Texas Department of Transportation v. Albert Lara, Jr.

IN THE SUPREME COURT OF TEXAS
════════════
NO. 19-0658
════════════

TEXAS DEPARTMENT OF TRANSPORTATION, PETITIONER,

v.

ALBERT LARA, JR., RESPONDENT

═══════════════════════════════════════════
ON PETITION FOR REVIEW FROM THE
COURT OF APPEALS FOR THE THIRD DISTRICT OF TEXAS
═══════════════════════════════════════════

Argued December 1, 2020

CHIEF JUSTICE HECHT delivered the opinion of the Court.

Petitioner Texas Department of Transportation (TxDOT) terminated respondent Albert

Lara, Jr.’s employment after he exhausted his five months of sick leave while recovering from

surgery. Lara sued under the Texas Commission on Human Rights Act (TCHRA), 1 alleging in part

that TxDOT (1) failed to reasonably accommodate his disability by granting him additional leave

without pay in accordance with its policy, in violation of Section 21.128; 2 and (2) discharged him

in retaliation for his request for additional leave, in violation of Section 21.055. 3 On the record

presented, we hold that Lara’s accommodation claim is viable and that Lara’s leave request did

1
TEX. LAB. CODE ch. 21.
2
Id. § 21.128.
3
Id. § 21.055.
not oppose a discriminatory practice, as required for a retaliation claim. Accordingly, we affirm

the court of appeals’ judgment on those claims. 4 We disagree with the court of appeals that Lara

did not plead a disability-discrimination claim under Section 21.051 5 and remand to the court of

appeals to adjudicate TxDOT’s challenge to the trial court’s denial of its motion to dismiss that

claim.

I

A

TxDOT is a large state agency with some 11,000 employees. For 21 years, Lara worked as

a general engineering technician—informally referred to as an inspector—in TxDOT’s Milam

County office, located in its Bryan District. Lara oversaw TxDOT contracts for maintenance

activities such as litter removal, landscaping, and guardrail repair, and he personally inspected the

contractors’ work in the field. These inspections sometimes required Lara to stoop, crawl, or move

heavy loads.

In April 2015, Lara fell ill with stomach issues and was hospitalized. On May 7, he had

surgery on his colon, intestine, and bladder. Lara was discharged from the hospital a few days later

to recover at home, but the surgery left him with an incision that needed to heal, a colostomy bag,

a catheter, and drains.

Lara exhausted his vacation and personal sick leave early on. In mid-May, Lara submitted

forms to TxDOT requesting benefits under the federal Family Medical Leave Act (FMLA) and the

4
577 S.W.3d 641, 652 (Tex. App.—Austin 2019).
5
TEX. LAB. CODE § 21.051.

2
state employees’ sick-leave pool. 6 TxDOT’s sick-leave-pool certification form includes several

questions directed to the employee’s healthcare provider. In response to questions asking the

provider’s “best estimate” of when Lara would be “able to perform the essential functions of [his]

position” and do so “[w]ithout restrictions”, Lara’s physician answered June 23. Another question

asked whether Lara’s health issues amounted to a “catastrophic condition”, which the form defined

as an illness or injury that is likely to cause incapacitation for at least 12 weeks. Lara’s physician

checked “no”. That made Lara initially ineligible to draw from the sick-leave pool, 7 though he was

approved for unpaid leave under the FMLA.

Lara and his physician submitted forms to TxDOT to extend his leave twice more. The first

extension request was submitted on June 15, eight days before Lara was scheduled to return to

work. This time Lara’s physician gave July 21 as his best estimate of the date that Lara could return

without restrictions. In response to a question on the FMLA form asking the probable duration of

Lara’s condition, Lara’s physician wrote “6 months from date of surgery”. The June 15 forms also

included the physician’s handwritten notes explaining that Lara had a surgical wound limiting his

physical abilities that would need to heal before Lara could return to work. Additionally, Lara

would need another surgery in November to reverse the colostomy. Because the June forms

reflected that Lara’s health issues qualified as catastrophic, Lara was granted paid leave from the

sick-leave pool.

On July 15, Lara submitted a second leave-extension request that stated a new estimated

return date of October 21. Lara’s physician stated in the form that Lara would remain incapacitated

6
See TEX. GOV’T CODE §§ 661.001–.008.
7
See id. § 661.006(a) (“An employee may not withdraw time from the sick leave pool except in the case of
catastrophic illness or injury of the employee or the employee’s immediate family.”).

3
through November and would need surgery to reverse the colostomy after that. TxDOT granted

Lara additional paid leave from the sick-leave pool through September 16, the maximum available

to him under state law. On September 9, TxDOT wrote Lara that he would be “administratively

separated” from the agency effective September 16 so that the agency could hire a full-time

employee to perform his job duties.

B

Lara concedes that at the time of his termination, no more paid leave was available to him.

But TxDOT has a leave without pay (LWOP) policy. Under that policy, an employee suffering

from illness or injury can receive up to one year of unpaid leave after his paid leave expires. The

policy states that LWOP is discretionary but that an employee’s supervisor “must grant” LWOP if

the employee “requires [it] as a reasonable accommodation for a disability”. The policy states that

LWOP status “represents a guarantee of employment for a specific, agreed-upon period of

time . . . but not necessarily for the same job held by the employee when placed on LWOP.” The

policy explains that TxDOT may need to fill the employee’s position if doing so would “serve[]

the best business interests of the department”, but once the employee is able to return to work, the

employee will be offered the first available position for which the employee is qualified. The last

page of the policy instructs an employee requesting LWOP to “[w]rite a memo to their supervisor

stating . . . the reason(s) the employee needs to take LWOP, and . . . the estimated date the

employee plans to return to work” and to “[c]omplete any additional forms or provide other

documentation and information as may be required by their HR personnel.”

