Texas Department of Criminal Justice v. Bibiana Flores

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS

§
TEXAS DEPARTMENT OF CRIMINAL No. 08-16-00317-CV
JUSTICE, §
Appeal from
Appellant, §
County Court at Law No. 3
v. §
of El Paso County, Texas
BIBIANA FLORES, §
(TC # 2015-DCV-0261)
Appellee. §

OPINION

This is an accelerated interlocutory appeal from a trial court order denying the Texas

Department of Criminal Justice’s (TDCJ) plea to the jurisdiction. We affirm in part and reverse

in part.

FACTUAL SUMMARY

Bibiana Flores began working as a correctional officer for TDCJ in 2002. By 2008, she

rose to the rank of sergeant and worked at the Rogelio Sanchez State Jail. She claims to have

injured her back at work in 2011 by stepping awkwardly on a rock. She did not immediately report

the incident, and lost no time from work, but by 2012, her back pain worsened. Flores claims to

have later reported her back problems to two supervisors, Major Arturo Falcon and Captain Javier

Aguilera, while asking for a shift change. She needed the shift change so that she could pursue
physical therapy for her back. The supervisors allegedly told her to wait, as everyone’s schedule

was about to change. TDCJ never altered her schedule.

On March 13, 2013, while at home on a day off, Flores slipped and fell, further injuring

her back and leg. She went to see her regular physician, who referred her to a specialist,

Dr. Gregory Misenheimer. He put Flores on a no-work status while she underwent physical

therapy. Flores applied for, and the TDCJ granted her, leave under the Family Medical Leave Act

(FMLA) because of that injury.

Also on March 13, 2013, TDCJ initiated an investigation of Flores that ultimately resulted

in five disciplinary charges. Three of the charges relate to an inmate that TDCJ claims became

too familiar with Flores. One charge contended that the prisoner blew Flores a kiss and she did

not initiate a disciplinary charge. Another charge claimed that Flores tried to initiate a relationship

with the same inmate by sharing personal information, including her marital status (single) and her

phone number. Two other charges related to record-keeping entries on an ammunition log.

Under TDCJ’s policy, an employee in most cases may respond to a charge prior to the

imposition of disciplinary action. Because Flores was on FMLA leave, TDCJ was unable to get a

response. The charges pended until she returned to work on August 28, 2013. As of that date, Dr.

Misenheimer released her without restrictions. When she returned to work, Major Michael

Thompson presented the charges to her, and while she disputed several of the charges, she

resigned. Flores contends she was constructively discharged, having been told she could either

resign or be fired.

Flores filed a charge of discrimination with the Texas Workforce Commission, and after

obtaining a right to sue letter, she filed suit asserting three claims. She alleged that TDCJ: (1)

refused to make reasonable accommodations to her work duties; (2) discriminated against her

2
based on a disability; and (3) retaliated against her for engaging in protected activity. TDCJ filed

an original and supplemental plea to the jurisdiction challenging each of the claims. Flores non-

suited the reasonable accommodations claim, and the trial court denied the plea as to the disability

discrimination and retaliation claims. This interlocutory appeal follows.

PLEAS TO THE JURISDICTION UNDER THE LABOR CODE

Sovereign immunity protects state agencies from lawsuits unless the Legislature waives

the immunity. Tex. Parks & Wildlife Dep’t v. Sawyer Trust, 354 S.W.3d 384, 388 (Tex. 2011);

Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 224 (Tex. 2004); Phillips v. Texas

Dept. of Criminal Justice, 366 S.W.3d 312, 315 (Tex.App.--El Paso 2012, no pet.)(deciding

immunity questions in claim against TDCJ). A governmental unit’s sovereign immunity deprives

a trial court of subject matter jurisdiction. Miranda, 133 S.W.3d at 225-26; Tirado v. City of

El Paso, 361 S.W.3d 191, 194 (Tex.App.--El Paso 2012, no pet.). The Legislature has created a

limited waiver of immunity for claims properly brought under the Labor Code. Mission Consol.

Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629, 636 (Tex. 2012). That waiver, however, extends

only “for those suits where the plaintiff actually alleges a violation of the [Labor Code] by pleading

facts that state a claim thereunder.” Id. at 636.1 Absent a pleading stating a prima facie case, the

State’s immunity from suit has not been waived. Id.

