      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                         ON REHEARING


                                        NO. 03-14-00079-CV



                        Texas Parks and Wildlife Department, Appellant

                                                   v.

                                    Nancy Gallacher, Appellee


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 250TH JUDICIAL DISTRICT
        NO. D-1-GN-12-001458, HONORABLE JOHN K. DIETZ, JUDGE PRESIDING



                             MEMORANDUM OPINION


                We withdraw our opinion and judgment dated December 31, 2014, and substitute

the following opinion and judgment in their place. Appellee’s motion for rehearing is dismissed

as moot.

                In this interlocutory appeal, Texas Parks and Wildlife Department (TPWD)

challenges the district court’s order denying its plea to the jurisdiction as to the suit brought by its

former employee, Nancy Gallacher, alleging employment discrimination and retaliation based on

disability. TPWD contends that the district court erred in denying its plea because Gallacher failed

to demonstrate a prima facie case for her claims under the Texas Commission on Human Rights Act

(TCHRA) and thus, had failed to show there had been a waiver of TPWD’s sovereign immunity.

We will reverse the district court’s order and render judgment dismissing Gallacher’s suit.
                                         BACKGROUND

               In 2000, Gallacher began employment with TPWD as an administrative assistant

requiring her to perform secretarial work. From 2006 to 2010, Gallacher took paid absences from

work using Family and Medical Leave Act (FMLA) leave, sick leave, and sick-pool leave1 because

of her husband’s declining health and later, her own. Gallacher herself was diagnosed with morbid

obesity, diabetes, congestive heart failure, and chronic anemia.

               Matt Wagner was Gallacher’s supervisor in the Wildlife Diversity Program at

TPWD from 2006 until 2009. In 2009, Gallacher was reassigned briefly to work for TPWD’s Acting

Director of the Wildlife Division, Ruben Cantu, who lived and worked in San Angelo but came to

TPWD’s Austin office three days per week. When Cantu was her supervisor, Gallacher would work

on weekends to make-up for absences exceeding her available leave. At the end of 2009, Wagner

became Gallacher’s supervisor again after being named TPWD’s Acting Deputy Director of the

Wildlife Division. As a result of Wagner’s promotion, Gallacher went from assisting him with

a program to assisting him with division-wide responsibilities. Wagner worked Monday through

Friday, 7:30 a.m. to 5:30 p.m., and refused Gallacher’s request to continue using her weekend time to

make up for her regular work-week absences. He informed Gallacher that because he had accepted

more responsibilities with his new position, her consistent attendance at work was necessary.

Gallacher’s daily functions included answering telephones, keeping Wagner’s calendar and updating

it with him daily, directing people to appropriate office personnel, typing memos and reports,

procurement ordering, taking minutes at meetings, and supporting staff whom Wagner supervised.


       1
         Sick-pool leave is additional paid leave available under certain conditions to employees
who have exhausted all available leave because of a catastrophic illness or injury. Hours in the pool
are donated from other employees who do not use them for use by employees who may.

                                                 2
But in her last year of employment at TPWD Gallacher was absent frequently, often without

prior notice to Wagner, depleting all her monthly leave and all her FMLA leave, plus 174 hours of

sick-pool leave. During these absences, other administrative assistants at TPWD would take over

performance of Gallacher’s job duties.

               Gallacher complains that Wagner discriminated against her during an eight-month

period from April to December of 2010. In early 2010, Gallacher contends that she complained to

TPWD’s Human Resources Representative Errol Hardin that Wagner had allegedly made remarks

about her health and attempted to contact her doctors “but they refused to talk to him.” Gallacher

states that Hardin met with her and Wagner to address her complaints. Toward the end of 2010,

Gallacher received a draft employee evaluation from Wagner with a “Needs Improvement”

rating in the categories of “Integrity/Accountability” and “Teamwork” but an overall rating of

“Meets Expectations.” Gallacher’s draft evaluation listed two bases for the lower rating in the

