AFFIRM in part; Reverse and Dismiss in part; Opinion Filed April 15, 2014.




                                          S   In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                       No. 05-13-00817-CV

    TEXAS DEPARTMENT OF FAMILY AND PROTECTIVE SERVICES, Appellant
                                V.
                    CARLOTTA HOWARD, Appellee

                       On Appeal from the 160th Judicial District Court
                                    Dallas County, Texas
                            Trial Court Cause No. DC-11-13467

                                           OPINION
                          Before Justices FitzGerald, Francis, and Myers
                                     Opinion by Justice Myers
        The Texas Department of Family and Protective Services appeals the trial court’s order

denying its plea to the jurisdiction to the claims of unlawful employment practices brought by

Carlotta Howard. The Department brings one issue contending the trial court erred by denying

the plea to the jurisdiction because Howard did not create a fact issue on her prima facie

disability claim. We reverse the trial court’s order denying the plea to the jurisdiction in part and

affirm it in part.

                                        BACKGROUND

        Howard began working for the Department on July 30, 2007 as a Human Services Tech

III, a case aide. Howard’s tasks included transporting children, visiting with families, delivering

Christmas toys, and administrative assistant work. The administrative work included observing
and taking notes during parents’ visitations with their children.          Most of Howard’s work

involved driving.

           On December 16, 2008, Howard was delivering Christmas presents as part of her job

when her car was struck on the driver’s side by a truck that failed to stop at an intersection.

Howard was taken by ambulance to the hospital and was released after several hours. Howard’s

injuries in the accident included a severely bruised collarbone, bruises to vertebrae, injuries to

the ligaments in both arms, cervicothoracic sprain, lumbosacral dorsal sprain, herniated nucleus

pulposus, and bilateral lumbar radiculitis. Howard also suffered from anxiety and depression

due to the pain.

           At the time of the accident, Howard had 123 hours of sick leave and 72 hours of annual

leave. Howard filed an application for workers’ compensation benefits. She elected to use only

her sick leave and none of her annual leave for her lost time due to her injuries. Howard’s sick

leave was exhausted in mid-January 2009. Howard was placed on leave under the Family &

Medical Leave Act (FMLA) from April 20 to July 25, 2009.

           Shortly after Howard’s accident, while she was at home recuperating, the Department

reorganized its assignment of case aides, and appellant was transferred to a different unit of the

Department supervised by Nicole Ogle. Ogle was on maternity leave at the time of Howard’s

accident and the reorganization. When Ogle returned to work in February 2009, 1 she learned that

Howard had been transferred to her unit and was on workers’ compensation leave.              Ogle

contacted Howard to find out when she would return to work, and Howard said that

determination was up to her doctor. Howard later sent Ogle a work status report, which stated

that Howard’s condition would continue until April. In April, Ogle again contacted Howard,

who said she could not return to work due to back pain. Howard’s doctor sent a Return to Work

   1
       Unless otherwise noted, all dates are during the year 2009.



                                                                     –2–
Certificate to Ogle stating that Howard could not return to work until further notice and that

Howard’s next appointment was May 6. In late May, Ogle tried to contact Howard’s doctor, but

the doctor did not return Ogle’s phone calls. Ogle called Howard, who said she had blurry vision

due to her medications and was still suffering back spasms. In July, Ogle again contacted

Howard, who stated she was unable to return to work.

       Ogle then contacted Larry Barnes at the Department’s regional office, explained that

Howard had exhausted her sick leave and FMLA leave and asked how to proceed. Barnes

directed Ogle to prepare a dismissal recommendation packet. Ogle prepared the dismissal packet

recommending Howard’s termination, which was approved by the Program Director and

Program Administrator, who signed the recommendation.          The dismissal packet was then

reviewed by the Positive Performance Committee, which agreed with the termination

recommendation. The packet then went to Lisa Black, the Regional Director for the Department,

who had the final say on whether Howard would be terminated.