A governmental entity may challenge the existence of that prima facie case through a plea

to the jurisdiction. Miranda, 133 S.W.3d at 225-26; Bland Independent School Dist. v. Blue,

34 S.W.3d 547, 554 (Tex. 2000); Univ. of Texas at El Paso v. Ochoa, 410 S.W.3d 327, 330

(Tex.App.--El Paso 2013, pet. denied). The plea might attack the face of the pleading, but it may

1
Prior case law referred to these sections as the Texas Commission of Human Rights Act or TCHRA for short. Id.
Subsequent legislation abolished the Texas Commission on Human Rights and transferred its powers and duties to the
Texas Workforce Commission Civil Rights Division. See Act of June 18, 2003, 78th Leg., R.S., ch. 302, § 1, 2003
TEX.GEN.LAWS 1279 (codified at TEX.LABOR CODE ANN. § 21.0015 (West 2015)).

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also include evidence that thereby places into issue the existence of a jurisdictional fact. Miranda,

133 S.W.3d at 226-27; College of the Mainland v. Glover, 436 S.W.3d 384, 391 (Tex.App.--

Houston [14th Dist.] 2014, pet. denied). Here, TDCJ has presented evidence in support of its plea

to the jurisdiction.

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

relevant evidence submitted by the parties. Miranda, 133 S.W.3d at 226. “If there is no question

of fact as to the jurisdictional issue, the trial court must rule on the plea to the jurisdiction as a

matter of law.” City of El Paso v. Heinrich, 284 S.W.3d 366, 378 (Tex. 2009). “If, however, the

jurisdictional evidence creates a fact question, then the trial court cannot grant the plea to the

jurisdiction, and the issue must be resolved by the fact finder.” Id. “This standard mirrors our

review of summary judgments” where the reviewing court takes as true all evidence favorable to

the non-movant, indulging every reasonable inference and resolving any doubts in the non-

movant’s favor. Id.

While akin to a summary judgment, a plea to the jurisdiction is not a substitute for a “no

evidence” motion for summary judgment. Instead, to trigger the plaintiff’s obligation to submit

some evidence creating a fact issue, the State entity must first present evidence conclusively

negating one or more elements of the plaintiff’s claim. Miranda, 133 S.W.3d at 226; Texas Dept.

of Fam. and Protective Services v. Howard, 429 S.W.3d 782, 786 (Tex.App.--Dallas 2014, pet.

denied). As the Miranda court explained, “[b]y requiring the [governmental entity] to meet the

summary judgment standard of proof in cases like this one, we protect the plaintiffs from having

to ‘put on their case simply to establish jurisdiction.’” Miranda, 133 S.W.3d at 228, quoting Bland,

34 S.W.3d at 554. But if there is no fact question on the jurisdictional issue, the trial court should

rule on the plea to the jurisdiction as a matter of law. Heinrich, 284 S.W.3d at 378.

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 We review de novo the issue of whether a trial court has subject matter jurisdiction.

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); Texas Dept. of Aging and Disability Services v. Lagunas, 08-16-

00086-CV, 2017 WL 728368, at *3-4 (Tex.App.--El Paso Feb. 24, 2017, no pet.).

DISABILITY DISCRIMINATION

Flores alleges in part that TDCJ discriminated against her because of a disability. The

Labor Code prohibits 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.” TEX.LAB.CODE

ANN. § 21.105 (West 2015). A plaintiff may establish a disability discrimination case in one of

two ways. The first requires the plaintiff to prove discrimination through direct evidence of what

the defendant did or said. Garcia, 372 S.W.3d at 634. Because direct evidence of discriminatory

motive is usually hard to come by, the Court created a second method: the burden-shifting

mechanism described in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05, 93 S.Ct. 1817,

36 L.Ed.2d 668 (1973). Under that method, the plaintiff creates a presumption of discrimination

if she meets the “minimal” initial burden of establishing a prima facie case of discrimination.

Garcia, 372 S.W.3d at 634.

To establish a prima facie case of disability discrimination, a plaintiff must show that: (1)

she has a “disability;” (2) she is “qualified” for the job; and (3) she suffered an adverse employment

decision because of that disability. Howard, 429 S.W.3d at 787; Davis v. City of Grapevine, 188

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). Once the plaintiff makes that prima facie case, the

burden shifts to the employer-defendant to articulate a legitimate non-discriminatory reason for its

differential treatment of the employee. McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. at 1824;

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Donaldson v. Texas Dept. of Aging and Disability Services, 495 S.W.3d 421, 437 (Tex.App.--

Houston [1st Dist.] 2016, pet. denied).