“Integrity/Accountability” category. The first involved an e-mail with religious subject matter that

she sent from her work computer, which caused an internal-affairs investigation after a member of

the public formally complained to TPWD about being forwarded a “proselytizing” e-mail created

using governmental-agency resources during governmental-agency time. Wagner noted that this

incident required him to speak with the complainant, issue a report, and divert his attention from

important agency tasks. The second indicated basis for the lower “Integrity/Accountability” rating

was Gallacher’s handling of a disagreement about leave-without-pay issues in which she, according

to Wagner, became upset with an employee in Human Resources. Wagner stated that this incident

caused a stressful environment for all involved and required him to hold a meeting in an effort to re-

establish communications. Gallacher also received a lower rating in the “Teamwork” category, with


                                                  3
Wagner citing her erratic work attendance. Wagner noted that Gallacher’s unpredictable attendance

had hampered progress in improving the division’s efficiency. Gallacher perceived that Wagner

disliked her because of her health problems, but she acknowledged that Wagner had viewed her

absences to be detrimental to the division and to cause him difficulties.

               Gallacher asserts that on September 10, 2010, she complained to TPWD Deputy

Human Resources Director Jim Lopp about her performance evaluation and Wagner’s allegedly

discriminatory treatment of her and requested a transfer to another position within TPWD. Lopp

testified in his deposition that he met with Wagner two weeks later to discuss the complaints

Gallacher made about her evaluation and being unable to make up her time for work absences, along

with her request to move to a different position within the agency. After this meeting and based on

Lopp’s explanation that an employee using leave under the FMLA might not always be able to

provide advance notice of absences, Wagner changed the “Teamwork” rating in Gallacher’s final

evaluation from “Needs Improvement” to “Meets Expectations.”

               On November 3, 2010, Gallacher requested two months (320 hours) of sick-pool

leave for open-heart surgery that she elected to have on November 16, during what she considered

a “slow period of time at the office.” Gallacher left blank the “Employee Certification” part of

the leave-request form asking her to indicate whether she intended to return to work when

released by her physician. However, Gallacher did attach to the form a certification from her

surgeon Dr. Michael Mueller, noting that she would be incapacitated from November 5, 2010

until approximately January 10, 2011.2 Wagner approved half of the paid leave time that Gallacher


       2
          The surgeon’s predicted end date for Gallacher’s period of incapacity was emphasized with
capital letters and double underlining as an estimate (“EST.”). Gallacher admits that she was not
released to work in January 2011, and as of November 2012 had still not been released to work.

                                                 4
requested, granting her 160 hours of sick-pool leave and thereby preventing her from going

into leave-without-pay status. Because Gallacher was absent from work on the week before her

scheduled surgery, Wagner notified her by letter of his decision to approve 160 hours of sick-pool

leave. He also advised her that he would have to decide if TPWD’s business needs would allow her

position to remain open. On November 29, 2010, after Gallacher had exhausted all of her leave,

Wagner notified Gallacher that her sick-pool leave would end on December 15 and that her

employment would be terminated after December 17 due to “business necessity.” He also invited

her to apply for any vacant position for which she was qualified upon her release to return to work.

Gallagher’s position was then posted and filled.

               On January 31, 2011, Gallacher filed a Charge of Discrimination with the

Texas Workforce Commission Civil Rights Division and the Equal Employment Opportunity

Commission (EEOC) alleging disability discrimination and retaliation.3 She testified in her

deposition that for eight months in 2010, Wagner discriminated against her based on her disability

by talking to her about her absences and doctors’ visits, her weight, and why she could not do certain

things or take different medications. She further testified that in the same time frame, Wagner

retaliated against her for making a complaint to human resources about a problem with receipt of her

paycheck by downgrading one category of her performance evaluation.

               The following month, Gallacher applied to the Texas Employees’ Retirement System

for disability retirement benefits, certifying under penalty of perjury that she was unable to hold her

job, unable to hold any other position offering comparable pay, and her disabling condition was



       3
         Gallacher’s charge of discrimination also alleged age discrimination and violation of the
Genetic Information Nondiscrimination Act, but these claims are not pled in her petition.

