El Paso County, Texas v. Mary Lou Vasquez

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS

§
No. 08-15-00086-CV
EL PASO COUNTY, TEXAS,
§
Appeal from
Appellant,
§
34th District Court
v.
§
of El Paso County, Texas
MARY LOU VASQUEZ,
§
(TC # 2014DCV1842)
Appellee.
§

OPINION

This is an accelerated interlocutory appeal from a trial court order denying El Paso

County’s plea to the jurisdiction. We reverse and render in part and remand the remainder.

FACTUAL SUMMARY

El Paso County hired Mary Lou Vasquez on August 20, 2001. For the next eleven years,

Vasquez worked several clerical and secretarial positions, but primarily maintained her position

as a Collection Specialist with the County’s Bond Forfeiture Unit.

On September 3, 2012, Vasquez suffered a heart attack at home and was immediately

taken to the emergency room at Del Sol Medical Center. She was 54 years old at the time.

About a week later, Vasquez had quintuple bypass heart surgery. Because of her heart attack and

subsequent surgery, Vasquez took an employer-approved leave of absence from work. While on

leave, her supervisor, Ralph Girvin, directed her to communicate with an individual named Lulu,

a secretary at the County Attorney’s office, about the status of her medical leave of absence.
Vasquez regularly reported to Lulu with updates and the progress of her treatment and status.

While still at Del Sol recovering from surgery, Vasquez acquired a hospital-based infection,

tuberculosis. TB is caused by bacteria that affects the lungs. It is a highly contagious

communicable disease which is spread from person to person through the air and has a history of

engendering fear of the disease and those with it. This fear often leads to stigmatization of

patients who have recovered from a TB infection. Vasquez became extremely ill and was

sequestered in her home for an additional two weeks. As a result of these medical complications,

Vasquez needed to take additional leave time from work, which the County granted. Vasquez

eventually recovered and both her healthcare provider and government health officials released

her to return to work with minimal restrictions on January 7, 2013.

When Vasquez returned to work, she was able to perform her job as a Collection

Specialist with reasonable accommodation. Nevertheless, she was involuntarily transferred to a

new position in the “Hot Checks” Unit of the County Attorney’s office. According to Vasquez,

one of the assistant county attorneys informed her that she was not permitted to return to her

position as Collection Specialist in the Bond Forfeiture Unit because one or more employees had

threatened to either walk off the job if she returned to work or sue the County if they acquired

TB. Vasquez also discovered that many of her co-workers and managers were aware that she

had acquired TB. Vasquez did not disclose this information to anyone except when she was

required to give periodic reports on her status and progress during her leave of absence.

According to Vasquez, once her co-workers discovered she had acquired TB, they treated her

differently and shunned her. Vasquez also alleged in her petition that after being transferred to

the Hot Checks Unit, her supervisor, Ralph Girvin, threatened and intimidated her. Vasquez’s

husband filed a complaint regarding Girvin’s conduct with the County Attorney’s office. In

February 2013, the County recorded a portion of a telephone conversation between Vasquez and

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an individual who had allegedly written a hot check. After investigating the call, the County

recommended she be discharged from her new position because she allegedly violated certain

practices and procedures during the phone conversation. On February 20, 2013, the County

informed Vasquez that she was terminated from her employment. However, the County gave her

the option of resignation in lieu of termination. Vasquez elected to resign and signed a

resignation letter prepared by the County.

The Discrimination Charge

On March 12, 2013, Vasquez filed a charge of discrimination (“the original charge”) in

which she alleged the County discriminated against her based on age and disability. She filed it

with the Equal Employment Opportunity Commission (EEOC) and the Texas Workforce

Commission Civil Rights Division (TWC) received a copy. In the original charge, Vasquez

checked the boxes for “age” and “disability” discrimination and included the following factual

“particulars”:

I. On or around February 20, 2013 I was discharged from my position of
Collection Specialist by Ralph Girvin-Supervisor, JoAnne Bernal-County
Attorney, and Joe Gonzalez-Supervisory Attorney.

II. No suitable reason given. I was told that my employment was terminated
because I did not follow Hot Check Procedures.

III. I believe that I was discriminated against because of my age, 54, and my
disability in the manner described above in violation of the Age Discrimination in
Employment Act of 1967, ADEA and in violation of Title I of the Americans with
Disabilities Act of 1990, as amended (ADAAA).

Vasquez signed the original charge under oath. In July 2013, Vasquez filed an amended charge

with the EEOC, as permitted by the Texas Labor Code. She wanted to add a claim for retaliation

and for disclosure of confidential health information. The amended charge was her original

charge with the word “amended” written at the top. She also checked the “retaliation” box and

signed her initials next to the newly checked box. According to Vasquez, the EEOC additionally

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instructed her to attach a statement to the amended charge describing her retaliation claim. That

statement is entitled, “Amendment to EEOC Charge.” Vasquez signed the statement, but did not

do so under oath. However, she contends that when she initialed the retaliation box and attached

her statement, it was her intent to reaffirm her signature that already appeared on the original

charge. Specifically, she asserts that she reaffirmed her oath that the amendment she submitted

was true, correct, and accurate. On May 30, 2014, the EEOC concluded its investigation into

Vasquez’s charge and issued its Dismissal and Notice of Rights.