TDCJ limits its challenge only to whether Flores satisfied the first element--showing the

existence of a disability. It contends that because Flores returned to work following her FMLA

leave with a full work release from her doctor, she did not have a disability at the time of the

adverse employment action. Conversely, Flores contends that TDCJ failed to meet its initial

burden to conclusively show that she did not have a disability, and even if it did, there is some

evidence in the record that creates a fact issue on that question. We ultimately agree with TDCJ

that the trial court erred with regard to the disability discrimination claim, but for a somewhat

different reason than TDCJ advances.

Definition of Disability

A “disability” is (1) a “mental or physical impairment that substantially limits at least one

major life activity of that individual,” (2) “a record of such an impairment,” or (3) “being regarded

as having such an impairment.” TEX.LAB.CODE ANN. § 21.002(6); see also 42 U.S.C.A. § 12102

(West 2013). A major life activity is defined to include, among other things, “. . . caring for

oneself, performing manual tasks, . . . walking, standing, lifting, bending,” and the “operation of a

major bodily function[.]” TEX.LAB.CODE ANN. § 21.002 (11-a).

The Texas statutory scheme parallels the federal protections under the Americans with

Disability Act (ADA). TEX.LAB.CODE ANN. § 21.001(3)(codifying the purposes of the Act,

including execution of the policies embodied in federal employment discrimination legislation);

City of Houston v. Proler, 437 S.W.3d 529, 532 n.7 (Tex. 2014)(“In construing Texas law on

[employment discrimination], we consider federal civil rights law as well as our own caselaw.”).

Effective January 1, 2009, Congress amended the ADA under what is referred to as the ADA

6
Amendment Act (ADAAA). See Pub. Law. No. 110-325, 122 Stat. 3353 (2008); Proler, 437

S.W.3d at 533 n.17. With the ADAAA, Congress intended to broaden the definition and coverage

of the term “disability” and negate the more limited interpretation of “major life activity” from

several prior judicial opinions. See Summers v. Altarum Inst., Corp., 740 F.3d 325, 329 (4th Cir.

2014); Neely v. PSEG Texas, Ltd. Partnership, 735 F.3d 242, 245 (5th Cir. 2013); Morriss v. BNSF

Ry. Co., 817 F.3d 1104, 1110 (8th Cir. 2016), cert. denied, 137 S.Ct. 256 (2016); Rohr v. Salt River

Project Agricultural Imp. and Power Dist., 555 F.3d 850, 853 (9th Cir. 2009).

The Texas Legislature followed suit and amended the Texas Labor Code the same year.

Relevant here, that amendment redefined disability to include “an impairment that is episodic or

in remission that substantially limits a major life activity when active.” Act of June 19, 2009, 81st

Leg., R.S., ch. 337, § 2, 2009, TEX.GEN.LAWS 869 (codified at TEX.LABOR CODE ANN. §

21.0021(a)(2)(West 2015)). The Legislature also added the definition of a major life activity as

we note above. Id. at § 1. The determination of whether an impairment substantially limits a

major life activity must be made “without regard to the ameliorative effects of mitigating

measures[.]” Id. at § 2 (codified at TEX.LABOR CODE ANN. § 21.0021(b)). As with the federal

amendments under the ADAAA, the Legislature added a statement that the term disability shall be

construed broadly in favor of coverage. Id. at § 2, (codified at TEX.LABOR CODE ANN. §

21.0021(a)(1)).

TDCJ argues that because Flores was not disabled when she left its employment on

August 28, 2013, it has conclusively disproved the first element of her claim. TDCJ principally

relies on our decision in El Paso County v. Vasquez, 508 S.W.3d 626 (Tex.App.--El Paso 2016,

pet. denied) for the proposition that the worker must be disabled at the time of the adverse action.

In Vasquez, a County employee suffered a heart attack and underwent quintuple bypass heart

7
surgery. 508 S.W.3d at 629. She also contracted tuberculosis while in the hospital, but fortunately,

recovered from both the surgery and infection. Id. When she returned to work, the County placed

her in a less desirable job, allegedly because the other employees feared contracting TB. Id. at

630. She was later discharged, and filed suit alleging discrimination based on: (1) her actual

disability; (2) being “regarded as” disabled; and (3) retaliation for protected activity. Id. at 630-

31. On review of the County’s plea to the jurisdiction, we held that she presented sufficient

evidence of being “regarded as” having a disability. Id. at 638.

