “but-for” causation. Davis, 188 S.W.3d at 757; Hagood, 408 S.W.3d

at 526. Moreover, Rockwood “must rebut each nondiscriminatory or

nonretaliatory reason articulated by the employer.” McCoy v. City of

Shreveport, 492 F.3d 551, 557 (5th Cir. 2007) (emphasis added).

     With respect to the leave exhaustion reason—which Rockwood does

not factually dispute—Rockwood’s only response is that “she believed

that reason was pretextual.” See Appellee Br. at 22. It is well-established

that personal beliefs are insufficient to create a fact issue as to pretextual

discrimination or retaliation. See e.g., Britt v. The Grocer’s Supply Co.

Inc., 978 F.2d 1441, 1451 (5th Cir. 1992).

     The only other argument for causation Rockwood puts forward is

the “temporal proximity” between the August 5, 2009 request and her

October 13, 2009 termination, which amounts to a little over two-months-

and-a-week gap. See Appellee Br. at 21. However, a very recent 2015

Texas Court of Appeals case noted that “gap of about two months and one

week between the protected activity and the adverse action was

insufficient by itself to infer a causal link.” Texas Parks and Wildlife


                                      7
Dept. v. Gallacher, 2015 WL 1026473, *7 (Tex. App.—Austin, March 4,

2015). Recent federal law similarly found that two-months-and-a-week

was insufficient by itself to show causation. Amsel v. Texas Water Dev.

Bd., 464 Fed. Appx. 395, 402 (5th Cir. 2012) (noting that “timing alone

will not always be enough for a prima facie case”).

     Accordingly, Rockwood has not met her burden in rebutting the

legitimate reasons for termination—and she has not even set forth a

prima facie causation showing to the extent she is relying upon a two-

month-and-a-week timeframe. Gallacher, 2015 WL 1026473, *7. Thus,

summary judgment on the issue of causation is warranted.

                              CONCLUSION

     The Court should reverse the trial court’s denial of the Plea to the

Jurisdiction, and dismiss Plaintiff’s claims with prejudice.

                                 Respectfully submitted,

                                 KEN PAXTON
                                 Attorney General of Texas

                                 CHARLES E. ROY
                                 First Assistant Attorney General

                                 JAMES E. DAVIS
                                 Deputy Attorney General for Civil Litigation

                                 ANGELA V. COLMENERO
                                 Division Chief, General Litigation Division

                                    8
                                /s/ DREW L. HARRIS
                                DREW L. HARRIS
                                Assistant Attorney General
                                State Bar No. 24057887
                                Office of the Attorney General
                                General Litigation Division
                                P.O. Box 12548
                                Austin, TX 78711-2548
                                (512) 463-2120 / (512) 320-0667 FAX
                                drew.harris@texasattorneygeneral.gov

                                ATTORNEYS FOR APPELLANT TEXAS
                                DEPARTMENT OF STATE HEALTH
                                SERVICES


                         CERTIFICATE OF SERVICE

     On May 12, 2015, the foregoing was served via certified mail, return

receipt request, upon:

R. Chris Pittard
FORTE & PITTARD, P.P.L.C.
Counsel for Appellee
                                  /s/ Drew Harris
                                  DREW HARRIS


                    CERTIFICATE OF COMPLIANCE

     In compliance with Texas Rule of Appellate Procedure 9.4(i)(2), this

Appellant’s Reply Brief contains 1,504 words.

                                  /s/ Drew Harris
                                  DREW HARRIS

                                   9