The Lawsuit

On June 10, 2014, Vasquez filed her original petition alleging three claims: (1) the

County discriminated against her based on an actual disability and being “regarded as” disabled;

(2) she was retaliated against for “taking time off for medical treatment, seeking a reasonable

accommodation for her disability and for complaining about mistreatment by her supervisor”;

and (3) the County violated Chapter 21 when it disclosed her confidential health information.

On October 6, 2014, the County filed a motion to dismiss under Rule 91a and a plea to

the jurisdiction, arguing that the trial court lacked jurisdiction over Vasquez’s entire lawsuit.

The County alleged that the retaliation claim was barred because she failed to raise it in her

original charge and failed to submit her amended charge to the EEOC “under oath,” as required

by Chapter 21. In response, Vasquez filed an amended petition containing the same causes of

action asserted in her original petition and added a claim for age discrimination under state law.

Vasquez asserted that she had recently submitted an affidavit to the EEOC, dated October 30,

2014, in support of her amended charge and the statement attached to it describing her retaliation

claim. In her affidavit, she averred:

I swear and affirm that the attached amendment to my EEOC charge was
submitted under oath at the time I submitted it to the EEOC in July 2013. I
reaffirmed my prior oath when I amended my EEOC charge.

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 I am, however, re-affirming my oath at this time that the amendment to my EEOC
charge is true, correct, and accurate and based upon personal knowledge. I
therefore swear and affirm, under penalty of perjury, that the attached amendment
to my EEOC charge is true, correct, and accurate and based upon personal
knowledge.

The County then filed an amended motion to dismiss and amended plea to the jurisdiction. The

amended plea contained the same arguments as the original plea, but added the arguments that

Vasquez failed to exhaust her administrative remedies as to her “regarded as” disabled claim and

her claim that she was denied a reasonable accommodation. On February 26, 2015, the trial

court denied the amended plea and this interlocutory appeal follows.

ISSUES FOR REVIEW

We will address the County’s arguments in the following order: (1) Issues One and Two,

pertaining to whether Vasquez exhausted her remedies concerning her retaliation claim and

“regarded as” disabled claim; (2) Issues Three and Four, concerning Vasquez’s actual disability

pleadings; and (3) Issue Five, pertaining to whether Chapter 21 creates a cause of action for the

disclosure of confidential health information. Finally, it is not necessary for us to address the

County’s third issue--whether Vasquez exhausted her administrative remedies and pled facts

sufficient to state a claim that she was denied a reasonable accommodation--because in her brief

she concedes that she cannot assert such a claim under the statute.

PLEA TO THE JURISDICTION

A plea to the jurisdiction is a dilatory plea by which a party challenges the court’s

authority to determine the subject matter of a cause of action. Bland Independent School Dist. v.

Blue, 34 S.W.3d 547, 554 (Tex. 2000); see Texas Department of Transp. v. Jones, 8 S.W.3d 636,

637-38 (Tex. 1999). A governmental unit’s sovereign immunity deprives a trial court of subject

matter jurisdiction. Texas Dept. of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225-26 (Tex.

2004); Tirado v. City of El Paso, 361 S.W.3d 191, 194 (Tex.App.--El Paso 2012, no pet.); see

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Prairie View A&M Univ. v. Chatha, 381 S.W.3d 500, 512 (Tex. 2012)(“Sovereign immunity

bars suits against the state and its entities, and this immunity remains intact unless surrendered in

express and unequivocal terms by the statute’s clear and unambiguous waiver.”); Kirby Lake

Dev., Ltd. v. Clear Lake City Water Auth., 320 S.W.3d 829, 838 (Tex. 2010)(“there can be no

abrogation of governmental immunity without clear and unambiguous language indicating the

Legislature’s intent to do so”); Jones, 8 S.W.3d at 638. Accordingly, a governmental unit, such

as El Paso County, properly raises the issue by a plea to the jurisdiction. Id. We review the

issue of whether a trial court has subject matter jurisdiction de novo. Miranda, 133 S.W.3d at

226-27; State Dept. of Highways and Public Transp. v. Gonzalez, 82 S.W.3d 322, 327 (Tex.

2002).

In asserting the plea, the plaintiff bears the burden of alleging facts that affirmatively

prove the trial court has subject matter jurisdiction. Texas Dept. of Criminal Justice v. Miller, 51

S.W.3d 583, 587 (Tex. 2001); Texas Ass’n of Business v. Texas Air Control Bd., 852 S.W.2d

440, 446 (Tex. 1993). The pleadings must allege consent to suit either by reference to statute or

express legislative permission. Jones, 8 S.W.3d at 638-39; City of El Paso v. Chacon, 148

S.W.3d 417, 421 (Tex.App.--El Paso 2004, pet. denied). To prevail on a plea to the jurisdiction,

the defendant must be able to show an incurable jurisdictional defect exists on the face of the

pleadings. City of Austin v. Rangel, 184 S.W.3d 377, 381 (Tex.App.--Austin 2006, no pet.),

citing MAG-T, L.P. v. Travis Cent. Appraisal Dist., 161 S.W.3d 617, 624 (Tex.App.--Austin

2005, pet. denied).