We held her discrimination claim based on an actual disability failed, however, because

she was not disabled at the time of her discharge. Id. at 639. The County challenged the actual

discrimination claim on the basis of the pleadings alone, claiming that Vasquez’s own pleading

affirmatively alleged she was not actually disabled at the time she attempted to return to work. Id.

Vasquez did not plead, and there was no evidence in the record to establish, that her TB was

episodic or merely went into remission as contemplated by the 2009 amendment to the Labor

Code.

In support of the proposition that a worker must be disabled at the time of the

discriminatory act, we cited three federal cases, and the Dallas Court of Appeals opinion in Texas

Dept. of Fam. and Protective Services v. Howard, 429 S.W.3d 782, 784 (Tex.App.--Dallas 2014,

pet. denied). Vasquez, 508 S.W.3d at 639. The three federal cases all predate the ADAAA with

its amendments allowing for episodic conditions, or those in remission.2 Howard acknowledged

2
In E.E.O.C. v. Chevron Phillips Chem. Co., LP, 570 F.3d 606, 618 (5th Cir. 2009), the court stated that under the
ADA, “the relevant time for assessing the existence of a disability is the time of the adverse employment action.” The
court ultimately concluded that a worker with a chronic fatigue syndrome, who exhibited symptoms before, through
and after her termination, validly stated a claim under the ADA. Id. at 618. In Samuels v. Kansas City Missouri Sch.
Dist., 437 F.3d 797, 802 (8th Cir. 2006), the worker’s claim failed because her back and knee injuries were deemed
temporary impairments with little or no long-term impacts, and were not disabilities. The Eighth Circuit relied on
Toyota Motor Manuf., Kentucky, Inc. v. Williams, 534 U.S. 184, 198, 122 S.Ct. 681, 151 L.Ed.2d 615 (2002) which
was one of the cases Congress intended to partially overturn with its adoption of the ADAAA. See Morris, 817 F.3d
at 1110. We also cited Cash v. Smith, 231 F.3d 1301, 1306 (11th Cir. 2000), another pre-ADAAA case, that turned

8
the 2009 change in the definition of disability, but the case was ultimately decided on a failure of

the employer’s summary judgment proof. There, a governmental employee was involved in a

traffic accident that caused injury to her spine, including some ligament sprains, bruises to the

vertebra, and a herniated disc. 429 S.W.3d at 784. After the employee exhausted her available

leave time, and after no arrangement could be made for part-time work, the governmental entity

terminated the employee. Id. at 785. In response to the employee’s lawsuit, the governmental

entity filed a plea to the jurisdiction, claiming in part that the employee was not disabled because

at the time of the termination, she was “significantly better,” able to drive, and had an essentially

normal range of motion. Id. at 788. However, the employee had testified to experiencing

considerable pain and muscle spasm throughout that time. Id. The spasms and pain required the

employee to take medications that in turn prevented the employee from driving or doing any lifting.

Id. The court concluded that the defendant did not meet its initial burden to show the employee

was not disabled, because it presented no evidence that the employee was not experiencing any of

these problems on the date she was terminated. Id.

We indeed stated in Vasquez that in a disability discrimination claim “the relevant

determination is whether the plaintiff was disabled at the time of the adverse employment action.”

508 S.W.3d at 639. The requirement is a short-hand description of the causation requirement under

the Labor Code. A worker who suffered a sprained ankle that fully recovered ten years prior to an

adverse employment action would be hard pressed to claim disability discrimination because of

the sprained ankle. The requirement does not mean, as TDCJ suggests, that the employee must be

symptomatic at the precise time of the employment action. That view is inconsistent with the 2009

statutory amendments that allow for episodic conditions or diseases that go into remission. It

on the employee’s admission in a deposition denying any substantial limitations of a major life activity at the time of
the complained-of employment actions.

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would also engraft onto the statute an element not explicitly in the statutory text. A simple example

explains the flaw in TDCJ’s argument. If a worker has a badly arthritic ankle that becomes

symptomatic only in cold weather, the worker always has a disability (assuming proof of

impairment to a major life function), but one that is only episodically symptomatic. Certainly

though, an employer could not freely discriminate against the worker in the warmer summer

months when the ankle is not symptomatic. The 2009 addition of Section 21.0021(a)(2)(adding

episodic conditions) forecloses that result.

