Texas Department of Family and Protective Services v. Norma Parra

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS

TEXAS DEPARTMENT OF FAMILY §
AND PROTECTIVE SERVICES, No. 08-14-00148-CV
§
Appellant, Appeal from the
§
v. 120th District Court
§
NORMA PARRA, of El Paso County, Texas
§
Appellee. (TC#2009-1677)
§

OPINION

Texas Department of Family and Protective Services (TDFPS) appeals from a judgment

following a jury verdict that TDFPS terminated Norma Parra in retaliation for filing a workers’

compensation claim. TDFPS raises three issues on appeal: (1) whether the State waived its

sovereign immunity from Parra’s claim; (2) whether the trial court erroneously charged the jury on

damages; and (3) whether Parra presented sufficient evidence to support her wrongful termination

claim. We affirm.

FACTUAL BACKGROUND

TDFPS hired Parra in 2006 as a case worker assistant. As part of her job, Parra was

required to perform home visits to families and to transport children and their families to various

appointments. On January 28, 2008, Parra was driving her car to a home visit when she was hit
by another vehicle while stopped at a traffic light. Parra injured her head, neck, and back in the

accident. As required by TDFPS policy, Parra immediately contacted her supervisor, Theresa

Santaguida, and advised Santaguida that she had been in an accident and would be unable to

complete the home visit. Parra went to the emergency room where she was given prescription

medication for her injuries and advised to follow up with her personal physician. The orthopedic

doctor who initially treated Parra ordered her to physical therapy and directed her not return to

work until she completed physical therapy.

Santaguida testified that she twice attempted to forward a report regarding Parra’s accident

to TDFPS Human Resources (HR) division, as required by TDFPS policy first on January 28,

2008 and then on February 8, 2008. However, the report was never received by the HR division.

Santaguida testified she did not forward information concerning Parra’s accident to TDFPS’s

insurance carrier, the State Office of Risk Management (SORM), which would have initiated a

workers’ compensation claim on Parra’s behalf, because she was not aware it was her

responsibility to do so.

Consequently, Parra was not informed that state policy allowed her to make a choice,

within five days of her accident, either to begin utilizing her accrued sick leave and accrued annual

leave while she was off work, or alternatively to be placed on workers’ compensation status, which

would have preserved her leave time.1 Instead, Parra began utilizing her accrued leave, which

expired on March 13, 2008. TDFPS also placed Parra on leave pursuant to the Family Medical

1
A state employee may elect to use their accrued sick leave, and when that is exhausted may elect to use all or part of
their accrued annual leave, before they start receiving workers’ compensation income benefits. TEX. LABOR CODE
ANN. § 501.044 (West 2015). If an employee elects to use their accrued leave, they are not entitled to income benefits
until their sick leave and the elected annual leave have been exhausted. Id.
2
Leave Act. Under TDFPS policy, Parra was required to exhaust all her accrued leave before

going on the unpaid leave under the FMLA, since at the time she not was receiving workers’

compensation benefits.

Shortly before her accrued leave expired, Parra realized that Santaguida had failed to report

her accident and that a workers’ compensation claim had not been opened on her behalf. On

March 7, 2008, Parra reported the accident to the Texas Department of Insurance,2 which in turn

forwarded the information to SORM. Thereafter, a SORM claims examiner, Beckie Zientara,

forwarded the information to Howard Lang, an operations manager for G and H Partners, the

third-party administrator who handles workers’ compensation claims for TDFPS.

When Lang received the information regarding Parra’s claim, he immediately contacted

Santaguida and asked her to forward information regarding Parra’s accident so that he could open

up Parra’s workers’ compensation claim. Lang expressed concern that Parra had not been given

the option to make an election of benefits, as required by state policy, which would have allowed

Parra to be placed on workers’ compensation status immediately after her accident rather than

utilizing her own accrued leave while she was receiving treatment for her injuries. Lang also

realized that state policy required an employee to be placed on workers’ compensation status

within five days of her accident if a timely election was not made. He therefore informed

Santaguida that due to Parra’s failure to make a timely election, it was possible that Santaguida

would be required to place Parra on workers’ compensation status retroactively and reinstate all of

her accrued leave.

2
The Texas Department of Insurance is the state agency that houses the Texas Division of Workers’ Compensation.
3
 At the same time, Lang also contacted Zientara, and suggested the possibility that Parra be

given the opportunity to make a late election of benefits, in light of the delays that occurred in

reporting her accident. TDFPS policy did not allow a late election of benefits. Thereafter, on

March 19, 2008, an unidentified supervisor at SORM made the determination to deviate from

policy and to allow Parra to make an election after the five-day time period had expired.

Parra was then given a copy of the form, known as a SORM-80 Form, which should have

been given to Parra immediately after the accident, requiring her to elect between utilizing her own

accrued leave, or alternatively, being placed on workers’ compensation status. Lang testified that

if Parra had made an election to be placed on workers’ compensation status retroactively to the

date of her accident, the agency would have been required to reinstate her accrued leave time.