TxDOT wrote Lara on July 10 that if he were unable to return to work on his then-expected

return date of July 20, he should return the attached forms updating the agency on his status. The

4
letter also advised Lara that he “may be eligible” for LWOP but that “[i]n order to be placed on

LWOP status, [Lara] must request [it]”. The attachments to the letter included the LWOP policy.

Lara never submitted a memo requesting to be placed on LWOP, as the policy instructs.

Still, Lara contends that between May and August he consistently pressed for

accommodations to keep his job. Lara testified by deposition that shortly after his discharge from

the hospital, his supervisor, Brad Powell, visited him at his home. Still recovering, Lara

emphasized his desire to keep his job and asked Powell about the possibility of light duty.

According to Lara, Powell responded by urging Lara to keep his medical paperwork up to date.

Lara also claims that between May and September he was “constantly calling” Powell and others

to ask what he needed to do to remain employed. In an affidavit attached to his summary judgment

response, Lara stated that on August 18 he spoke to office manager Jennifer Trowbridge and

assistant supervisor Robert Talafuse to request LWOP. According to Lara, they told him that Bryan

district engineer Lance Simmons would decide whether Lara qualified. In a September 1 meeting

with human resources, Simmons decided that Lara should be terminated. He signed Lara’s

termination letter on September 9.

C

Lara sued TxDOT under the TCHRA for disability discrimination “includ[ing], without

limitation, TxDOT’s failure to engage in the interactive process; failure to provide a reasonable

accommodation to Lara, including but not limited to, extended medical leave, leave without pay

(LWOP), transfer to a vacant TxDOT position for which he was qualified; and termination of

Lara’s employment.” Lara’s petition cites Section 21.051, which provides that “[a]n employer

commits an unlawful employment practice if because of . . . disability . . . the

5
employer . . . discharges an individual, or discriminates in any other manner against an individual

in connection with . . . the terms, conditions, or privileges of employment”. 8 Lara also sued

TxDOT for retaliating against him “for making a request for a reasonable

accommodation . . . includ[ing], without limitation, . . . refus[ing] to provide[] extended medical

leave or LWOP”. Section 21.055 makes it an unlawful employment practice if an employer

“retaliates or discriminates against a person who . . . opposes a discriminatory practice[,] . . . files

a complaint[,] . . . or participates in any manner in an investigation”. 9

TxDOT filed a combined plea to the jurisdiction and motion for summary judgment based

on sovereign immunity, which for ease of reference we will refer to as a motion to dismiss. The

trial court denied the motion without explanation in a brief order.

A divided panel of the court of appeals affirmed in part and reversed and rendered in part. 10

Section 21.128(a) makes it unlawful for an employer to “fail or refuse to make a reasonable

workplace accommodation to a known physical . . . limitation of an otherwise qualified individual

with a disability who is an employee . . . unless the [employer] demonstrates that the

accommodation would impose an undue hardship on the operation of [its] business”. 11 The panel

majority concluded that Lara had raised fact issues on the elements on which he had the burden of

proof—that he was qualified and had requested a reasonable accommodation—and to overcome

TxDOT’s affirmative defense of undue hardship. 12 The dissenting justice adopted TxDOT’s view

8
TEX. LAB. CODE § 21.051.
9
Id. § 21.055(3)–(4).
10
577 S.W.3d 641, 652 (Tex. App.—Austin 2019) (2–1).
11
TEX. LAB. CODE § 21.128(a).
12
577 S.W.3d at 647–649.

6
that Lara had essentially requested indefinite leave, which is not a reasonable accommodation. 13

Although the parties had briefed two disability-discrimination theories (discrimination by

termination under Section 21.051 and discrimination by failure to accommodate under Section

21.128), the panel read Lara’s pleadings as asserting only the latter. 14

The panel unanimously concluded that the trial court should have dismissed Lara’s

retaliation claim under Section 21.055 because Lara had not, before he was terminated, engaged

in a protected activity by opposing a discriminatory practice, making a complaint, or participating

in an investigation. 15 Because Lara did not file a discrimination complaint with the Texas

Workforce Commission until after he was terminated, the court reasoned that the complaint could

not have caused Lara’s termination. 16 Relying on federal-court decisions interpreting the

Americans with Disabilities Act (ADA) and caselaw from another Texas court of appeals, Lara

argued that his request for LWOP or another accommodation qualified as a protected activity under

Section 21.055. The court rejected this argument because of differences in language between the

ADA and Section 21.055 and because it determined that the four-month delay between Lara’s first

request for leave and his termination broke any causal link between the two. 17

We granted both parties’ petitions for review.

13
Id. at 653 (Rose, C.J., concurring in part and dissenting in part).
14
Id. at 647 n.1 (majority opinion).
15
Id. at 649–651; id. at 652–653 (Rose, C.J., concurring in part and dissenting in part).
16
Id. at 650 (majority opinion).
17
Id. at 651–652.