Application

TDCJ met its initial burden to conclusively show that Flores was not disabled after she

returned to work on August 28, 2013. It presented Dr. Miseheimer’s June 27, 2013 medical record

that diagnosed Flores with spondylolysis of the fifth lumbar vertebra and spondylolisthesis

between L-5 and S-1. The same medical report predicted that with appropriate physical therapy,

Flores would return to a pain free status and could return to “full and active duty at work.” While

on her FMLA leave in 2013, Flores received physical therapy as directed by the doctor. Consistent

with his prediction, Dr. Misenheimer then released Flores to “regular/full duty” on August 28,

2013 and did not assign her any limitations or restrictions.

At that point, the burden shifted to Flores to present some evidence that she was disabled.

She attempts to do so by claiming to have an underlying back condition that impairs a major life

function on an episodic basis. While there is little doubt she produced evidence of having a

permanent condition in her back, she stumbles on showing its episodic reoccurrence in way that

impairs a major life function.

Viewed most favorably to Flores, an MRI shows her to have spondylolysis and

spondylolisthesis in her lower back. No direct medical testimony explains what those terms mean,

10
but Flores testified that her doctor told her the discs in her lower back had deteriorated. She was

told that the loss of discs was causing the nerves to be pinched. Flores testified that the condition

started by at least 2011 when she hurt her back at work. By 2012, she claimed it had become a

serious issue causing her constant shooting pain down one leg. Walking aggravated the pain. By

the end of 2012, she experienced the pain on a daily basis, and for most of the day. In 2013, she

took a five-month leave of absence because of pain in her back and leg. While on leave, she took

medication to control the pain, but it caused her to be very drowsy. For a time, she was unable to

drive herself. We would agree that there is some evidence that during at least part of the five

month leave, and perhaps in 2012, her back limited a major life function.

The evidence does not show, however, that her condition is episodic, at least in the sense

that it would continue to limit major life functions. Dr. Misenheimer told her that she had a

“permanent condition” and that “throughout the years, it would get worse.” Because her disc was

“gone” her nerves were “constantly going to be in jeopardy.” We view Flores’s testimony as

showing only that she would be more susceptible to re-injury, but not that she would have any sort

of regular episodic reoccurrence of what she experienced in the summer of 2013:

[TDCJ Attorney]: Did [Dr. Misenheimer] ever say that you would not be able -- that
you would have a disability for the rest of your life?
[Flores]: Yes, he did.
[TDCJ Attorney]: What did he say?
[Flores]: That that is a permanent condition, and throughout the years, it would get
worse.
[TDCJ Attorney]: And what’s the permanent condition called?
[Flores]: I do not know the name.
[TDCJ Attorney]: And then what’s your disability?
[Flores]: Like I stated, my disk is gone. I totally have no disk, so my nerves are
constantly going to be in jeopardy.
[TDCJ Attorney]: In jeopardy of what?

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 [Flores]: Of getting injured or being affected in -- in any type of way.
[TDCJ Attorney]: And did the doctor tell you what activities would injure your
nerves?
[Flores]: Not at that time, no.
Being in jeopardy of re-injury is not the same as an episodic condition. This testimony also falls

short of providing insight to what sort of symptoms she might suffer in the future, or how those

symptoms might impair a major life function. We have no dispute that a condition that produces

episodic symptoms impairing a major life function is now contemplated as a disability under the

Labor Code. However, nothing in Dr. Misenheimer’s single medical report describes Flores as

having such a condition. And nothing in her testimony reciting what she heard from

Dr. Misenheimer raises a fact issue either.3 We sustain Issue One.

RETALIATION

Flores next contends that TDCJ retaliated against her for engaging in protected activity.

See TEX.LAB.CODE ANN. § 21.055 (making actionable retaliation for an employee engaging in

protected activities). To establish a prima facie case for retaliation, a plaintiff must show that: (1)

she participated in a protected activity; (2) her employer took an adverse employment action

against her; and (3) a causal connection existed between the protected activity and the adverse

employment action. See Burger v. Central Apartment Mgmt., Inc., 168 F.3d 875, 878 (5th Cir.