                                                   5
likely to be permanent. The application included a statement from Gallacher’s primary care doctor,

Stephen Dobberfuhl, attesting to Gallacher’s various medical conditions including hypothyroidism,

diabetes, anxiety disorder, morbid obesity, gout, chronic kidney disease, aortic and carotid stenosis,

pulmonary hypertension, anemia, and sleep apnea. Ultimately, Dr. Dobberfuhl opined that Gallacher

was “incapacitated from work.” After reviewing the information in this application, ERS approved

Gallacher’s disability retirement benefits.

                Thereafter, Gallacher filed the underlying suit against TPWD alleging disability-

based claims and retaliation. TPWD challenged her suit in a plea to the jurisdiction, which the

district court denied. This interlocutory appeal followed.


                                            DISCUSSION

                TPWD asserted in its plea, as it does on appeal, that Gallacher’s suit should have been

dismissed for want of subject-matter jurisdiction because she failed to provide evidence supporting

a prima facie case for her disability-based claims and her retaliation claim.


Plea to the jurisdiction and standard of review

                A plea to the jurisdiction is a dilatory plea that functions generally to defeat an action

without regard to whether the plaintiff’s asserted claims have merit. Mission Consol. Indep. Sch.

Dist. v. Garcia, 372 S.W.3d 629, 635 (Tex. 2012). Typically, a plea to the jurisdiction challenges

whether the plaintiff has alleged facts that affirmatively demonstrate the court’s jurisdiction to hear

the case, but a plea can also challenge whether the jurisdictional facts alleged by the plaintiff exist.

Id. In such cases, the court can consider evidence as necessary to resolve any dispute over those

facts, even if that evidence “implicates both the subject-matter jurisdiction of the court and the


                                                    6
merits of the case.” Id. (quoting Texas Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226

(Tex. 2004)).

                When, as here, a plea to the jurisdiction challenges the existence of jurisdictional

facts and the jurisdictional inquiry implicates the merits of the case, a trial court’s review mirrors that

of a traditional summary judgment motion. See id. We review de novo a trial court’s ruling on a

challenge to its subject-matter jurisdiction. Id. at 228. When reviewing a plea to the jurisdiction in

which the pleading requirement was met and evidence was submitted to support the plea that

implicates the merits of the case, we take as true all evidence favorable to the nonmovant, indulging

every reasonable inference and resolving any doubts in the nonmovant’s favor. Id.


Prima facie case under TCHRA

                A plaintiff may establish a claim of employment discrimination under the

Texas Commission on Human Rights Act (TCHRA) in two ways. One method is with direct

evidence of what the defendant did and said. Id. at 634. But because direct evidence of

discriminatory motive can be hard to come by, the courts adopted 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 the McDonnell Douglas burden-shifting framework, the plaintiff

is entitled to a presumption of discrimination if she meets an initial burden of establishing a

prima facie case of discrimination. Id. A plaintiff must plead basic facts establishing a prima facie

case, but the defendant may present evidence negating one of the facts supporting an element of

her claim. Id. at 637. If the defendant does so, the plaintiff must submit evidence in support of

those facts. Id. The Texas Supreme Court has stated that unless a plaintiff making an employment-



                                                    7
discrimination claim under the TCHRA can meet her burden of demonstrating a prima facie case

on her claims, there is no waiver of sovereign immunity and the trial court has no jurisdiction. Id.

               The TCHRA prohibits an employer from discharging an individual, depriving an

individual of any employment opportunity, or adversely affecting the status of an employee because

of disability. Tex. Lab. Code § 21.051. The TCHRA also prohibits an employer from retaliating or

discriminating against a person who opposes a discriminatory practice, or makes or files a charge

or complaint of discrimination. Id. § 21.055. Additionally, in the absence of a showing of undue

hardship, the TCHRA prohibits an employer from failing or refusing to make a reasonable workplace

accommodation for a known physical or mental limitation of an otherwise qualified individual with

a disability who is an employment applicant or employee. Id. § 21.128.4 But employers are liable

only for discrimination that occurs “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 (emphasis added).

Thus, whether the TCHRA applies can turn on whether an individual with a particular condition has

the ability to reasonably perform a job.