7
 II

“The TCHRA waives immunity, but only when the plaintiff states a claim for conduct that

actually violates the statute.” 18 To prevail on a claim of immunity, the governmental defendant

may “challenge[] whether the plaintiff has alleged facts that affirmatively demonstrate the court’s

jurisdiction to hear the case”, “the existence of those very jurisdictional facts”, or both. 19 Where

the defendant challenges the existence of jurisdictional facts, as TxDOT did here in its motion to

dismiss, the court “must move beyond the pleadings and consider evidence”. 20 The analysis then

“mirrors that of a traditional summary judgment”. 21

Lara thus had the burden to “raise at least a genuine issue of material fact” on each element

of his claims. 22 To determine whether he met that burden, “we must take as true all evidence

favorable to [him], indulging every reasonable inference and resolving any doubts in [his] favor.” 23

The express purposes of the TCHRA include “provid[ing] for the execution of the policies”

of Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e et seq.) and Title I of the Americans

with Disabilities Act of 1990 (42 U.S.C. § 12101 et seq.). 24 Accordingly, “we have consistently

18
Alamo Heights Indep. Sch. Dist. v. Clark, 544 S.W.3d 755, 770 (Tex. 2018).

Mission Consol. Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629, 635 (Tex. 2012); see also Alamo Heights,
19

544 S.W.3d at 770 (“A jurisdictional plea may challenge the pleadings, the existence of jurisdictional facts, or both.”).
20
Alamo Heights, 544 S.W.3d at 770.
21
Garcia, 372 S.W.3d at 635.
22
Alamo Heights, 544 S.W.3d at 771; see Garcia, 372 S.W.3d at 635 (“[T]he plaintiff is then required to
show that a disputed material fact exists regarding the jurisdictional issue.”).
23
Alamo Heights, 544 S.W.3d at 771.
24
TEX. LAB. CODE § 21.001(1), (3).

8
held that those analogous federal statutes and the cases interpreting them guide our reading of the

TCHRA.” 25

III

TxDOT argues that the trial court should have dismissed Lara’s claim for discrimination

under Section 21.128(a). Under that section, “[i]t is an unlawful employment practice” for an

employer “to fail or refuse to make a reasonable workplace accommodation to a known physical

or mental limitation of an otherwise qualified individual with a disability who is an employee”,

unless the employer “demonstrates that the accommodation would impose an undue hardship on

the operation of [its] business”. 26 There is nearly identical language in the ADA. Section 12112(a)

prohibits discrimination “against a qualified individual on the basis of disability”, and

§ 12112(b)(5)(A) defines discrimination to include “not making reasonable accommodations to

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

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

an undue hardship on the operation of the [employer’s] business”. 27 Paraphrased and reordered,

TxDOT’s arguments here are that (1) there is no evidence that Lara requested LWOP; and (2) any

request Lara made “was effectively for indefinite leave”, 28 which either would render Lara

unqualified or would not be a reasonable accommodation as a matter of law.

25
Garcia, 372 S.W.3d at 634.
26
TEX. LAB. CODE § 21.128(a).
27
42 U.S.C. § 12112(a), (b)(5)(A).
28
Br. on the Merits for Pet’r TxDOT 24.

9
 A

We agree with the court of appeals that TxDOT’s first argument “is belied by the record.” 29

TxDOT points out that Lara did not submit a memo to his supervisor, as the LWOP policy

instructs. But the federal authorities to which we look for guidance in interpreting the TCHRA

make clear that a request for an accommodation need not be formal and that allowing employers

to impose fine-print requirements for requesting an accommodation would subvert the TCHRA’s

purpose.

A guidance document on the interpretation of federal discrimination laws issued by the

U.S. Equal Employment Opportunity Commission states that to make an accommodation request,

an employee need only “let the employer know that [the employee] needs an adjustment or change

at work for a reason related to medical condition.” 30 The request need not be in writing and need

not mention discrimination laws or use the words “reasonable accommodation”. The request can

be made “in conversation” and with “plain English”. The guidance document lists several

examples of what a real-world request for accommodation might look like. Example B states: “An

employee tells his supervisor, ‘I need six weeks off to get treatment for a back problem.’”

The federal caselaw is consistent with this approach. The U.S. Court of Appeals for the

Fifth Circuit has cited to and parroted the lenient standard set out in the EEOC Guidance 31 while

29
577 S.W.3d 641, 647 (Tex. App.—Austin 2019).
30
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, EEOC-CVG-2003-1, ENFORCEMENT GUIDANCE
ON REASONABLE ACCOMMODATION AND UNDUE HARDSHIP UNDER THE ADA (2002) [hereinafter EEOC REASONABLE
ACCOMMODATION GUIDANCE], https://www.eeoc.gov/laws/guidance/enforcement-guidance-reasonable-
accommodation-and-undue-hardship-under-ada#requesting.
31
For instance, the Fifth Circuit explained in EEOC v. Chevron Phillips Chemical Co. that:

An employee who needs an accommodation because of a disability has the responsibility of
informing her employer. The employee must explain that the adjustment in working conditions or

10
explaining that “once the employee presents a request for an accommodation, the employer is

required to engage in the interactive process so that together they can determine what reasonable

accommodations might be available.” 32 The Third Circuit has likewise rejected the imposition of

formalistic requirements on the plaintiff:

What matters under the ADA are not formalisms about the manner of the request,
but whether the employee or a representative for the employee provides the
employer with enough information that, under the circumstances, the employer can
be fairly said to know of both the disability and desire for an accommodation. 33

Applying the lenient standard articulated by the federal authorities, “tak[ing] as true all

evidence favorable to” Lara, and “indulging every reasonable inference and resolving any doubts

in [his] favor”, 34 we conclude that a reasonable jury could find that Lara requested LWOP before

he was terminated. Specifically, Lara testified by deposition that between the time of his

hospitalization and his termination, he was “constantly calling” his supervisor, Brad Powell, and

others to communicate his desire to remain employed when his FMLA and sick leave expired.