When a plea to the jurisdiction challenges the sufficiency of the pleadings, we determine

whether the plaintiff has met her burden by pleading facts that affirmatively demonstrate the trial

court’s subject matter jurisdiction. Miranda, 133 S.W.3d at 226. In doing so, we construe the

pleadings liberally in favor of the plaintiff and look to the pleader’s intent, and accept as true the

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factual allegations in the pleadings. Id. at 226, 228. If the pleadings are insufficient to establish

jurisdiction but do not affirmatively demonstrate an incurable defect, then the issue is one of

pleading sufficiency and the plaintiff should be afforded the opportunity to amend. State v.

Holland, 221 S.W.3d 639, 643 (Tex. 2007); Miranda, 133 S.W.3d at 226-27; City of Cameron v.

Brown, 80 S.W.3d 549, 555 (Tex. 2002). However, if the pleadings affirmatively negate the

existence of the trial court’s jurisdiction, then a plea to the jurisdiction may be granted without

allowing the plaintiffs an opportunity to amend. Miranda, 133 S.W.3d at 226-27.

When a plea to the jurisdiction challenges the existence of jurisdictional facts, we

consider relevant evidence submitted by the parties to the extent necessary to resolve the

jurisdictional issues raised, just as the district court is required to do. Miranda, 133 S.W.3d at

227, citing Bland Ind. Sch. Dist., 34 S.W.3d at 555. Where a plea to the jurisdiction includes

evidence, and the jurisdictional challenge implicates the merits of the plaintiff’s cause of action,

the trial court will review the relevant evidence to determine whether a fact issue exists.

Miranda, 133 S.W.3d at 227. If the evidence illustrates a fact question regarding the

jurisdictional issue, a plea to the jurisdiction may not be granted and the fact finder should

resolve the fact issue. Id. at 228. However, if the relevant evidence is undisputed or fails to raise

a fact question on the jurisdictional issue, then the plea to the jurisdiction may be ruled on as a

matter of law. Id.

EXHAUSTION OF ADMINISTRATIVE REMEDIES

In its first point of error, the County argues that Vasquez failed to exhaust her

administrative remedies for her retaliation claim, thus depriving the trial court of subject matter

jurisdiction. In its second issue, the County similarly contends that Vasquez failed to exhaust her

administrative remedies concerning her “regarded as” disability claim. Because both issues

involve the exhaustion of remedies, we will address them together.

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 Chapter 21 of the Labor Code, also known as the Texas Commission on Human Rights

Act (TCHRA), deals with employment discrimination. TEX.LAB.CODE ANN. §§ 21.001-556

(West 2015). The Legislature established a limited waiver of immunity when it enacted Chapter

21. Chatha, 381 S.W.3d at 513 (“Although our precedent establishes that the TCHRA clearly

and unambiguously waives sovereign immunity, it is a limited waiver of immunity.”)[Emphasis

in original]. This means that a claimant may bring suit against a governmental entity under

TCHRA. Id.

However, a person claiming a violation of Chapter 21 must first exhaust the act’s

administrative remedies prior to bringing a civil action. Smith v. University of Texas

Southwestern Medical Center of Dallas, 101 S.W.3d 185, 188 (Tex.App.--Dallas 2003, no pet.);

Wal-Mart Stores, Inc. v. Canchola, 64 S.W.3d 524, 533 (Tex.App.--Corpus Christi 2001, pet.

granted). The failure to exhaust administrative remedies is a jurisdictional defect which deprives

the courts of subject-matter jurisdiction. Schroeder v. Tex. Iron Works, Inc., 813 S.W.2d 483,

488 (Tex. 1991), overruled in part on other grounds by In re United Servs. Auto Ass’n, 307

S.W.3d 299, 310 (Tex. 2010); City of Waco v. Lopez, 259 S.W.3d 147, 149 (Tex. 2008). “To

bring a lawsuit for unlawful employment practices, a plaintiff must first have filed an

administrative [charge] with the EEOC [Equal Employment Opportunity Commission] or the

TCHR [Texas Commission on Human Rights (TWC)].” University of Tex. v. Poindexter, 306

S.W.3d 798, 807 (Tex.App.--Austin 2009, no pet.).

The Retaliation Claim

The County advances three arguments in support of its proposition that Vasquez failed to

exhaust her administrative remedies: (1) the original charge did not raise retaliation; (2) the

amended charge raising retaliation was not signed under oath; and (3) Vasquez failed to file her

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retaliation claim with the TWC. Vasquez responds that her amended charge relates back to her

original charge and that she dually-filed her charge with both the EEOC and TWC. 1

Section 21.201(f) provides that “[a]n amendment to a complaint alleging additional facts

that constitute unlawful employment practices relating to or arising from the subject matter of the

original complaint relates back to the date the complaint was first received by the commission.”

TEX.LAB.CODE ANN. § 21.201(f). Generally, amendments that raise a new legal theory of

discrimination do not relate back to the initial charge of discrimination, unless the facts

supporting both the amendment and the initial charge are essentially the same. See Manning v.