Disability claims

               Gallacher’s petition pleaded two disability-based claims: (1) disability discrimination

and (2) failure to accommodate her disability.5 To establish a prima facie case of disability


       4
         We use “employer” for convenience but note the statute applies to a “respondent” covered
under chapter 21 of the Labor Code, which means a person charged in an employment-discrimination
complaint filed under this chapter and may include an employer, employment agency, labor
organization, or certain joint labor-management committees. Tex. Lab. Code §§ 21.002(13), .128.
       5
           TPWD argues that Gallacher did not plead, or exhaust administrative remedies for,
a disability-based harassment claim. To be actionable under the TCHRA, the alleged harassment
must be based on the plaintiff’s protected status. See Tex. Lab. Code § 21.051; see also County of

                                                  8
discrimination, Gallacher had to show that she: (1) has a disability; (2) is qualified for the job she

seeks; and (3) suffered an adverse employment decision solely because of her disability. Texas Dep’t

of Family & Protective Servs. v. Howard, 429 S.W.3d 782, 787 (Tex. App.—Dallas 2014, pet. filed)

(citing Davis v. City of Grapevine, 188 S.W.3d 748, 757 (Tex. App.—Fort Worth 2006, pet. denied)

and Turco v. Hoechst Celanese Corp., 101 F.3d 1090, 1092 (5th Cir. 1996)). To establish a

prima facie case of failure to accommodate her disability, Gallacher had to show that (1) she is a

qualified individual with a disability, (2) the disability and its consequential limitations were

known by TPWD, and (3) TPWD failed to make reasonable accommodations for such known

limitations. See Smith v. City of Austin, No. 03-12-00295-CV, 2014 Tex. App. LEXIS 10822, at *3

(Tex. App.—Austin Sept. 30, 2014, no pet.) (mem. op.) (citing Feist v. Louisiana, Dep’t of Justice,

Office of the Attorney Gen., 730 F.3d 450, 452 (5th Cir. 2013)); Davis, 188 S.W.3d at 758; see also

Tex. Lab. Code § 21.128 (requiring reasonable workplace accommodation for known physical or

mental limitation of qualified individual with disability).

               Only the element of “qualification,” common to both of Gallacher’s disability-based

claims, is at issue here. TPWD contends that Gallacher failed to show that the TCHRA applied to



Travis ex rel. Hamilton v. Manion, No. 03-11-00533-CV, 2012 Tex. App. LEXIS 4004, at *18-20
(Tex. App.—Austin May 17, 2012, no pet.) (mem. op.) (noting that although plaintiff’s charge of
discrimination referred to “discriminatory treatment,” “hostile actions,” “hostile treatment,” “hostile
activity,” and “harassment,” charge contained no suggestion that such “hostile treatment” or
“harassment” was based on any protected class and thus contained no allegations that would serve
to put defendant on notice of plaintiff’s gender-discrimination claim). Here, the only reference to
harassment in Gallacher’s petition is not linked to any protected class: “Plaintiff was not transferred
to another position and the harassment and discriminatory treatment by Wagner continued.”
Similarly, Gallacher’s charge of discrimination alleges “harassment” from Wagner, but makes no
link to disability. We are not persuaded that these general references constituted fair notice of, or
administrative exhaustion for, a disability-based harassment claim against TPWD.


                                                  9
her disability claims because she did not show that she is a “qualified individual with a disability.”

Specifically, TPWD notes that Gallacher attested to her inability to perform her job or comparable

work in her application for disability-retirement benefits.

               A person who applies for and receives disability benefits is not precluded from

maintaining a disability-discrimination claim if she presents credible evidence that she is otherwise

qualified to perform the functions of her job with reasonable accommodations. Cornyn v. Speiser,

Krause, Madole, Mendelsohn & Jackson, 966 S.W.2d 645, 651 (Tex. App.—San Antonio 1998,

pet. denied). However, unqualified statements of disability cannot be mitigated by subsequent

statements that work could be accomplished with accommodations. Id. Courts require such

mitigating statements to be made when disability benefits are sought, not in a subsequent legal

proceeding when a plaintiff is in danger of losing her disability discrimination claim. See id.