Lara further testified about an August 18 telephone conversation with office manager Trowbridge

and assistant supervisor Talafuse in which LWOP was specifically discussed. And it is undisputed

that Lara kept TxDOT apprised of the status of his recovery and projected return through

submission of FMLA and sick-leave forms. The cases cited by TxDOT are factually

duties she is seeking is for a medical condition-related reason, but the employee does not have to
mention the ADA or use the phrase ‘reasonable accommodation.’ Plain English will suffice.

570 F.3d 606, 621 (5th Cir. 2009) (citing EEOC REASONABLE ACCOMMODATION GUIDANCE, supra note 30)
(additional citation omitted).
32
Id. at 621–622.
33
Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 313 (3d Cir. 1999).
34
Alamo Heights Indep. Sch. Dist. v. Clark, 544 S.W.3d 755, 771 (Tex. 2018).

11
distinguishable and cannot support a conclusion that Lara failed to request an accommodation as

a matter of law in light of the evidence here. 35

B

TxDOT’s primary argument is that granting Lara LWOP under the circumstances would

have rendered Lara unqualified or would not have been a reasonable accommodation as a matter

of law. In a case like this one where employee leave is at issue, these arguments are two sides of

the same coin.

TxDOT reasons that because Lara’s physician had already pushed Lara’s return date back

multiple times and indicated that Lara would still need colostomy-removal surgery in the future,

“Lara’s request was effectively for indefinite leave.” 36 TxDOT frames the legal issue as whether

it was obligated to hold Lara’s job open until he was fully recovered, regardless of how long that

took. 37 It then points to affidavit testimony by Bryan district engineer Lance Simmons that Lara

was the only inspector assigned to the Milam County office and that continuing to reassign other

inspectors in the Bryan district to cover Lara’s duties would put an untenable strain on the

35
See Burch v. City of Nacogdoches, 174 F.3d 615, 621 (5th Cir. 1999) (affirming summary judgment for
the City where “the record [did] not offer a single example of” the firefighter plaintiff’s having “ask[ed] the City to
transfer him to a specific light-duty job” or offering any evidence “implying that he wanted one”); Hester v.
Williamson County, No. A-12-CV-190-LY, 2013 WL 4482918, at *3, 7 (W.D. Tex. Aug. 21, 2013) (plaintiff
mechanic, who suffered complications from diabetes, was terminated after exhausting all of his paid and unpaid leave
and “the Court [could not] find in the record any evidence” that plaintiff had requested an accommodation); Thornburg
v. Frac Tech Servs., Ltd., 709 F. Supp. 2d 1166, 1172 (E.D. Okla. 2010) (“It should first be noted that evidence has
not been presented to show Plaintiff ever requested an accommodation from Defendant.”); LeBlanc v. Lamar St. Coll.,
232 S.W.3d 294, 300–302 (Tex. App.—Beaumont 2007, no pet.) (affirming summary judgment for the defendant
where the evidence conclusively showed that the plaintiff was not qualified for a job requiring the ability to tutor math
and English students, and the plaintiff had “made no suggestions regarding how the school could accommodate her
deficiencies in math and English”).
36
Br. on the Merits for Pet’r TxDOT 24.
37
Id. at 22 (“Holding [Lara’s] job open until he could finally return was not a reasonable
accommodation . . . .”); Reply Br. on the Merits for Pet’r TxDOT 10 (“TxDOT was not obligated to hold [Lara’s] job
open for nearly six months while he healed from surgery, even assuming he could have returned on October 21.”).

12
Department. Simmons testified that he needed to hire a full-time inspector to cover Lara’s job but

could not do so as long as the position was formally occupied.

TxDOT does not argue that leave can never be a reasonable accommodation under the

TCHRA. Nor could it. Yet it urges the Court to adopt a bright-line rule that several months’ leave

is never reasonable. TxDOT points to federal decisions it characterizes as concluding that even a

few months’ leave is an unreasonable accommodation. But a closer inspection reveals that most

of these cases are factually distinguishable. 38 Federal courts have also recognized that whether

leave is a reasonable accommodation “turns on the facts of the case” 39 and that the reasonable-

accommodation inquiry is “ill-served by per se rules or stereotypes.” 40

TxDOT relies heavily on Hwang v. Kansas State University, in which the Tenth Circuit

opined that a six-month leave of absence would almost always be unreasonable. 41 We do not think

38
For example, in Byrne v. Avon Products, Inc., a night-shift employee named Byrne was fired after being
caught sleeping on the job. 328 F.3d 379, 380 (7th Cir. 2003). He turned out to have major depression. After two
months of treatment, Byrne was fit to resume working, but Avon would not take him back. Byrne’s suit for
discrimination under the ADA failed on summary judgment and on appeal. According to the court of appeals, Byrne
“contend[ed] that he should have been accommodated by being allowed not to work”, and “his only proposed
accommodation [was] not working for an extended period of time”. Id. at 380–381. The court explained that “[a]n
inability to work for a multi-month period removes a person from the class protected by the ADA”, id., but the context
in which the statement was made is a far cry from this case. Here, TxDOT was aware of Lara’s medical condition
from its inception and had a written policy that provided for accommodation.