       Black sent a letter to Howard stating that her dismissal had been recommended. Howard

met with Black and told Black about the pain she was in. Howard asked for light duty in the

form of working only four hours per day doing administrative duties in the office. Howard also

told Melissa Hobbs, Black’s assistant, that her doctor wanted her to work only four hours per day

until Howard had weaned herself off of her medicines. Howard told Hobbs she thought that she

would be working part time for only two or three weeks, but Howard did not have any

documentation from her doctor stating she could return to work full time after two or three

weeks. Howard told Hobbs she would get more specific documentation from her doctor. On

October 9, Howard’s doctor signed a work status report stating Howard could return to work on

October 12 with the restriction that she work only 4 hours per day. The work status report did

not state when Howard could return to work full time. After receiving the work status report,

                                              –3–
Black made the decision to terminate Howard. On October 16, Black sent a letter to Howard

notifying her of her termination.     The letter stated it was the Department’s policy that an

employee who exhausts all leave entitlements and does not return to work may be dismissed.

       On October 20, Howard filed a charge of workplace discrimination with the Texas

Workforce Commission, Civil Rights Division. Howard alleged she had been “discriminated

against because of [her] disability in violation of the Americans with Disabilities Act.” She also

alleged that on October 9, she “was denied a reasonable accommodation of working four (4)

hours [sic] work days, due to [her] medical condition.” On October 20, 2011, Howard filed suit

against the Department, alleging she was disabled, the Department discriminated against her in

violation of chapter 21 of the Texas Labor Code by terminating her because of her disability, and

that the Department failed to reasonably accommodate her disability because it refused to permit

her to use her annual leave to work part time.

       The Department filed a plea to the jurisdiction asserting Howard failed to show the

elements of her prima facie case because she failed to present evidence that she was disabled,

that the Department knew of her disability, and that the Department failed to accommodate any

disability she had.     The Department also asserted that Howard failed to exhaust her

administrative remedies. The trial court denied the plea to the jurisdiction, and the Department

brought this interlocutory appeal. See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(8) (West

Supp. 2013).

                               PLEA TO THE JURISDICTION

       In its sole issue, the Department contends “[t]he trial court erred in denying [its] plea to

the jurisdiction because [Howard] did not create a fact issue on her prima facie disability claim.”

       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); Tex.


                                                 –4–
Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 224 (Tex. 2004). Chapter 21 of the

Texas Labor Code 2 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 2006). An employer also commits an unlawful employment

practice by refusing to make a reasonable accommodation for the disability of a qualified

employee. Id. § 21.128(a) (West Supp. 2013). The term “employer” 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

Consolidated Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629, 637 (Tex. 2012).

          A plea to the jurisdiction may challenge the plaintiff’s pleading, the existence of the

jurisdictional facts alleged in the pleading, or both. Miranda, 133 S.W.3d at 226. When the

defendant challenges the existence of jurisdictional facts, the government must meet the

summary judgment standard of proof. Id. at 228. Under that standard, the defendant must

present conclusive proof regarding a jurisdictional fact. See id.; see also Unifund CCR Partners

v. Watson, 337 S.W.3d 922, 926 (Tex. App.—Amarillo 2011, no pet.). If the defendant meets

this burden, the plaintiff must present sufficient evidence to show there is a disputed issue of

material fact regarding the jurisdictional issue or the plea to the jurisdiction will be sustained.

Miranda, 133 S.W.3d at 228; City of Dallas v. Heard, 252 S.W.3d 98, 102 (Tex. App.—Dallas

2008, pet. denied).             If the defendant fails to present conclusive proof of a fact negating




     2
        Chapter 21 of the Texas Labor Code was formerly known as the Texas Commission on Human Rights Act or TCHRA. Following the
abolition of the Texas Commission on Human Rights in March 2004, this Court no longer refers to chapter 21 as the TCHRA. See ATI Enters.,
Inc. v. Din, 413 S.W.3d 247, 249 n.3 (Tex. App.—Dallas 2013, no pet.); Thomann v. Lakes Reg’l MHMR Ctr., 162 S.W.3d 788, 795 n.4 (Tex.
App.—Dallas 2005, no pet.); see also LAB. § 21.0015 (powers and duties of Commission on Human Rights transferred to the Texas Workforce
Commission civil rights division).