               Here, in her ERS application for disability retirement (salary replacement) benefits,

Gallacher swore or affirmed under penalty of perjury that:


       •   her disabling condition was likely to be permanent,

       •   she was mentally or physically incapacitated for the further performance of duty,
           unable to hold the position occupied and unable to hold any other position
           offering comparable pay,

       •   her condition made her unable to perform her duties even with a reasonable
           accommodation,

       •   she would need continued life-long care, and

       •   she was disabled from any and all gainful employment including sedentary and
           less stressful employment and concerned that her disabilities along with her age
           would put her at a disadvantage for employment.




                                                     10
Gallacher’s assertion of total disability received support from her primary care physician,

Dr. Dobberfuhl, who certified to ERS that:


        •   Gallacher’s condition was likely to be permanently incapacitating with respect
            to her state of employment,

        •   Gallacher’s condition was likely to be permanently incapacitating with respect
            to other occupations,

        •   his opinion about Gallacher’s capacity to work was not based solely on
            Gallacher’s opinions regarding disability but rather on her six-year history as his
            patient and her declining function, and

        •   Gallacher continued to have multiple debilitating medical problems causing her
            to become incapacitated from work.


               Gallacher does not dispute this evidence. She relies on her deposition testimony that

she could have “gotten back on track” and fulfilled her job responsibilities if she had not been let go,

and she points to part of a sentence from Dr. Dobberfuhl’s deposition surmising that she probably

could perform some secretarial positions. However, these statements were disclosed in a subsequent

legal proceeding when Gallacher’s disability-discrimination claim was at risk. They do not mitigate

the unqualified statements in the application presented to ERS wherein Gallacher affirmed her

permanently incapacitating disability, her inability to hold the position she occupied or any other

comparable position, and her inability to perform her duties even with a reasonable accommodation.

See id. Further, the statements in the application from Dr. Dobberfuhl certifying to the “permanently

incapacitating” nature of Gallacher’s disability were made near the time in January 2011 when

Gallacher now alleges she could have returned to work. It is undisputed that Gallacher was unable

to return to work at that time and had not been released to return to work almost two years later.



                                                  11
               On this record, Gallacher did not meet her burden of demonstrating a material

fact issue as to whether she could perform the essential functions of her job, even with

reasonable accommodations. As such, she was not a “qualified individual with a disability.”

Because Gallacher did not show that she was a “qualified individual with a disability,” she did not

establish a prima facie case for her disability-based claims under the TCHRA, and there is no waiver

of sovereign immunity for those claims against TPWD. TPWD’s plea to the jurisdiction should have

been granted on this ground. TPWD’s issue as to Gallacher’s disability-based claims is sustained.


Retaliation claim

               TPWD further contends that Gallacher did not provide evidence supporting a

prima facie case for her retaliation claim. To establish a prima facie case of retaliation under the

TCHRA, an employee must show that she: (1) engaged in a protected activity, (2) an adverse

employment action occurred, and (3) a causal link existed between the protected activity and

the adverse action. Dias v. Goodman Mfg. Co., L.P., 214 S.W.3d 672, 676 (Tex. App.—Houston

[14th Dist.] 2007, pet. denied) (citing Pineda v. United Parcel Serv., Inc., 360 F.3d 483, 487

(5th Cir. 2004)). Here, the parties join issue as to the last element, causation. In evaluating the

“causal link” element of a retaliation claim, courts consider: (1) the extent of the employee’s

disciplinary record; (2) whether the employer followed its policies and procedures in dismissing the

employee; and (3) the temporal relationship between the protected action and the termination. Bacon

v. EDS, 219 F. App’x 355, 357 (5th Cir. 2007).

               Gallacher contends that she established a causal link for her retaliation claim by

pointing to (1) Wagner’s decision to grant her 160 hours instead of 320 hours of sick-pool leave,

which she contends was not authorized by TPWD’s policies and procedures, before her employment

                                                 12
was terminated and (2) the time frame between her termination of employment and her complaint

to Jim Lopp about Wagner’s treatment of her. We disagree.