Chevron Chem. Co., 332 F.3d 874, 878 (5th Cir. 2003); Poindexter, 306 S.W.3d at 809. When

analyzing an assertion that a claim relates back, we focus on the factual statement of the initial

charge because that is the “crucial element.” See Bartosh v. Sam Houston State Univ., 259

S.W.3d 317, 322 (Tex.App.--Texarkana 2008, pet. denied), quoting Preston v. Tex. Dep’t of

Family & Protective Servs., 222 Fed.Appx. 353, 356 (5th Cir. 2007). Since many complaints are

made by aggrieved persons unfamiliar with the technicalities of formal pleadings, courts

construe the initial charge liberally and “look slightly beyond its four corners, to its substance

rather than its label.” See Pacheco v. Mineta, 448 F.3d 783, 789 (5th Cir. 2006).

1
Vasquez relies on Norwood v. Litwin Engineers & Constructors, Inc., 962 S.W.2d 220 (Tex.App.--Houston [1st
Dist.] 1998, pet. denied), for the proposition that both Texas and federal courts have held that a plaintiff exhausts her
administrative remedies even when the administrative charge is unsigned and unsworn or where there is no
notarization. We do not read Norwood to stand for such assertions. In Norwood, the charge at issue was not
notarized, but was still signed under penalty of perjury, which the court held to be sufficient under Texas law. 962
S.W.2d at 222-23. Unlike the employee in Norwood, Vasquez’s amended charge was neither sworn under oath nor
signed under penalty of perjury. Therefore, we find Vasquez’s reliance on Norwood misplaced. Vasquez also relies
on Edelman v. Lynchburg College, 535 U.S. 106, 122 S.Ct. 1145, 152 L.Ed.2d 188 (2002), for the argument that her
amendment relates back to the date of her initial charge. The facts and legal concepts articulated in Edelman,
however, are not analogous to the facts here. In Edelman, the plaintiff submitted an unsworn letter in support of his
discrimination charge. Id. 535 U.S. at 109-110. Once the time period to file a charge expired, he amended his initial
letter with a sworn charge of discrimination. The United State Supreme Court construed the federal “under oath”
requirement for administrative charges to permit a relation back concept that “ensures that the lay complainant . . .
will not risk forfeiting his rights inadvertently.” Id. 535 U.S. at 115. Here, Vasquez filed her original charge under
oath and now argues that her unsworn amended charge alleging retaliation should relate back to her original sworn
charge. Edelman does not support such a contention.
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 However, courts will not construe the charge to include facts that were initially omitted.

See County of Travis ex rel. Hamilton v. Manion, No. 03-11-00533-CV, 2012 WL 1839399, at

*4 (Tex.App.--Austin May 17, 2012, no pet.)(mem. op.), citing Harris v. Honda, 213 Fed.Appx.

258, 261 (5th Cir. 2006). The charge must contain an adequate factual basis to put the employer

on notice of the existence and nature of the claims against it. See Santi v. University of Texas

Health Science Center at Houston, 312 S.W.3d 800, 805 (Tex.App.--Houston [1st Dist.] 2009,

no pet.). A lawsuit under the Act will be limited in scope to only those claims that were included

in a timely administrative charge and to factually related claims that could reasonably be

expected to grow out of the agency’s investigation of the claims stated in the charge. See City of

Sugar Land v. Kaplan, 449 S.W.3d 577, 581-82 (Tex.App.--Houston [14th Dist.] 2014, no pet.);

Williams-Pyro, Inc. v. Barbour, 408 S.W.3d 467, 475-76 (Tex.App.--El Paso 2013, pet. denied).

In Manning, 332 F.3d at 876, the plaintiff, after being passed over for a promotion, filed

an EEOC complaint alleging race and gender discrimination. After consulting with an attorney

who noted the plaintiff’s speech impediment, the plaintiff added disability claims to his earlier

claims. Id. at 876-77. The Fifth Circuit held that the plaintiff failed to allege sufficient facts in

the initial charge to provide the defendant with the requisite notice of the added disability claim.

Id. at 879. The court noted that the issue was not whether the employee added any facts when he

amended the charge, but whether the employee already included sufficient facts to put the

employer on notice that the employee might have additional allegations of discrimination. Id.

Similarly, in Altman v. Key Energy Services, LLC, No. 2:11-CV-00495-JRG, 2012 WL

4033336, at *1 (E.D.Tex. Sept. 12, 2012), an employee filed an amendment beyond the 300-day

window. The amendment mentioned for the first time a disability discrimination claim. Id. at *

2. The court determined that the amendment could not properly relate back to the initial charge.

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Id. at *4. “To do otherwise would fly in the face of the public policy promoting fair notice to the

employer, who must then defend against a previously unasserted claim.” Id.

In Poindexter, 306 S.W.3d at 809, the plaintiff similarly argued that the “relation back”

doctrine saved her retaliation charge. Id. at 809. Poindexter’s original complaint alleged only

racial discrimination. Id. at 804. A year and a half later, she filed an amendment to the charge,

alleging retaliation. Id. at 804, 808-09. The court explained that “[t]he key to this doctrine is

that the ‘amendment’ . . . must relate to or arise from the subject matter of the original

complaint.” Id. at 809. In doing so, the court held that Poindexter’s retaliation allegations did

not relate to or arise from the subject matter of her earlier disparate-treatment complaint. Id. at

809.