Another example is Stallings v. Detroit Public Schools, 658 F. App’x 221 (6th Cir. 2016). Stallings was
forced to retire after a debilitating knee condition left her unable to teach in the classroom. In her subsequent lawsuit,
Stallings claimed that the school district should have accommodated her with four months of leave, but she had
acknowledged in her resignation letter and application for federal disability benefits that she was totally disabled and
that the disability was expected to last much longer than four months. Id. at 222–226. The court of appeals affirmed
the district court’s grant of summary judgment for the school district. Id. at 227. Here, by contrast, there is evidence
that Lara requested LWOP for just five weeks after the expiration of his paid benefits under a policy that provided for
LWOP for up to a year.
39
Criado v. IBM Corp., 145 F.3d 437, 443 (1st Cir. 1998).
40
García-Ayala v. Lederle Parenterals, Inc., 212 F.3d 638, 650 (1st Cir. 2000).
41
753 F.3d 1159, 1161 (10th Cir. 2014) (“Must an employer allow employees more than six months’ sick
leave or face liability under the Rehabilitation Act? Unsurprisingly, the answer is almost always no.”).

13
Hwang helps TxDOT here. Plaintiff Hwang had a one-year contract with Kansas State to teach

classes in the fall, spring, and summer semesters. Before the start of the fall semester, Hwang was

diagnosed with cancer and obtained leave to receive treatment under a university policy providing

for six months of paid sick leave. When the six months expired and Hwang was unable to resume

teaching, Kansas State refused to allow her additional leave, “explaining that it had an inflexible

policy allowing no more than six months’ sick leave.” 42 The district court dismissed Hwang’s

discrimination claim under the federal Rehabilitation Act, and the Tenth Circuit affirmed. 43 Hwang

complained about the university’s sick-leave policy being inflexible, but the court explained that

“an inflexible leave policy can serve to protect rather than threaten the rights of the disabled—by

ensuring disabled employees’ leave requests aren’t secretly singled out for discriminatory

treatment, as can happen in a leave system with fewer rules, more discretion, and less

transparency.” 44 In sum, the university had protected itself by having a clear, uniformly applied

policy.

Another Tenth Circuit case, Rascon v. U S West Communications, Inc., provides a

counterpoint to Hwang. 45 There, plaintiff Rascon, a Vietnam veteran, requested leave from his job

as a network technician at U S West to attend an inpatient treatment program for posttraumatic

stress disorder. Rascon informed his supervisor that the treatment program would last

approximately four months and requested paid leave under U S West’s disability plan, but he was

42
Id.
43
Id. at 1165.
44
Id. at 1164.
45
143 F.3d 1324 (10th Cir. 1998), abrogated on other grounds by New Hampshire v. Maine, 532 U.S. 742
(2001).

14
granted only unpaid leave in 30-day increments and only on the condition that his doctors supply

certain information. Rascon was terminated before his discharge from treatment. After a bench

trial, the district court rendered judgment for Rascon on his claim for disability discrimination

under the ADA. 46

On appeal, U S West challenged the district court’s conclusion that the leave of absence

Rascon requested was reasonable. The Tenth Circuit rejected this argument. To start, the court

explained that although U S West “frame[d] the issue as whether attendance is an essential

function of Mr. Rascon’s job”, “[t]hat simply is not the relevant inquiry when a reasonable

accommodation of disability leave is at issue.” 47 Rather, when leave is the requested

accommodation, “the question whether attendance is an essential [job] function is equivalent to

the question of what kind of leave policy the company has.” 48 The court also rejected U S West’s

argument that granting Rascon the time off had caused the company undue hardship, reasoning in

part that U S West “was not following its own policies”, which provided for more generous leave

options, including paid disability leave for a year, unpaid disability leave for 6 months, and unpaid

personal leave for a year. 49

This case is more like Rascon than Hwang. TxDOT’s LWOP policy authorizes an

employee who has already exhausted his paid leave to request LWOP “for up to 12 months” for

illness or injury and states that TxDOT “must grant” the employee’s request if the employee

46
Id. at 1326.
47
Id. at 1333.
48
Id.
49
Id. at 1334–1335.

15
“requires LWOP as a reasonable accommodation for a disability”. TxDOT’s merits brief includes

an express concession that “Lara had a disability”, at least “for purposes of this appeal.” 50

The policy also makes clear that granting an employee LWOP and filling the employee’s

position are not mutually exclusive choices. The policy states that while LWOP is “a guarantee of

employment for a specific, agreed-upon period of time”, the guarantee is “not necessarily for the

same job held by the employee when placed on LWOP.” The policy expressly contemplates that

TxDOT may need to hire another person to do the employee’s job and states that TxDOT will do

so if TxDOT “believes it serves the best business interests of the department”. In the event that an

employee’s position is filled when he is able to return to work, he “will be offered the first available

nonposted position” for which he is qualified that is in his region and that pays “no more than two

salary groups lower than [his] previous position”.