               Wagner’s decision to grant Gallacher 160 hours of sick-pool leave, instead of the

320 she had requested, was not prohibited by TPWD’s policies and procedures. TPWD’s Leave

Practices Policy states that employees must obtain their supervisors’ approval before taking planned

absences and that supervisors retain discretion as to their approval of an employee’s requested leave:


       •   All employees are required to coordinate and receive prior approval from their
           supervisors for planned absences.

       ....

       •   Approval of leave is not automatic. While every attempt will be made to approve
           employees’ timely leave requests, supervisors have authority and responsibility
           to use their discretion to ensure that adequate staff remains on duty to perform the
           work of the Division program.


Further, just because the Policy provides that a sick-leave-pool request presented to a supervisor is

also coordinated with the sick-leave-pool administrator, who can approve or deny the request, does

not mean that a supervisor is not authorized to approve it in part. See Ikossi-Anastasiou v. Board

of Supervisors of La. State Univ., 579 F.3d 546, 550 (5th Cir. 2009) (rejecting argument that

department chair lacked power to “decide upon” professor’s request for leave where policy

manual stated that vice chancellor/vice provost had authority to grant leave). Thus, Gallacher did

not establish the causation element of her retaliation claim by showing that TPWD departed from

its policies and procedures.

               The only remaining basis for Gallacher’s causation argument is the time frame

between her complaint to Lopp about Wagner and the termination of her employment. Gallacher


                                                 13
contends that the relevant time is the period between “the date that Wagner was actually made aware

of Gallacher’s complaint and the date on which he decided to terminate Gallacher.”

               The record reflects that the time between these two events was about two months

and one week.      The evaluation date listed on Gallacher’s performance-evaluation form is

September 10, 2010. Gallacher and her daughter averred that they went directly to meet with Lopp

on September 10, 2010, after Gallacher’s evaluation.6 Lopp testified that he met with Wagner to

discuss Gallacher’s issues within two weeks of his meeting with Gallacher and her daughter, i.e.,

by September 24, 2010. On November 29, 2010, after Gallacher had exhausted all of her leave,

Wagner notified Gallacher that her sick-pool leave would end on December 15 and that her

employment would be terminated after December 17 due to “business necessity.”

               When, as here, “mere temporal proximity” between an employer’s knowledge of

protected activity and an adverse employment action is accepted as sufficient evidence of causation

to establish a prima facie case of retaliation, the temporal proximity must be “very close.” Amsel

v. Texas Water Dev. Bd., 464 Fed. Appx. 395, 402 n.8 (5th Cir. 2012) (citing Clark Cnty. Sch. Dist.

v. Breeden, 532 U.S. 268, 273 (2001)). The relevant time frame for what is considered “very close”

varies, but in circumstances similar to this case, the Fifth Circuit concluded that a 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. See id. at 401-02 (noting that retaliatory animus was not supported by

employer’s award of additional hours of sick-pool leave and emergency leave to its employee after



       6
         Although Lopp believed that this meeting occurred on September 23 or September 28,
2010, we take as true Gallacher’s evidence, supported by this record, that the meeting occurred on
September 10, 2010. See Texas Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 228
(Tex. 2004).

                                                 14
his FMLA leave was exhausted). Likewise here, we conclude that Gallacher’s “mere temporal

proximity” argument is insufficient to show a causal link existed between protected activity

she engaged in and an adverse employment action against her. As such, she has not established a

prima facie case of retaliation under the TCHRA, and TPWD’s plea should have been granted on

this ground. TPWD’s issue as to Gallacher’s retaliation claim is sustained.


                                        CONCLUSION

               We conclude that Gallacher did not present evidence supporting a prima facie case

under the TCHRA for her disability-based claims and her retaliation claim, and as a result, TPWD’s

sovereign immunity from suit was not waived. Accordingly, we reverse the district court’s order

denying TPWD’s plea to the jurisdiction and render judgment dismissing Gallacher’s suit.



                                             __________________________________________

                                             Jeff Rose, Justice

Before Chief Justice Rose and Justice Goodwin;
  Former Chief Justice Jones not participating

Reversed and Rendered on Rehearing

Filed: March 4, 2015




                                               15