But in Sanchez v. Standard Brands, Inc., the court ruled that the plaintiff was not barred

from bringing additional claims of discrimination based on national origin and gender, which

were first raised by an amendment made after the 300-day window had closed. 431 F.2d 455

(5th Cir. 1970). The initial charge read:

My complaint was that my boss lady hit me at my rear end and about a month
before that I hurt my thumb and was out of work for seven days and the Company
didn’t pay me. I hurt my thumb at work.

Id. at 458. The plaintiff’s amendment provided:

I was discriminated against by Standard Brands, Inc. because of my national
origin and sex. My supervisor became very abusive toward me and constantly
harrassed [sic] me on my job. She would rush me and one day she caused me to
hurt my thumb. I lost 7 days of work and the company would not pay me for my
lost time. On another occasion my Supervisor struck me on my buttocks with her
hand and accused me of doing my work wrong, rather than argue with her I told
her husband (the plant manager) I was going home. When I returned the next day
my supervisor told me she did not need me any more and fired me. My
supervisor seemed most [sic] abrupt and vengeful against Negro and Mexican
American women than with Anglo women.

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Id. at 459. Clearly, the plaintiff’s facts contained in her amendment related to or arose from the

facts alleged in her initial charge, thereby activating Section 21.201(f). Id. at 458.

Moreover, in Lopez v. Texas State University, 368 S.W.3d 695, 702 (Tex.App.--Austin

2012, pet. denied), the issue was whether Lopez’s race-discrimination and retaliation claims

asserted in her lawsuit fell within the scope of her administrative charge. Lopez checked only

the sex and national-origin discrimination boxes and referred to her national origin as

“Hispanic.” Id. The court articulated the Fifth Circuit’s reasoning discussed above to focus on

Lopez’s factual statement contained in her charge. The narrative portion of Lopez’s charge

stated that she believed she was discriminated against because she was Hispanic. Id. The court

found this aspect of her charge to be instructive and concluded that Lopez’s race-discrimination

claim could have reasonably given rise to an administrative investigation of discrimination based

on both national origin and race even though Lopez checked only the box labeled “national

origin” on the EEOC charge. Id. at 703; but see City of Sugar Land, 449 S.W.3d at 581-82

(finding that plaintiff’s attempted disability claim did not relate to or arise from the same subject

matter of original charge where original charge only claimed that plaintiff was unlawfully

terminated because he was the “oldest employee” in his department).

Several courts have recognized that the line between race and national-origin

discrimination is difficult to draw and a particular national origin can often be reasonably

understood to indicate a particular race or color. City of Sugar Land, 449 S.W.3d at 702; Salas v.

Wisconsin Dep’t of Corr., 493 F.3d 913, 923 (7th Cir. 2007)(noting uncertainty about what

constitutes race versus national-origin discrimination under Title VII); Deravin v. Kerik, 335

F.3d 195, 202 (2d Cir. 2003)(“[B]ecause racial categories may overlap significantly with

nationality or ethnicity, ‘the line between discrimination on account of race and discrimination

on account of national origin may be so thin as to be indiscernible’ or at least sufficiently blurred

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so that courts may infer that both types of discrimination would fall within the reasonable scope

of ensuing EEOC investigation for exhaustion purposes.”)[Citations omitted]. Therefore, it is

clear to see why such courts would conclude that a race discrimination claim may reasonably be

expected to grow out of a national-origin discrimination claim and vice-versa.

However, we cannot say the same for Vasquez’s retaliation claim. Retaliation, age

discrimination, and disability discrimination are all distinct concepts. See Davis, 62 S.W.3d at

894; Simms, 165 F.3d at 1327. There are no factual allegations contained in her original charge

to implicate a claim for retaliation. Rather, her amendment raised a new legal theory, separate

and distinct from her disability and age claims, thereby negating the application of the relation

back doctrine. See Manning, 332 F.3d at 878. We conclude that Vasquez’s retaliation claim

does not relate to or arise from the same subject matter of her original charge such that she failed

to exhaust her administrative. In doing so, we need not address the County’s additional

argument that Vasquez failed to submit her retaliation claim to the TWC. We sustain Issue One.

The “Regarded As” Disabled Claim

Under Chapter 21, an individual need not have an actual physical impairment to state a

claim, as long as that individual is “regarded as having such an impairment.” TEX.LAB.CODE

ANN. § 21.002(6); see also Francis v. City of Meriden, 129 F.3d 281, 284 (2d. Cir.

1997)(discussing the Americans with Disabilities Act (ADA)). An individual is covered by the

“regarded as” prong of the definition of disability in TCHRA if she “has none of the impairments

defined in [the definition of the term ‘impairment’] but is treated by a covered entity as having a

substantially limiting impairment. Francis, 129 F.3d at 284, quoting 29 C.F.R. § 1630.2(l)

(2012)(involving the ADA). This language tracks the definition of disability under the ADA.

See 42 U.S.C § 12102(1)(West 2015); Davis v. City of Grapevine, 188 S.W.3d 748, 759

(Tex.App.--Fort Worth 2006, pet. denied).