                                                                 –5–
jurisdiction, the plaintiff has no burden to present evidence on the jurisdictional issue. Unifund,

337 S.W.3d at 926.

           There are two alternative methods by which a plaintiff may establish a discriminatory

treatment case. The first is by proving discrimination through direct evidence of what the

defendant did and said. Garcia, 372 S.W.3d at 634. However, because direct evidence of

discriminatory motive is usually hard to come by, the courts created a second method, the

burden-shifting mechanism of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–05

(1973). Garcia, 372 S.W.3d at 634. Under this approach, discrimination is presumed if the

plaintiff meets an initial burden of establishing a prima-facie case of discrimination. Garcia, 372

S.W.3d at 634. A plaintiff proceeding under the McDonnell Douglas approach must meet the

requirement of the prima-facie case for the trial court to have jurisdiction. Id. at 637. The failure

to present the elements of a prima-facie case means the trial court has no jurisdiction and the

claim must be dismissed. Id. Although a plaintiff must plead facts making up a prima-facie

case, the defendant may present evidence negating those facts. If the defendant does so, the

plaintiff must then present evidence in support of the facts. Id. The plaintiff “will only be

required to submit evidence if the defendant presents evidence negating one of those basic facts.”

Id.

                                                     Disability Discrimination

           To establish a prima facie case of disability discrimination under chapter 21, a plaintiff

must show (1) he has a “disability,” (2) he is “qualified” for the job, and (3) he suffered an

adverse employment decision “because of his disability.” 3 Davis v. City of Grapevine, 188


           3
               In its argument that the trial court erred by denying the plea to the jurisdiction concerning Howard’s claim of disability
discrimination under section 21.051(1), the Department argues only that Howard was not disabled. The Department presents no argument in this
section of its brief that Howard was not qualified for the job or that she did not suffer an adverse employment decision because of her disability.
Accordingly, we shall not address any elements other than whether Howard had a disability. See Tex. Nat’l Bank v. Karnes, 717 S.W.2d 901, 903
(Tex. 1986) (per curiam) (“The court of appeals may not reverse a trial court’s judgment in the absence of properly assigned error.”). In its
argument concerning Howard’s cause of action under section 21.128 for the Department’s failure to make reasonable accommodations for her


                                                                      –6–
S.W.3d 748, 757 (Tex. App.—Fort Worth 2006, pet. denied) (citing Turco v. Hoechst Celanese

Corp., 101 F.3d 1090, 1092 (5th Cir. 1996)). The Department argues it proved as a matter of law

that Howard was not disabled when she was dismissed. “Disability” in chapter 21 means, “with

respect to an individual, 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 as having

such an impairment.” LAB. § 21.002(6). “Disability” is broadly construed and “includes an

impairment that is episodic or in remission that substantially limits a major life activity when

active.” Id. 21.0021(a)(1), (2). In chapter 21, “major life activity” includes, but is not limited to:

           caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping,
           walking, standing, lifting, bending, speaking, breathing, learning, reading,
           concentrating, thinking, communicating, and working. The term also includes the
           operation of a major bodily function, including, but not limited to, functions of the
           immune system, normal cell growth, and digestive, bowel, bladder, neurological,
           brain, respiratory, circulatory, endocrine, and reproductive functions.

LAB. 21.002(11-a). An impairment “substantially limits” if the individual is

           [u]nable to perform a major life activity that the average person in the general
           population can perform; or [s]ignificantly restricted as to the condition, manner or
           duration under which an individual can perform a particular major life activity as
           compared to the condition, manner, or duration under which the average person in
           the general population can perform that same major life activity.

Thomann v. Lakes Reg’l MHMR Ctr., 162 S.W.3d 788, 796 (Tex. App.—Dallas 2005, no pet.)

(quoting Sutton v. United Air Lines, Inc., 527 U.S. 471, 480 (1999)). The determination of

whether an impairment substantially limits a major life activity is made without regard to the

ameliorative effects of mitigating measures, including medication.                                            LAB. § 21.0021(b)(1).

“[D]iscrimination because of disability or on the basis of disability applies only to discrimination

because of or on the basis of a physical or mental condition that does not impair an individual’s

ability to reasonably perform a job.” Id. § 21.105.

disability, the Department does argue that Howard’s requested accommodation of using her annual leave to work part time would not make her
qualified to perform the essential functions of her position, and we address that issue in our discussion of the Department’s arguments concerning
Howard’s claim of failure to reasonably accommodate her disability.