Parra testified that no one explained to her why she was being given the form almost two months

after her accident, when her accrued leave had already been exhausted. She further testified she

was never told of the possibility of having her leave reinstated. Instead, when she received the

form, Parra believed she was required to select the option for utilizing her own accrued leave,

because she had already utilized that leave. Neither Lang nor Santaguida, who ultimately

provided the election form to Parra, could recall explaining to Parra why she was being given the

election form after she had already utilized her accrued leave, or informing her of the possibility

that her leave could have been reinstated at that point. The instructions for the election form

4
required it to be completed by both the employee and a “claims coordinator,” and required that

certain explanations be provided to the employee.3

After Parra elected to utilize her leave time, as she believed she was required to do, Lang,

who apparently did not realize that Parra’s leave had already been exhausted, sent a follow-up

communication to Santaguida, advising her that Parra should be placed on leave without pay once

Parra utilized all of her accrued leave in accordance with her option selection. Lang also advised

Santaguida to notify him if Parra either returned to work or if her termination occurred. Because

Parra elected to utilize her already-exhausted leave, Parra’s leave was never reinstated. Parra was

left on FMLA leave until April 28, 2008, when her mandatory 12-week FMLA leave expired.

She was then placed on worker’s compensation leave without pay, until her termination in July

2008.4

3
On March 19, 2008, an employee in Lang’s office attempted to send an e-mail to Parra’s personal e-mail address,
with a copy of the election form attached. The e-mail advised that Parra was required to make an election so that the
office would know when to put Parra on workers’ compensation benefits. The e-mail provided no explanation why
Parra was being asked to make this election at such a late date, after she had already exhausted all of her leave benefits.
It also did not explain that Parra would be entitled to have her leave reinstated if she chose the second option or the
significance of making the election. Lang testified that he did not believe that anyone from his office would have
explained to Parra the significance of making this choice, as he did not believe it was the responsibility of his office to
do so. In his opinion, that duty would have fallen on Parra’s supervisor, because the injured employee’s supervisor is
considered the “go between” for the employee and his office, and his office had very little, if any, direct contact with
the injured employee. Upon receiving a copy of the e-mail, Santaguida sent a message to Lang’s office that same
day, advising that Parra did not have access to e-mail, and that she would make sure that Parra received the form.
Santaguida thereafter provided the form to Parra. Santaguida testified that she did not believe it was her role to
ensure that Parra made the correct choice on the form.
4
Lang had instructed Santaguida on March 19, 2008, to place Parra on leave without pay and on workers’
compensation status when her accrued leave was exhausted, thereby entitling her to receive only the equivalent of 70
percent of her pay through the workers’ compensation benefits, rather than her full paycheck. Parra, however, was
mistakenly given her full paychecks for March and April. Although the record contains a notice to Santaguida
regarding the overpayment, it is unclear how that issue was resolved.

5
 Before Parra’s termination in July, Santaguida made two unsuccessful requests to the

Health and Human Services’ Time, Labor, and Leave Division (“TLL”), first on March 18, 2008,

and again on May 6, 2008, for Parra to be given an unspecified number of hours of extended sick

leave (ESL) or sick leave pool (SLP) hours.5 If granted, this would have entitled Parra to receive

her full paycheck, rather than only 70 percent of her pay through workers’ compensation benefits,

which she was entitled to receive while on workers’ compensation leave status. However, those

requests were both denied because Santaguida failed to provide the TLL office with adequate

medical documentation.

In the meantime, while her second request for extended leave was still pending, Parra

retained an attorney to assist her with her workers’ compensation claim. As early as May 1, 2008,

her attorney began faxing information to Santaguida regarding Parra’s medical status. All the

reports indicated that Parra’s treating physician was continuing to keep her off work pending

additional work-conditioning therapy during June and July.

A month after learning that Parra had retained an attorney, and while her second request for

extended leave was still pending with the TLL office, Santaguida began contacting other agency

employees requesting advice on whether she could terminate Parra. Santaguida sent a memo

dated June 5, 2008 to an HHSC employee, Amy Boyce, advising Boyce that Parra had been on

leave without pay since April 28, 2008 “when her FMLA leave ran out” and that she was in need of

a “full-time tech” for her unit, and asking if it would be permissible to replace Parra. In her

memo, Santaguida did not mention that Parra had been injured in a work-related accident, that

5
The Health and Human Services Commission oversees the Texas Health and Human Services system, which is
composed of five state agencies, including TDFPS.
6
Parra was receiving workers’ compensation benefits, or that her second request for ESL/SLP leave

was still pending. Boyce advised Santaguida not to terminate Parra.

During this same time period, at the request of the Division of Workers’ Compensation,

Parra was evaluated by a designated doctor, Dr. Ajay Mohabeer, who released Parra to return to

work effective June 13, 2008, with a 25-pound lifting restriction.6 Dr. Mohabeer filled out a

Texas Workers’ Compensation Work Status Report releasing Parra to work with that single

restriction. The form indicated that it was sent on June 12, 2008. Parra recalled receiving the

report from Dr. Mohabeer in the mail, and testified she would have provided the form to

Santaguida shortly after she received it. Parra also testified she mentioned the report during a

telephone conversation with Georgina Martinez, Santaguida’s supervisor.