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 The County relies on Silva v. Chertoff, 512 F.Supp.2d 792, 819-20 (W.D. Tex. 2007), for

the proposition that Vasquez did not exhaust her administrative remedies for her “regarded as”

claim where her EEOC charge alleged discrimination only on the basis of an actual disability.

See also McBride v. Amer Technology, Inc., No. SA-12-CV-00489-DAE, 2013 WL 2541595, at

*7 (W.D.Tex. 2013); Mitchell v. Nat’l R.R. Passenger Corp., 407 F.Supp.2d 213, 238 n.31

(D.D.C.2005). In its reply brief, the County also contends that the “regarded as” disability claim

is not reasonably expected to grow out of her actual disability claim.

The key question presented by the exhaustion argument is whether Vasquez’s claim that

she was “regarded as” disabled falls within the scope of her existing discrimination charge. This,

in turn, depends on whether her allegations could have been “reasonably expected to grow out of

[the] EEOC charge.” Dyer v. Wiregrass Hospice, L.L.C., 532 F.Supp.2d 933, 935 (M.D. Tenn.

2008), citing Smith v. Ky. State Univ., 97 Fed.Appx. 22, 26 (6th Cir. 2004); Ang v. Procter &

Gamble Co., 932 F.2d 540, 545 (6th Cir. 1991). Vasquez’s charge stated that “I was

discriminated against because of my . . . disability in the manner described above in violation of .

. . Title I of the Americans with Disabilities Act of 1990, as amended (ADAAA).” We agree

with the Dyer court’s line of reasoning: “As disability discrimination claims encompass both

kinds of cases, it is reasonable to conclude that [Vasquez’s] charge alleging disability

discrimination can be expected to encompass the various statutory means by which [Vasquez]

might establish such a claim, including the assertion that she was regarded as having an

impairment.” Dyer, 532 F.Supp.2d at 935-36.

The vast majority of district courts addressing this or substantially similar issues have

reached the same conclusion, holding that the scope of an EEOC charge alleging disability

discrimination extends to “regarded as” claims in addition to actual disability claims. See, e.g.,

Pellack v. Thorek Hosp. & Med. Ctr., 9 F.Supp.2d 984, 989 (N.D.Ill. 1998)(holding that

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“regarded as” claim is reasonably related to claim of discrimination on the basis of disability

alleged in EEOC charge); see also Anderson v. Foster Group, 521 F.Supp.2d 758, 786 (N.D.Ill.

2007)(holding that “regarded as” claim was reasonably related to claim of discrimination on the

basis of disability); Larimer v. Int’l Bus. Machines, Corp., No. 02 C 3160, 2003 WL 21000382,

at *15-16, (N.D.Ill. May 1, 2003); Schlegel v. Berks Area Reading Trans. Auth., No. CIV.A. 01-

6055, 2003 WL 21652173, at *4 (E.D.Pa. Jan. 9, 2003); Sink v. Wal-Mart Stores, Inc., 147

F.Supp.2d 1085, 1091-92 (D.Kan. 2001); Ogborn v. United Food & Commercial Workers, Local

No. 881 and Powell, No. 98 C 4623, 2000 WL 1409855, at *7-8 (N.D.Ill. Sept. 25, 2000), aff’d

sub nom. Ogborn v. United Food & Commercial Workers Union, Local No. 881, 305 F.3d 763

(7th Cir. 2002); Smith v. Warren R. Gregory & Sons, Inc., No. IP99-1490-C-B/S, 2001 WL

1691640, at *6-7 (S.D.Ind. Nov. 21, 2001)(permitting plaintiff to argue that employer “regarded

[him] as disabled” despite “bare-bones” EEOC charge because allegation in EEOC charge that

plaintiff had been treated unfavorably based on disability triggered inquiry into various

definitions of disability, including the “regarded as” definition); O’Rourke v. Roadway Express,

Inc., No. 99 C 50059, 2000 WL 1209423, at *4 n.7 (N.D.Ill. Aug. 21, 2000); Lane v. Wal-Mart

Stores East, Inc., 69 F.Supp.2d 749, 756 (D.Md. 1999); Baker v. Chicago Park Dist., No. 98 C

4613, 1999 WL 519064, at *5-6 (N.D.Ill. July 16, 1999).

The converse is equally true. Courts have also held that a plaintiff similarly exhausts her

administrative remedies as to an actual disability claim when her charge only referred to a

“regarded as” disabled claim. See Williams v. AT&T, Inc., No. H-07-0559, 2009 WL 938495, at

*11 n.4 (S.D.Tex. April 6, 2009)(overruling employer’s motion to dismiss Williams’ actual

disability claim on grounds that Williams failed to exhaust his administrative remedies because

his EEOC charge only asserted a “regarded as” disabled claim); Mayers v. Washington Adventist

Hospital, 131 F.Supp.2d 743, 748 (D.Md. 2001)(finding that plaintiff’s discrimination claim

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based on actual disability fell within the scope of the EEOC charge that alleged only

discrimination based on a perceived disability where the same allegations and facts included

within the charge could reasonably support a claim asserting discrimination on the basis on an

actual disability), aff’d, 22 Fed.Appx. 158 (4th Cir. 2001).