                                                                      –7–
           The Department argues it disproved as a matter of law the element of disability because

the evidence conclusively established that Howard did not have a physical impairment when she

was terminated. The Department cites to evidence that by April 2009, Howard was significantly

better and drove herself to college classes and doctor’s appointments. The Department also cites

a letter from Howard’s doctor in June 2009 stating Howard’s “[r]ange of motion is essentially

normal.”          That same document, however, showed Howard suffered significant pain and

recommended she consult a pain specialist. 4 Howard testified she suffered frequent muscle

spasms in her back, four or five times a week in May 2009, until she received epidural shots in

her back in 2010, which was after her termination. Howard testified these muscle spasms “just

immobilized me. I have to lay down. I couldn’t lift up any weight, like carry my purse. It was

very painful.” Howard testified she took medicines to combat the muscle spasms, but two of

those medicines made her dizzy, which made it unsafe for her to drive.

           Howard’s testimony that her muscle spasms, which immobilized her, caused her to lie

down, and prevented her from lifting anything, raised a genuine issue of material fact that she

suffered a physical impairment substantially limiting the major life activities of walking,

standing, lifting, and working. She testified the spasms continued until she had the epidural shot

in 2010 and that even then they occasionally occurred. The Department did not present evidence

showing Howard was not subject to these muscle spasms when she was terminated.                                                                We

conclude the Department did not establish as a matter of law that Howard did not have an

impairment when she was terminated.

           The Department also argues that Howard failed to present evidence showing she was

impaired in October when the alleged discrimination occurred. However, Howard was under no

     4
        The doctor stated in the report, “The patient rates pain at best and worst a 5 and 7 on a scale of 0 to 10 with 0 being no pain and 10 being
intolerable pain. She states that symptoms still persist and are more prominent in the low back region than in the neck/upper back area. . . . The
patient has persistent radicular symptoms extending into the right/left leg.”



                                                                       –8–
burden to present evidence on that matter until the Department first presented evidence

establishing that she was not impaired in October.         See Garcia, 372 S.W.3d at 637 (“a

plaintiff . . . will only be required to submit evidence if the defendant presents evidence negating

one of those basic facts”); City of Austin v. Rangel, 184 S.W.3d 377, 382 (Tex. App.—Austin

2006, no pet.) (“The defendant cannot simply deny the existence of jurisdictional facts and force

the plaintiff to raise a fact issue.”). Moreover, Howard testified that her debilitating muscle

spasms constituted an impairment and that they continued until she received an epidural shot in

2010. This testimony constituted some evidence raising a fact question that her impairment

persisted in October 2009.

       The Department also argues that Howard did not produce evidence “that she could not

return full-time and perform the essential functions of her job in September/October 2009.” The

Department does not argue that it presented evidence proving she could have returned to work

full-time in that time period and perform the essential functions of her job, including transporting

children. Until the Department presented evidence establishing that fact, Howard had no duty to

present evidence. See Garcia, 372 S.W.3d at 637; Rangel, 184 S.W.3d at 382.

       The Department also argues Howard failed to present evidence that the Department had

notice of her disability. Notice of the disability is not an element of the prima facie case for

disability discrimination under section 21.051(1). See Davis, 188 S.W.3d at 757 (setting out

elements for prima-facie case of disability discrimination). In support of its argument, the

Department cites to cases alleging discrimination for failure to accommodate a disability under

the ADA, not workplace discrimination for having a disability under section 21.051(1). Seaman

v. CSPH, Inc., 179 F.3d 297, 300 (5th Cir. 1999); Taylor v. Principal Fin. Group, Inc., 93 F.3d

155, 165 (5th Cir. 1996); Picard v. St. Tammany Parish Hosp., 611 F. Supp. 2d 608, 620 (E.D.

La. 2009), aff’d, 423 F. App’x 467 (5th Cir. 2011). The Department also cites Pulczinski v.

                                                –9–
Trinity Structural Towers, Inc., 691 F.3d 996 (8th Cir. 2012), which concerned a claim under the

ADA of denial of “equal jobs or benefits to a qualified individual because of the known

disability of an individual with whom the qualified individual is known to have a relationship or

association.” Id. at 1002 (quoting 42 U.S.C. § 12112(b)(4)). In that case, the plaintiff alleged his

employer terminated him due to his son’s disability. Id. at 1001. Both the statute and the factual

situation in Pulczinski are distinguishable. The Department has not shown that notice to the

employer of the disability is an essential element of a claim for disability discrimination under

section 21.051.

       We conclude the Department has not shown the trial court erred by denying the

Department’s plea to the jurisdiction concerning Howard’s claim for disability discrimination

under section 21.051.

