      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       No. 03-18-00153-CV



                        Texas Department of Transportation, Appellant

                                                  v.

                                    Albert Lara, Jr., Appellee


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 345TH JUDICIAL DISTRICT
         NO. D-1-GN-16-005836, HONORABLE JAN SOIFER, JUDGE PRESIDING



             CONCURRING AND DISSENTING OPINION


               I concur with the majority’s holding that Lara failed to establish the trial court’s

jurisdiction over his retaliation claim. I respectfully dissent from its holding that Lara established

jurisdiction over his discrimination claim; specifically, its conclusion that Lara’s request for

additional leave was a reasonable request for accommodation that rendered him qualified for his

position at the time the request was rejected.

               Lara contends that the Department was required to accommodate him by granting him

additional unpaid leave after he had exhausted all forms of paid and unpaid leave, including his own

accrued sick leave and the donated sick leave that had been pooled from his coworkers. But it is well

established that indefinite leave is not a reasonable accommodation. See Amsel v. Texas Water Dev.

Bd., 464 F. App’x 395, 400 (5th Cir. 2012) (“Indefinite leave is not a reasonable accommodation.”)

(citing Carmona v. Southwest Airlines Co., 604 F.3d 848, 860 n.3 (5th Cir. 2010)); Rogers v.
International Marine Terminals, Inc., 87 F.3d 755, 759–60 (5th Cir. 1996) (“Nothing in the text of

the reasonable accommodation provision requires an employer to wait an indefinite period for an

accommodation to achieve its intended effect.” (citation omitted)); Bazile v. AT&T-Bell Labs., Inc.,

142 F.3d 1279 (5th Cir. 1998) (same). Here, it is undisputed that at the time of his discharge, Lara

could not perform the essential functions of his job, he had not been medically cleared to undertake

any work at all, he had not been in the office for five months, he would be out at least another five

weeks, he would need another major surgery beyond that time, and he had already missed previously

scheduled return dates.

               Based on these undisputed facts and the controlling law on reasonable

accommodation, I would hold that Lara’s request for additional leave was not a request for

reasonable accommodation that rendered him qualified for his position at the time the request was

rejected. Accordingly, I would reverse the trial court’s order overruling the Department’s plea to the

jurisdiction and render judgment dismissing both of Lara’s claims for lack of jurisdiction.



                                               __________________________________________
                                               Jeff Rose, Chief Justice


Before Chief Justice Rose, Justices Baker, and Smith

Filed: May 9, 2019




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