We believe the reasoning of these courts is sound. Because Vasquez’s charge alleged

discrimination based on her disability, her “regarded as” claim falls within the scope of her

charge, and her exhaustion requirement is therefore satisfied. We overrule Issue Two.

THE ACTUAL DISABILITY CLAIM

In its fourth point of error, the County urges that Vasquez’s petition did not state claims

sufficient to overcome the County’s sovereign immunity. In response, Vasquez asserts that she

specifically pled she was disabled due to her heart attack and TB.

An employee must establish a prima facie case of discrimination to show that the court

has jurisdiction and that the County waived its immunity from suit under Chapter 21. San

Antonio Water Sys. v. Nicholas, 461 S.W.3d 131, 136 (Tex. 2015)(noting that the waiver of

immunity “extends only to those suits where the plaintiff actually alleges a violation of the

TCHRA by pleading facts that state a claim thereunder”)(internal quotations omitted); Mayfield

v. Tarrant Regional Water District, 467 S.W.3d 706, 711 (Tex.App.--El Paso 2015, no pet.)

(“The legislature has waived governmental immunity for claims brought under the TCHRA

provided the plaintiffs plead the prima facie elements of their claims.”); Mission Consol.

Independent School Dist. v. Garcia, 372 S.W.3d 629, 635-36 (Tex. 2012)(“In a suit against a

governmental employer, the prima facie case implicates both the merits of the claim and the

court’s jurisdiction because of the doctrine of sovereign immunity.”). [Emphasis in original]. If

the employee cannot establish a prima facie case and cannot plead the elements of a claim under

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Chapter 21 in her pleading, “that failure . . . means the court has no jurisdiction and the claim

should be dismissed.” Id. at 637, citing State v. Lueck, 290 S.W.3d 876 (Tex. 2009).

To prevail on a disability discrimination claim, a plaintiff must show that (1) she has a

“disability,” (2) she is “qualified” for the job she seeks, and (3) she suffered an adverse

employment decision because of her disability. Turco v. Hoechst Celanese Corp., 101 F.3d

1090, 1092 (5th Cir. 1996); Hagwood v. County of El Paso, 408 S.W.3d 515, 523 (Tex.App.--

El Paso 2013, no pet.); Davis v. City of Grapevine, 188 S.W.3d 748, 757 (Tex.App.--Fort Worth

2006, pet. denied). A disability is defined 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 as having such an impairment.” TEX.LAB.CODE ANN. § 21.002(6). Courts interpret a

“major life activity” as the equivalent of “caring for oneself, performing manual tasks, walking,

seeing, hearing, speaking, breathing, learning, and working.” Union Carbide Corp. v. Mayfield,

66 S.W.3d 354, 360 (Tex.App.--Corpus Christi 2001, pet. denied). The Texas Supreme Court

has stated that a disability as contemplated by TCHRA “must be one which is generally

perceived as severely limiting [the plaintiff] in performing work-related functions in general.”

Chevron Corp. v. Redmon, 745 S.W.2d 314, 318 (Tex. 1987).

In determining if a person is substantially limited in a major life activity, we consider: (1)

the nature and severity of the impairment; (2) the duration or expected duration of the

impairment; and (3) the permanent or long-term impact, or the expected permanent or long-term

impact of or resulting from the impairment. Union Carbide Corp., 66 S.W.3d at 360; Garcia v.

Allen, 28 S.W.3d 587, 596 (Tex.App.--Corpus Christi 2000, pet. denied); Norwood v. Litwin

Eng’rs & Constructors, Inc., 962 S.W.2d 220, 224 (Tex.App.--Houston [1st Dist.] 1998, pet.

denied), quoting 29 C.F.R. § 1630.2(j)(2)(2011). To be considered a disability, the

“impairment’s impact must . . . be permanent or long-term.” Toyota Motor Manufacturing,

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Kentucky, Inc. v. Williams, 534 U.S. 184, 198, 122 S.Ct. 681, 691, 151 L.Ed.2d 615 (2002); see

also Hamilton v. Southwestern Bell Tel. Co., 136 F.3d 1047, 1051 (5th Cir. 1998)(“We have

noted that ‘[t]he EEOC regulations provide that temporary, non-chronic impairments of short

duration, with little or no permanent long-term impact, are usually not disabilities.’”), quoting

Rogers v. Int’l Marine Terminals, Inc., 87 F.3d 755, 759 (5th Cir. 1996); Garcia v. Allen, 28

S.W.3d 587, 596 (Tex.App.--Corpus Christi 2000, pet. denied)(“In determining if one is

substantially limited in a major life activity,” one factor to consider is the “duration or expected

duration of the impairment.”).

More importantly, under the actual disability prong, the relevant determination is whether

the plaintiff was disabled at the time of the adverse employment action. Tex. Dep’t of Family

and Protective Servs. v. Howard, 429 S.W.3d 782, 787-89 (Tex.App.--Dallas 2014, pet. denied)

(stating that once the employer shows the employee was not disabled at the time of

discriminatory act, the employee must present evidence that she was in fact disabled); EEOC v.

Chevron Phillips Chem. Co., 570 F.3d 606, 618 (5th Cir. 2009); Samuels v. Kansas City Mo.