                            Reasonable Workplace Accommodation

       Howard alleged the Department failed to reasonably accommodate her disability because

it refused to permit her to use her seventy-two hours of annual leave to work four hours per day

for two or three weeks. Section 21.128 of the labor code provides that it is an unlawful

employment practice for an employer to fail “to make a reasonable workplace accommodation to

a known physical or mental limitation of an otherwise qualified individual with a disability who

is an employee . . . , unless the [employer] demonstrates that the accommodation would impose

an undue hardship on the operation of the business of the [employer].” LAB. § 21.128(a). The

elements of a claim for an employer’s failure to accommodate a disability overlap the elements

of a disability-discrimination claim. To prove failure to accommodate, the plaintiff must show

(1) the plaintiff has a “disability,” (2) the employer had notice of the disability, (3) the plaintiff




                                                –10–
could perform the “essential functions” of the position with “reasonable accommodations,” and

(4) the employer refused to make such accommodations. Davis, 188 S.W.3d at 758. 5

           The Department argues that Howard’s requested accommodation, use of her seventy-two

hours of accrued annual leave while she worked part time, was not a reasonable accommodation

as a matter of law because Howard could not perform the “essential functions” of the position

with the accommodation. “Essential functions of a job are those that ‘bear more than a marginal

relationship to the job at issue.’” LeBlanc v. Lamar State College, 232 S.W.3d 294, 300 (Tex.

App.—Beaumont 2007, no pet.) (quoting Chandler v. City of Dallas, 2 F.3d 1385, 1393 (5th Cir.

1993)). Howard testified she wanted to use her annual leave to work part time while she weaned

herself off certain medications, and she asked that she do only office work during that time. The

medications Howard wanted additional time to wean herself from were those that made it unsafe

for her to drive. The evidence showed that driving, including transporting children, constituted

seventy-five percent of Howard’s duties. Therefore, driving was “an essential function” of her

position. See Robert v. Bd. of Cnty. Comm’rs, 691 F.3d 1211, 1217 (10th Cir. 2012) (function

making up twenty-five to fifty percent of position was essential function); Colon-Fontanez v.

Municipality of San Juan, 660 F.3d 17, 34 (1st Cir. 2011) (employee did not perform essential

function of attendance at work when she was absent more than twenty percent of the time).

Howard did not present evidence that driving was not an essential function of her position.

Howard’s working only four hours per day while doing office work would leave the essential

function of driving unperformed.                        Accordingly, we conclude the Department conclusively

     5
        Some courts have held the McDonnell Douglas burden-shifting test with its presumption of discrimination does not apply to a claim of
failure to reasonably accommodate a disability. See Davis v. City of Grapevine, 188 S.W.3d 748, 758–59 (Tex. App.—Fort Worth 2006, pet.
denied) (discussing Bultemeyer v. Fort Wayne Cmty. Sch., 100 F.3d 1281, 1283–84 (7th Cir. 1996) (“If it is true that [the employer] should have
reasonably accommodated [the employee’s] disability and did not, [the employer] has discriminated against him. There is no need for indirect
proof or burden shifting.”)). In that situation, Garcia would not apply. However, Miranda would apply, requiring the Department to present
summary judgment evidence establishing the non-existence of jurisdictional facts before the plaintiff would be required to present evidence. See
Miranda, 133 S.W.3d at 228; see also Dallas County v. Logan, 420 S.W.3d 412, 429 (Tex. App.—Dallas 2014, pet. filed) (“When a plea [to the
jurisdiction] challenges the existence of jurisdictional facts, we take as true all evidence favorable to the claimant and indulge all reasonable
inferences in his favor.”).



                                                                    –11–
disproved one of the elements of Howard’s claim that the Department failed to accommodate her

disability, the element that Howard could perform the essential functions of the position with the

accommodation.

       Howard argues the evidence raised a fact question regarding her reasonable

accommodation claim because, she asserts, both her supervisor, Ogle, and the Department’s

regional director, Black, testified she could perform the essential functions of her job by working

only four hours per day for two or three weeks. We disagree. Black and Ogle did not testify that

Howard was able to drive or that she could perform the essential functions of her position.

Black’s testimony concerned whether Howard’s job could be performed by Howard working

only part time instead of full time, and Black said it could be performed part time, if the

Department permitted part time work, which it did not. Black testified as follows:

       Q. Could the job be performed part-time?

       A. Because of the way our positions are given to us from the legislators, you
       know, it would have to be a split FT—full-time equivalent. It would have to be
       another person willing to say, Okay, if she wants to do it part-time, and I want to
       do it part-time. I mean we just don’t have part-time-position within DFPS.