1999)(Title VII); Dias v. Goodman Mfg. Co., 214 S.W.3d 672, 676 (Tex.App.--Houston [14th

Dist.] 2007, pet. denied)(Texas Labor Code). A protected activity includes: (1) opposing a

3
We recognize, of course, that Flores’s statements about what the physician told her are hearsay. Unobjected to
hearsay, however, may serve as competent evidence. See TEX.R.EVID. 802 (“Inadmissible hearsay admitted without
objection may not be denied probative value merely because it is hearsay.”); City of Keller v. Wilson, 168 S.W.3d 802,
812 (Tex. 2005)(“It has long been the rule in Texas that incompetent evidence is legally insufficient to support a
judgment, even if admitted without objection.”); see also Stone v. Midland Multifamily Equity REIT, 334 S.W.3d 371,
374 (Tex.App.--Dallas 2011, no pet.)(holding that hearsay statement in affidavit filed in support of summary judgment
is a defect in form that must be objected to at the trial). Our problem here is that the unobjected to hearsay statements
are not enough to create a fact issue.

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discriminatory practice; (2) making or filing a charge; (3) filing a complaint; or (4) testifying,

assisting, or participating in any manner in an investigation, proceeding, or hearing.

TEX.LAB.CODE ANN. § 21.055.

Flores alleges that she approached her supervisors and asked for a shift change so she could

obtain physical therapy for her back injury. Even assuming that request to be a protected activity,

TDCJ advances three arguments attacking the retaliation claim: (1) she voluntarily resigned and

was not fired; (2) there is no causal connection between any protected activity and her resignation;

and (3) she cannot demonstrate the “but for” causation standard.

Resignation or Discharge?

TDCJ first challenges whether it took any sort of adverse action against Flores, because

she resigned. From its personnel file, TDCJ presented Flores’s handwritten statement that she

“voluntarily resigned” in lieu of a disciplinary action. But Flores presented sufficient evidence to

raise a fact issue to whether she was constructively discharged.

“Constructive discharge serves as a legal substitute for the discharge element of a

prima facie case of discrimination.” Passons v. University of Texas at Austin, 969 S.W.2d 560,

562 (Tex.App.--Austin 1998, no pet.). That doctrine permits an employee who resigns, rather than

being terminated, to satisfy the discharge requirement of a discriminatory discharge claim. See

Waffle House, Inc. v. Williams, 313 S.W.3d 796, 805 (Tex. 2010)(“A constructive discharge

qualifies as an adverse personnel action under the [Labor Code] . . . .”). The ultimate test for a

constructive discharge is whether the “working conditions [became] so intolerable that a

reasonable person in the employee’s position would have felt compelled to resign.” Pennsylvania

State Police v. Suders, 542 U.S. 129, 141, 130, 124 S.Ct. 2342, 2345, 159 L.Ed.2d 204 (2004).

Courts consider a number of employer actions, such as demotion, or a reduction in salary or job

13
responsibilities, in deciding if the work conditions meet that standard. Aryain v. Wal-Mart Stores

Texas LP, 534 F.3d 473, 481 (5th Cir. 2008).

Evidence that an employee was forced to choose between resigning or being fired may also

be sufficient to raise a fact issue regarding constructive discharge. Gardner v. Abbott, 414 S.W.3d

369, 383 (Tex.App.--Austin 2013, no pet.); Perret v. Nationwide Mut. Ins. Co., 770 F.3d 336, 338-

39 (5th Cir. 2014). In these so-called “ultimatum” cases, courts require something beyond the

employee’s subjective belief that termination was inevitable. See Faruki v. Parsons S.I.P., Inc.,

123 F.3d 315, 319 (5th Cir.1997)(standard met when supervisor told employee he should find

another job, and that he had one week before he would be placed on indefinite unpaid leave); Davis

v. City of Grapevine, 188 S.W.3d 748, 766 (Tex.App.--Fort Worth 2006, pet. denied)(standard met

when manager informed employee that “it would be in his best interest if he decided to resign

rather than be terminated because future employers may ask the City whether Davis resigned or

was terminated”).

Under the ultimatum line of cases, Flores has created a fact issue on constructive discharge.

Upon her return from leave, Major Thompson went over the disciplinary charges. Flores asked

for assistance such as through the union, but was told they needed to proceed immediately.

According to Flores, Major Thompson “told me that I either resigned or I was going to get fired

for having all these disciplinaries.” “I was basically told either resign, because it was better for

me, or get fired.”