TxDOT takes pains to avoid acknowledging the policy. When it does, it claims that the

policy gives it unfettered discretion to grant or deny LWOP—a reading that is incompatible with

the policy’s text. At oral argument, TxDOT also argued that the policy is relevant only to the

affirmative defense of undue hardship, which it has not pursued in this Court, 51 and that the policy

is not relevant to the issue whether Lara’s request for LWOP was reasonable. We disagree. The

50
Br. on the Merits for Pet’r TxDOT 13 n.3 (“While TxDOT may challenge whether Lara’s condition
amounted to a disability, should this case proceed to trial, TxDOT assumes Lara had a disability for purposes of this
appeal.”).
51
TxDOT did argue undue hardship in the lower courts. See TEX. LAB. CODE § 21.128(b) (“[U]ndue
hardship . . . is a defense to a complaint of discrimination made by an otherwise qualified individual with a
disability. . . . [T]he commission shall consider the reasonableness of the cost of any necessary workplace
accommodation and the availability of alternatives or other appropriate relief.”). The court of appeals concluded that
Lara had raised a fact issue to defeat the defense. 577 S.W.3d 641, 649 (Tex. App.—Austin 2019). TxDOT has not
challenged that holding here. See Reply Br. on the Merits for Pet’r TxDOT 12 n.4.

16
reasonableness of an employee’s request for leave depends on the circumstances presented, and

one of the circumstances present here is TxDOT’s written LWOP policy.

TxDOT’s refrain that Lara had effectively requested indefinite leave is also undermined by

the evidence that the last form submitted by Lara’s physician stated an anticipated return date of

October 21, just five weeks after Lara’s termination became effective on September 16. Moreover,

when Lara was fired, there was no indication that he would not return on time other than the

physician’s note that Lara would need an additional surgery in the future. Lara testified by affidavit

that at the time of his termination, there were about 20 inspectors total in the Bryan district as well

as a number of additional employees who were capable of performing inspections, and it was

common practice for inspectors to travel within the district to cover one another’s territories as

needed, even if that need lasted for months.

We agree with TxDOT that indefinite leave is not a reasonable accommodation, but Lara’s

evidence that his request was not for indefinite leave is sufficient to defeat TxDOT’s motion to

dismiss his claim for discrimination by failure to accommodate under Section 21.128(a) of the

TCHRA. The court of appeals correctly affirmed the trial court’s denial of TxDOT’s motion to

dismiss Lara’s failure-to-accommodate claim under Section 21.128(a).

IV

Lara challenges the court of appeals’ judgment dismissing his retaliation claim under

Section 21.055. That section provides that “[a]n employer . . . commits an unlawful employment

practice if the employer . . . retaliates or discriminates against a person who . . . opposes a

discriminatory practice[,] makes or files a charge[,] . . . or participates in any manner in an

17
investigation”. 52 “If the employee can establish a prima facie case of [retaliation], a rebuttable

presumption of [retaliation] arises”. 53 “But when the prima facie case is rebutted, there is no

presumption and thus no evidence of illegal intent.” 54 Accordingly, Lara’s claim can survive

TxDOT’s motion to dismiss only if he has established a prima facie case of retaliation.

“To establish a prima facie case of retaliation, an employee must show: (1) [he] engaged

in an activity protected by the TCHRA, (2) [he] experienced a material adverse employment action,

and (3) a causal link exists between the protected activity and the adverse action.” 55

“In . . . retaliation cases under the TCHRA,” as in discrimination cases, “Texas jurisprudence

parallels federal cases construing and applying equivalent federal statutes, like Title VII.” 56 Lara

argues that he opposed a discriminatory practice by requesting LWOP or light duty as an

accommodation.

The federal analogue relevant here is § 12203 of the ADA. Subsection (a) of the federal

statute is practically identical to Section 21.055, but subsection (b) is much broader:

(a) Retaliation

No person shall discriminate against any individual because such individual has
opposed any act or practice made unlawful by this chapter or because such
individual made a charge, testified, assisted, or participated in any manner in an
investigation, proceeding, or hearing under this chapter.

52
TEX. LAB. CODE § 21.055.
53
Alamo Heights Indep. Sch. Dist. v. Clark, 544 S.W.3d 755, 782 (Tex. 2018).
54
Id. at 785.
55
Id. at 782.
56
Id. at 781.

18
 (b) Interference, coercion, or intimidation

It shall be unlawful to coerce, intimidate, threaten, or interfere with any individual
in the exercise or enjoyment of, or on account of his or her having exercised or
enjoyed, or on account of his or her having aided or encouraged any other individual
in the exercise or enjoyment of, any right granted or protected by this chapter. 57

The court of appeals concluded that Lara’s retaliation claim should be dismissed for two

reasons. First, focusing on statutory differences between Section 21.055 and ADA § 12203, the

court reasoned that although an accommodation request may be sufficient to invoke the protection

of the ADA’s retaliation provision—accommodation is a “right granted or protected by this

chapter” under § 12203(b)—it is not opposition to a discriminatory practice under Texas’ narrower

statute. 58 Second, the court concluded that Lara had not produced evidence of a causal link between

his request for accommodation and subsequent termination. 59 We agree with the court of appeals

that Lara cannot make a prima facie case of retaliation. We need only address the first element.

The court of appeals suggested that an accommodation request does not qualify as

opposition to a discriminatory practice under Section 21.055(1) as a matter of law. 60 We agree

with Lara that this statement is too broad. We look to federal law for guidance in adjudicating

retaliation claims under the TCHRA, 61 and federal courts agree that “the act of requesting in good

57
42 U.S.C. § 12203(a)–(b) (emphases added). The federal statute also contains a subsection (c), which
addresses remedies and procedures.
58
577 S.W.3d 641, 651 (Tex. App.—Austin 2019) (“Unlike the analogous provision of the ADA, [Section
21.055] includes no mention of the exercise of rights otherwise granted by statute—like the right to request
accommodation—as protected activity that might give rise to a retaliation claim.”).
59
Id. at 652.
60
See id. at 651 (noting that the Fourth Court of Appeals “has twice held that a request for accommodation
is a protected activity under the TCHRA” and stating that the Third Court “disagrees with [its] sister court’s
interpretation of Section 21.055”).
61
Alamo Heights, 544 S.W.3d at 781.