       Q. Okay.

       A. Does that make sense? We don’t have—in my region, we don’t. We don’t.
       We don’t have any part-time. We used to a long time ago, but we don’t right
       now.

       Q. All right. So could Carlotta Howard have performed her job four hours a day?

       A. I guess she could have, yeah. But the necessity of the job—the function is a
       full-time equivalent position. So that’s eight hours a day.

       Q. But she could have performed it four hours a day?

       A. But yeah. She could have performed it four hours a day. She could have if her
       doctor said so. I want to get that in.




                                              –12–
(Objections omitted.) Ogle testified that she would have been able to operate the office with

Howard working only four hours per day and that she would have permitted Howard to work

part time if she had been instructed to do so by the regional office:

       Q. Would you have been able to run your unit if she was only able to work four
       hours a day?

       A. Absolutely. I would have run my unit regardless.

       Q. Okay. So you could have worked—so the first exhibit that we entered was a
       doctor’s release—

       A. Uh-huh

       Q. –saying that she could work for four hours a day?

       A. Uh-huh.

       Q. And just so we’re clear, you’re saying that would have—you would have been
       able to do—that would have been fine?

       A. I would have done whatever I was instructed to do.

       Q. Okay. But she could have worked in your unit, and your unit could have
       operated that way?

       A. Any unit can operate that way. It’s not our decision to make whether or not
       she’s going to come back on light duty and what responsibilities she’s going to
       have.

       Q. That’s all Regional Office?

       A. Yes.

(Objection omitted.) In context, Ogle and Black’s testimony is not evidence that working part

time would have made Howard qualified to perform the essential function of driving. Nor did

they testify that Howard could drive while taking the medicines or being subject to back spasms.

Nor did they testify that driving was not an essential function of the position. Accordingly, their

testimony did not raise a genuine issue of material fact of whether Howard could have performed

the essential functions of her position with the accommodation of working only four hours per

day.

                                                –13–
          Howard also cites to this statement by Black, “You know, if she would have said for the

next month I need to come in for four hours, you know, a day, I would venture to say that I

would have approved that.” This testimony is not evidence that Howard could have fulfilled the

essential functions of her position by working only four hours per day. Nor is it evidence that

working only four hours per day would have left Howard able to perform the driving functions of

her position while taking the medicines.

          We conclude the Department established the trial court lacked jurisdiction over Howard’s

claim that the Department failed to accommodate her disability. 6

                                                         CONCLUSION

          We sustain the Department’s issue on appeal in part and overrule it in part. We reverse

the trial court’s order denying the Department’s plea to the jurisdiction as to Howard’s claim that

the Department failed to accommodate her disability, and we order that claim dismissed for want

of jurisdiction. In all other respects, we affirm the trial court’s order.




                                                                        /Lana Myers/
130817F.P05                                                             LANA MYERS
                                                                        JUSTICE




     6
       The Department also argued the trial court lacked jurisdiction over Howard’s reasonable accommodation claim other than her claim for
the accommodation of working four hours per day because she did not exhaust her administrative remedies for those accommodations. Howard
did exhaust her administrative remedy for working four hours per day, which was the only requested accommodation alleged in her petition.



                                                                 –14–
                                        S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      JUDGMENT

TEXAS DEPARTMENT OF FAMILY                          On Appeal from the 160th Judicial District
AND PROTECTIVE SERVICES, Appellant                  Court, Dallas County, Texas
                                                    Trial Court Cause No. DC-11-13467-H.
No. 05-13-00817-CV         V.                       Opinion delivered by Justice Myers.
                                                    Justices FitzGerald and Francis participating.
CARLOTTA HOWARD, Appellee

In accordance with this Court’s opinion of this date, we REVERSE the trial court’s order
denying appellant Texas Department of Family & Protective Services’ plea to the jurisdiction as
to appellee Carlotta Howard’s claim that appellant Texas Department of Family & Protective
Services failed to accommodate her disability, and we DISMISS that claim for want of
jurisdiction. In all other respects, we AFFIRM the trial court’s order. We further ORDER that
each party bear its own costs of this appeal.


Judgment entered this 15th day of April, 2014.

                                                 /Lana Myers/

                                                 LANA MYERS
                                                 JUSTICE




                                             –15–