TDCJ focuses on its right to discipline its employees, arguing that the mere presentation of

a charge in a step-discipline process, like ordinary workplace criticism, would not cause a

reasonable person to resign. See Wal-Mart Stores, Inc. v. Bertrand, 37 S.W.3d 1, 9 (Tex.App.--

Tyler 2000, pet. denied)(“Thus, we conclude that Hansen’s imposition of step one was not

14
evidence of constructive discharge.”). Flores’ proof, however, goes beyond the mere presentation

of disciplinary charges. She contests some of the underlying charges. She presented testimony

from the former warden of her jail, Joel Barbosa, that the presentation of the five charges was not

in accord with TDCJ’s policy. Rather, under the step-disciplinary scheme, TDCJ would ordinarily

present a single disciplinary charge that might include several “instances,” some of which then

might be dismissed on ultimate hearing of the matter. And most importantly, she claims that Major

Thompson went outside the ordinary disciplinary process by giving her the choice between

resignation or termination well before any hearing of the facts of the charges. She has raised at

least a fact issue for constructive discharge.

Causation

TDCJ’s second and third arguments challenge the causation element necessary for a

retaliation claim. An employee must establish that absent her protected activity, the materially

adverse employment action would not have occurred when it did. See Gumpert v. ABF Freight

Sys., Inc., 293 S.W.3d 256, 262 (Tex.App.--Dallas 2009, pet. denied); McMillon v. Texas Dept. of

Ins., 963 S.W.2d 935, 940 (Tex.App.--Austin 1998, no pet.). In other words, a plaintiff must prove

that she would not have suffered an adverse employment action “but for” engaging in the protected

activity. Navy v. College of the Mainland, 407 S.W.3d 893, 901 (Tex.App.--Houston [14th Dist.]

2013, no pet.); see also University of Texas Southwestern Medical Center v. Nassar, 570 U.S. 338,

133 S.Ct. 2517, 2533, 186 L.Ed.2d 503 (2013)(discussing causation requirement for retaliation

claim brought under Title VII). However, the employee “need not establish that the protected

activity was the sole cause of the employment action.” Donaldson v. Texas Dept. of Aging and

Disability Services, 495 S.W.3d 421, 441-42 (Tex.App.--Houston. [1st Dist.] 2016, pet denied);

Herbert v. City of Forest Hill, 189 S.W.3d 369, 377 (Tex.App.--Fort Worth 2006, no pet.).

15
 Evidence sufficient to establish a causal link between an adverse employment decision and

a protected activity may include: (1) the employer’s failure to follow its usual policy and

procedures in carrying out the challenged employment actions; (2) discriminatory treatment in

comparison to similarly situated employees; (3) knowledge of the discrimination charge by those

making the adverse employment decision; (4) evidence that the stated reason for the adverse

employment decision was false; and (5) the temporal proximity between the employee’s

conduct and the discharge. Crutcher v. Dallas Independent School Dist., 410 S.W.3d 487, 494

(Tex.App.--Dallas 2013, no pet.), citing Green v. Lowe’s Home Ctrs., Inc., 199 S.W.3d 514, 519

(Tex.App.--Houston [1st Dist.] 2006, pet. denied)(discussing factors in context of termination of

employment).

Time Proximity

TDCJ contends that the five-month gap between any protected activity and the date of

resignation forecloses any showing of a causal connection between the two. The latest date of any

protected activity was March 13, 2013, the date Flores obtained FMLA leave. The alleged

constructive discharge occurred on August 28, 2013. Does the resulting five-month time gap belie

any proof of causation? Given the facts before us, we reject the argument that the time gap was

too long.

Retaliation claims are often provable only through circumstantial evidence that includes

the temporal proximity between the protected activity and the alleged retaliatory action. Univ. of

Texas at El Paso v. Esparza, 510 S.W.3d 147, 159-60 (Tex.App.--El Paso 2016, no pet.). While

temporal proximity may indeed raise an inference of retaliation, the events must be very close

in time. Cf. Texas Dept. of State Health Services v. Rockwood, 468 S.W.3d 147, 157-58

(Tex.App.--San Antonio 2015, no pet.)(“we hold this temporal proximity of approximately one

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month to be sufficient to raise a fact issue on the causation element of Rockwood’s retaliatory

discharge claim”); Evans v. City of Houston, 246 F.3d 344, 354 (5th Cir. 2001)(five-day span

between giving testimony and adverse employment action sufficient for prima facie case), with

Clark County School Dist. v. Breeden, 532 U.S. 268, 273-74, 121 S.Ct. 1508, 149 L.Ed.2d 509

(2001) (holding that actions taken after twenty months “suggests, by itself, no causality at all”);

Azubuike v. Fiesta Mart, Inc., 970 S.W.2d 60, 65 (Tex.App.--Houston [14th Dist.] 1998, no

pet.)(holding that a two and one-half year gap, “with nothing more, is too long to establish that

there was a causal connection”); Crutcher, 410 S.W.3d at 496-97 (five-year time gap failed to

support causal connection); see also Fields v. Teamsters Local Union No. 988, 23 S.W.3d 517,

529 (Tex.App.--Houston [1st Dist.] 2000, pet. denied)(noting proximity may establish causal

connection when protected activity and adverse employment action are separated by weeks, as

opposed to months and years).