Sch. Dist., 437 F.3d 797, 802 (8th Cir. 2006); Swanson v. Univ. of Cincinnati, 268 F.3d 307, 316

(6th Cir. 2001); Cash v. Smith, 231 F.3d 1301, 1306 (11th Cir. 2000)(holding that a disability

must be evaluated at the time of the challenged employment action).

Vasquez’s amended petition provides in relevant part:

However, on the day she returned to work in January 2013, at age 54, Vasquez
was informed by Joe Gonzalez, an Assistant County Attorney, that she would not
be permitted to work in the Bond Forfeiture Unit because one or more employees
had threatened to either walk off the job if Vasquez returned to work or sue the
County if they acquired TB from Vasquez.
Vasquez was further told by Mr. Gonzalez upon her return that she would be
transferred to a new position in the ‘Hot Checks’ Unit of the County Attorney’s
office.
Vasquez was therefore removed from her longstanding job in the Bond Forfeiture
Unit for an illegitimate reason--namely, due to fear and stigma as a result of
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 having TB. Vasquez was not actually disabled at the time, but rather, was
regarded and/or perceived as disabled by management, her supervisors, and co-
workers at the County.
[Emphasis added]. Vasquez failed to plead sufficient facts to establish a prima facie case of

disability discrimination. Instead, she has affirmatively established that she cannot prove a

crucial element of her disability claim--that she suffered from a disability at the time of the

County’s alleged adverse actions. Not only had she recovered from her heart attack, government

health officials had released her to resume work because she successfully completed her course

of treatment for TB. Garcia, 372 S.W.3d at 637 (explaining that the Legislature waives

immunity only for those suits where the plaintiff actually alleges a violation of TCHRA by

pleading facts that state a claim thereunder and a failure to establish a prima facie case “means

the court has no jurisdiction and the claim should be dismissed”). We sustain Issue Four.

Having sustained Issue Four, we must likewise sustain Issue Three challenging Vasquez’s

allegations that she was denied a reasonable accommodation. Chapter 21 only requires

employers to accommodate disabled employees. Hagood v. County of El Paso, 408 S.W.3d 515,

524 (Tex.App.--El Paso 2013, no pet.)(“Under a reasonable accommodation claim, a plaintiff

must show that: (1) he has a “disability;” (2) an employer covered by the statute had notice of

his disability; (3) with “reasonable accommodations” he could perform the “essential functions”

of his position; and (4) the employer refused to make such accommodations.”).

DISCLOSURE OF CONFIDENTIAL HEALTH INFORMATION

In considering the fifth point of error, we must determine whether Vasquez properly pled

a cause of action for disclosure of confidential health information. The County contends that

because no such cause of action exists, it cannot have waived its immunity to suit under Chapter

21. We agree.

Vasquez responds that federal law supports her assertion that a valid cause of action for

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disclosure of confidential health information exists under Chapter 21. Several federal courts

have held that a claim for disclosure of confidential health information constitutes an

independent cause of action for disability discrimination if the disclosure results in a tangible

injury to the plaintiff. See Cossette v. Minnesota Power & Light, 188 F.3d 964, 970 (8th Cir.

2007)(stating that a plaintiff must show that the disclosed information was confidential and that

he suffered some kind of tangible injury as a result of the disclosure.); Garrison v. Baker Hughes

Oilfield Operations, Inc., 287 F.3d 955, 963 (10th Cir. 2002)(A claimant may recover

compensatory damages for tangible injury legally and proximately caused by disclosure of

confidential personal health information.). To solidify her argument, Vasquez points us to one of

the underlying purposes of Chapter 21, which is to provide for the “execution of the policies” of

the ADA.

However we are to look to federal law only when the two statutes are analogous. Prairie

View A&M University v. Chatha, 381 S.W.3d 500, 507 (Tex. 2012). We cannot conclude that

Chapter 21 and the ADA are analogous for purposes of creating a disclosure of confidential

health information cause of action. The ADA addresses an employer’s obligations to keep

certain employee information confidential. See 42 U.S.C. § 12112(d)(West 2015). It requires all

information regarding the medical condition or history of an applicant or employee to be

maintained on separate forms and in separate files and to be treated as confidential medical

records. Id. The confidentiality requirement also applies to all applicants and employees and not

just those with disabilities. Cossette, 188 F.3d at 969. No such provision exists within Chapter

21. For this reason, we find Vasquez’s reliance on federal law misplaced. Accordingly, we

cannot incorporate such a provision, as Vasquez urges us to do, that our Legislature has not

included in the statute. See Chatha, 381 S.W.3d at 507-09 (explaining that Chapter 21 does not

incorporate the federal Lilly Ledbetter Act where the two statutes contained different statutory

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language). We sustain Issue Five.

CONCLUSION

Having sustained Issues One, Three, Four, and Five, we reverse and render judgment

granting the plea to the jurisdiction with regard to claims of retaliation, actual disability, denial

of a reasonable accommodation, and disclosure of confidential health information. We remand

the cause for consideration of Vasquez’s “regarded as” disabled claim.

May 5, 2016
ANN CRAWFORD McCLURE, Chief Justice

Before McClure, C.J., Rodriguez, and Hughes, JJ.

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