19
faith a reasonable accommodation is a protected activity under 42 U.S.C. § 12203”. 62 Many of

these decisions do not address whether an accommodation request would qualify as opposition to

an unlawful act under § 12203(a) without subsection (b)’s broader language prohibiting

interference with “any right granted or protected by” the ADA. But as TxDOT acknowledges,

some federal courts of appeals have expressly recognized (albeit begrudgingly) a consensus among

federal authorities that an accommodation request triggers the protections of § 12203(a) in addition

to subsection (b). 63 Accordingly, we assume that an accommodation request could, in some

circumstances, count as opposition to a discriminatory practice.

But our recent precedent is clear that to invoke the protections of Section 21.055, the

conduct relied on by the employee “must, at a minimum, alert the employer to the employee’s

reasonable belief that unlawful discrimination is at issue.” 64 As explained below, this standard

originates from federal caselaw. We have concluded that it was not met in cases much closer than

this one.

62
Solomon v. Vilsack, 763 F.3d 1, 15 (D.C. Cir. 2014); see id. at 15 n.6 (collecting cases from other circuits).

See Kirkeberg v. Canadian Pac. Ry., 619 F.3d 898 (8th Cir. 2010). There, the plaintiff alleged that his
63

employer had retaliated against him for requesting a reasonable accommodation for his disability. The court
commented:

One might wonder how the theory behind Kirkeberg’s retaliation claim can be squared with the text
of the statute. An employee who asserts a right under 42 U.S.C. § 12112(b)(5)(A) to obtain
reasonable accommodation for an alleged disability has not “opposed any act or practice made
unlawful” by the ADA. Nor has he “testified, assisted, or participated in any manner in an
investigation, proceeding, or hearing under the ADA.” On that basis, it might be thought that
Kirkeberg’s claim never gets out of the starting gate.

Id. at 907. The court went on to hold that it was “bound by [circuit precedent] to conclude that making such a request
is protected activity for purposes of 42 U.S.C. § 12203(a)”, even though “it is questionable” whether this rule “fits
within the literal language of the statute”. Id. at 908 (quoting Soileau v. Guilford of Maine, Inc., 105 F.3d 12, 16 (1st
Cir. 1997)).
64
Alamo Heights, 544 S.W.3d at 786 (citing Exxon Mobil Corp. v. Rincones, 520 S.W.3d 572, 586 (Tex.
2017)).

20
 The 2018 case Alamo Heights Independent School District v. Clark involved claims of sex

discrimination in the form of same-sex harassment and retaliation by a middle-school gym teacher

who was terminated for poor performance. 65 Plaintiff Clark argued that three internal complaints

made prior to her termination were sufficient to invoke Section 21.055. 66 Unlike making an

accommodation request, “mak[ing] . . . a charge” and “fil[ing] a complaint” are expressly listed in

Section 21.055 as actions protected from retaliation. 67 But we nonetheless held that the specific

complaints on which Clark relied were not sufficient to establish the first element of retaliation by

prima facie evidence. 68

Clark’s most detailed complaint was a thirteen-page letter to the school principal listing

more than four dozen incidents involving two other female coaches. Although “a handful

of . . . allegations [in the letter] contain[ed] a sexual component”, “an overwhelming number did

not.” 69 Instead, the majority of the “broad-ranging complaints” outlined in the letter “included

mistreatment directed not only toward [Clark] but to all the other coaches, both male and female,

as well as parents and students.” 70 Furthermore, Clark “never even hinted [in the letter] that she

believed she was targeted because of her gender or any other protected trait”, instead attributing

the harassers’ motives to “thinking [that Clark] is a ‘snotty’ Alamo Heights mom and disliking her

65
Id. at 764–769.
66
Id. at 786.
67
TEX. LAB. CODE § 21.055(2)–(3).
68
Alamo Heights, 544 S.W.3d at 786.
69
Id.
70
Id.

21
teaching and parenting style”. 71 We explained that although “‘[m]agic words’ are not required to

invoke the TCHRA’s anti-retaliation protection”, “complaining only of ‘harassment,’ ‘hostile

environment,’ ‘discrimination,’ or ‘bullying’ is not enough.” 72 The employee must alert the

employer to an allegation of discrimination, and no reasonable jury could conclude that Clark’s

letter alerted the principal to Clark’s belief that the conduct she complained about constituted sex-

based discrimination. 73

Clark cited Exxon Mobil Corp. v. Rincones, which we had decided just a year earlier. 74 In

that case, plaintiff Rincones alleged racial-discrimination and retaliation claims against his

employer after being fired for failing a drug test. Rincones alleged that he had invoked the

protections of Section 21.055 by asking a human-resources representative, “how come Tony Davis

[a white employee] was still working and I couldn’t”? 75 We cited a Fifth Circuit case, Brown v.