“But it also is true that there is no hard-and-fast rule that any specified amount of time is

too removed for an inference of causation. Especially where a defendant retaliates at the first

opportunity that is presented, a plaintiff will not be foreclosed from making out a prima facie case

despite a substantial gap in time.” Pardo-Kronemann v. Jackson, 541 F.Supp.2d 210, 218 (D.D.C.

2008), aff’d in part, rev’d in part on other grounds, 601 F.3d 599 (D.C.Cir. 2010); see also San

Antonio Water System v. Nicholas, 441 S.W.3d 382, 392 (Tex.App.--San Antonio 2013), rev’d on

other grounds, 461 S.W.3d 131 (Tex. 2015); Alamo v. Bliss, 864 F.3d 541, 556 (7th Cir. 2017)

(delay in retaliatory action explained by employees absence due to medical leave); Summa v.

Hofstra Univ., 708 F.3d 115, 128 (2nd Cir. 2013)(four-month time gap sufficient to create fact

issue particularly when the adverse action occurred at the first opportunity to retaliate).

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 Flores relies on this “first opportunity” precept, arguing that TDCJ retaliated against her at

its first chance when she returned from FMLA leave. The disciplinary charges arose out of an

investigation begun on March 13 and 15, 2013. Because Flores was on leave from March 13, 2013

to August 28, 2013, TDCJ did not have her responses to the charges, which are part of its

disciplinary process. Her return date on August 28 was therefore the first opportunity that the

TDCJ had to vet the charges and act upon them. Flores contends that immediately upon her return,

TDCJ used the charges to compel her resignation because she had exercised her rights under the

Labor Code. This circumstance might explain the five-month time gap, and thus she raises a fact

issue on causation vis-à-vis any temporal proximity.

“But For” Causation

In a somewhat related argument, TDCJ also argues that Flore cannot meet her burden to

prove “but for” causation. The gist of the argument is that TDCJ claims to have shown with

“indisputable documentary evidence” one of the disciplinary charges against her would have led

to a termination. That charge related to Flores attempting to establish a relationship with an

offender. TDCJ claims she revealed her marital status and phone number to the offender. The

investigation report included a statement from the offender confirming that Flores initiated the

contact, and that she provided her telephone number and marital status to him. The report also

contains the statements from several other detention officers who witnessed Flores and the

offender conversing at unexpected times or places. One officer stated that both were “laughing

and smiling.”

Yet our record also contains Flores’ denial that she gave the offender her phone number or

marital status. She claims she conversed with the offender, but only on matters germane to the

unit. She also offered the affidavit of the former warden who states that inmates sometimes make

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up offenses against officers to gain concessions. Because of that, TDCJ “always treats an inmate’s

version of events with a great deal of skepticism” when a dispute comes down the officer’s word

against the inmate.

Moreover, disciplinary charges brought by TDCJ against its employees are classified by

their seriousness on a scale of one (most serious) to four (least serious). In the most serious offense,

TDCJ charged Flores with initiating a relationship with a detainee, which is categorized as a Level

2 offense. The first offense of a Level 2 charge can result in anything from probation to

termination. For termination, however, the “reprimanding authority” needed to submit “sufficient

reason and documentation justifying the recommendation.” TDCJ has presented nothing

containing that recommendation. Indeed, TDCJ presented no conclusive evidence that it intended

to terminate Flores. Instead, it claimed she resigned before the disciplinary process took its course.

We cannot say that the record conclusively shows that Flores would have been terminated in any

event. And without some conclusive evidence negating causation, Flores carried no burden to

come forward with affirmative evidence establishing causation. Issue Two is overruled.

Having sustained Issue One, we reverse the plea to the jurisdiction in part and render

judgment dismissing the disability discrimination claim under Section 21.105. Having overruled

Issue Two, we affirm the order denying the plea to the jurisdiction with respect to the retaliation

claim.

June 22, 2018
ANN CRAWFORD McCLURE, Chief Justice

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

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