United Parcel Service, for the rule that “protected opposition must at least alert an employer to the

employee’s reasonable belief that unlawful discrimination is at issue”, 76 and we held that

“Rincones’s statement about Davis [was] not sufficient to have alerted [his employer] to alleged

71
Id.
72
Id. at 786–787.
73
Id. at 787.
74
520 S.W.3d 572 (Tex. 2017), cited in Alamo Heights, 544 S.W.3d at 786 n.122.
75
Id. at 585.
76
Id. at 586 (quoting Brown v. United Parcel Serv., 406 F. App’x 837, 840 (5th Cir. 2010) (per curiam)).

22
discrimination.” 77 Brown, in turn, cited other federal court of appeals’ decisions for the rule it

announced. 78

Thus, to invoke the antiretaliation protection of Section 21.055, at least one of Lara’s

accommodation requests must have alerted TxDOT to Lara’s belief that disability discrimination

was at issue. 79 Lara points to his testimony that he was “constantly calling” his TxDOT superiors,

to his timely filed FMLA and sick-leave paperwork, and to his August 18 telephone conversation

with Trowbridge and Talafuse about LWOP. But there is no evidence that Lara alerted TxDOT to

the possibility of discrimination in any of these communications. Indeed, the only discriminatory

conduct by TxDOT that Lara alleges even now is his eventual termination.

Because there is no evidence that Lara opposed any discriminatory practice by TxDOT,

Lara cannot make a prima facie case of retaliation under Section 21.055. And without the

presumption of retaliation that establishing a prima facie case provides, 80 “there is . . . no evidence

of illegal intent” on the part of TxDOT. 81 We affirm the part of the court of appeals’ judgment

dismissing this claim.

77
Id.
78
See Brown, 406 F. App’x at 840 (citing Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337, 348–349
(5th Cir. 2007); Broderick v. Donaldson, 437 F.3d 1226, 1232 (D.C. Cir. 2006); Sitar v. Ind. Dep’t of Transp., 344
F.3d 720, 727 (7th Cir. 2003); Hinds v. Sprint/United Mgmt. Co., 523 F.3d 1187, 1203 (10th Cir. 2008)).
79
Alamo Heights, 544 S.W.3d at 786.
80
See id. at 782 (explaining that if an “employee can establish a prima facie case of [retaliation], a rebuttable
presumption of [retaliation] arises”).
81
Id. at 785.

23
 V

Finally, the court of appeals concluded that Lara had not pleaded a traditional adverse-

action claim under Section 21.051 of the TCHRA, even though both parties assumed that he had

and had briefed the claim. 82 Under Section 21.051, it is “an unlawful employment practice” for an

employer to “discharge[] an individual” because of disability or another characteristic protected

by the Act. 83

“Texas follows a fair-notice standard for pleading”, which “measures whether the

pleadings have provided the opposing party sufficient information to enable that party to prepare

a defense or a response.” 84 The “Causes of Action” section of Lara’s original petition cites

Section 21.051 and alleges that TxDOT’s discriminatory acts against Lara include “termination of

[his] employment.” This allegation must have been sufficient to enable TxDOT to prepare a

response because TxDOT expressly challenged the claim in its motion to dismiss. And after the

trial court denied TxDOT’s entire motion to dismiss, TxDOT challenged the court’s dismissal of

Lara’s Section 21.051 claim in its briefing to the court of appeals. Thus, the court of appeals’

conclusion that Lara failed to plead a claim under Section 21.051 is simply wrong. The court

should have addressed this claim.

The elements of a Section 21.051 disability-discrimination claim are that (1) the plaintiff

has a disability, (2) the plaintiff was qualified for the job, and (3) the plaintiff suffered an adverse

82
577 S.W.3d 641, 647 n.1 (Tex. App.—Austin 2019).
83
TEX. LAB. CODE § 21.051(1).
84
First United Pentecostal Church of Beaumont v. Parker, 514 S.W.3d 214, 224–225 (Tex. 2017) (citing
Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 896 (Tex. 2000); Kopplow Dev., Inc. v. City of San Antonio,
399 S.W.3d 532, 536 (Tex. 2013); Roark v. Allen, 633 S.W.2d 804, 810 (Tex. 1982)).

24
employment decision because of his disability. 85 TxDOT does not challenge Lara’s disability in

this appeal, and we have already held in our analysis of Lara’s failure-to-accommodate claim that

the evidence is sufficient to raise a fact issue that at the time of Lara’s termination, he had requested

just five more weeks of leave and thus remained a qualified individual. Lara’s ability to proceed

on his Section 21.051 claim therefore turns on causation. But because the parties’ briefing has not

focused on this claim, we remand the case to the court of appeals to adjudicate in the first instance

TxDOT’s appeal of the trial court’s denial of its motion to dismiss Lara’s Section 21.051 claim.

* * * * *

We agree with the court of appeals that Lara has raised a genuine issue of material fact

with respect to his failure-to-accommodate claim under TCHRA Section 21.128 and affirm its

judgment with respect to that claim. We also agree with the court of appeals that Lara cannot make

a prima facie case of retaliation under Section 21.055 and affirm its judgment dismissing that claim

with prejudice. Finally, we conclude that Lara’s pleadings gave fair notice of a claim for

discrimination under Section 21.051 and that the court of appeals should have addressed TxDOT’s

challenge to the trial court’s failure to dismiss that claim. We remand this case to the court of

appeals for adjudication of TxDOT’s challenge to Lara’s Section 21.051 claim in the first instance.

Nathan L. Hecht
Chief Justice

OPINION DELIVERED: June 25, 2021

85
Green v. Dallas Cnty. Schs., 537 S.W.3d 501, 503 (Tex. 2017) (per curiam).

25