Santaguida testified that she did not recall receiving Dr. Mohabeer’s report, and did not

recall Parra ever telling her that Dr. Mohabeer had released her to “light duty.” Santaguida

acknowledged that if she had known that Parra was released to light duty, she would have “looked

into” accommodating her return to work on light duty.

Santaguida prepared a dismissal memo, dated June 18, 2008, addressed to the agency’s

Regional Director, Diana Barrajas, who was responsible for any ultimate termination decision.

The memo requested Parra’s dismissal under Chapter 5 of TDFPS’s policy manual, entitled

“Inability to Work after FMLA,” which states: “If an employee is unable to return to work due to

the employee’s own serious health condition after exhausting the FMLA leave entitlement[:]

6
Parra’s job description included a lifting requirement as an essential job requirement, but did not specify a specific
number of pounds Parra was required to lift. At trial, several witnesses, including Parra, agreed that she was required
to carry younger children in their car seats. Parra believed that she had never been required to lift over 50 pounds.

7
  the employee may exhaust any remaining paid leave accrued prior to taking FMLA
leave;

 the agency head may grant leave without pay for up to a total of 12 months,
including the 12 weeks of FMLA leave; or

 the employee may be dismissed.

The dismissal memo stated that Parra had been “placed on FMLA” beginning on January 28, 2008,

due to a “documented illness” but did not mention that Parra had been involved in a work-related

injury. The memo stated that Parra had exhausted her FMLA leave and needed to return to work

on April 29, 2008, but did not mention that Parra was on workers’ compensation leave at that time.

The memo indicated that Parra’s request for ESL had been denied in April, but did not mention

that Parra had a second pending request for ESL/SLP that had not yet been resolved. The only

reference in the memo that would have alerted Barrajas that Parra may have filed a workers’

compensation claim was Santaguida’s statement that she had contacted the workers’ compensation

office, and had been informed “that Ms. Parra was seen by her doctor on June 10, 2008 and is not

able to return to work at this time and will be seen again by her doctor on June 24, 2008.” The

memo indicated that Parra’s inability to return to work was causing a hardship for Santaguida’s

unit, and that she had a business need to fill Parra’s position.

Santaguida forwarded a copy of the dismissal memo to Matt Guedea of the Office of

Attorney General, whom Santaguida described as being the agency’s attorney, asking him to

review the memo before she provided it to Barrajas. In her memo to Guedea, Santaguida stated

that Parra was “currently on Workman’s Comp.” and had been placed on FMLA, which ran out on

April 28, 2008, and that Parra had not returned to work as required. The memo provided no

additional details regarding Parra’s situation. Santaguida testified that although she spoke with
8
Guedea about Parra’s situation, she could not recall any details of their conversations. No

evidence was presented whether Guedea approved the June 18 dismissal memo. Guedea was not

called as a witness at trial.

Santaguida provided a copy of the memo to her direct supervisor, Georgina Martinez, who

had the responsibility to recommend to Barrajas that Parra be terminated. Although Santaguida

provided Martinez with a copy of the June dismissal memo, Santaguida did not inform Martinez of

the previous late filing of Parra’s workers’ compensation claim and Parra’s late election of

benefits. In addition, there is no evidence indicating that Santaguida advised Martinez that her

previous attempts to obtain ESL/SLP leave for Parra were denied due to Santaguida’s failure to

provide adequate documentation to the TLL office in support of the request.

After reviewing the proposed June 18 dismissal memo, Martinez spoke with Parra on June

24. She recalled that Parra informed her that her treating physician had not yet released her to

work, and that she had a follow-up appointment scheduled on July 8 with her physician. Martinez

agreed to talk with Parra after that appointment. Martinez testified that Parra did not inform her

that Dr. Mohabeer had released her to light duty. Martinez testified that if she had known that

Parra had been released to light duty, she would have explored the possibility of allowing Parra to

return to work on light duty status. Martinez recalled that at some point, Parra told her that she

was feeling better, but did not recall Parra telling her that her treating physician, Dr. Palafox,

intended to release her after a two-week conditioning program.

Parra, on the other hand, testified that she had no doubt that she informed Martinez about

the light duty release during their conversations, and further believed she had made it clear to

Martinez that she wished to return to work on light duty. Parra also recalled informing Martinez
9
that her treating physician, Dr. Palafox, had agreed to release her to work after she underwent a

two-week work conditioning program, but that they were waiting for the insurance to approve that

program. According to Parra, Martinez would not agree to allow her to return to work on light

duty status, and instead insisted that she be released to full duty. Parra also recalled that during

their July 8, 2008 conversation, Martinez advised her to come back to the office on July 15, 2008,

and made it clear that Parra would be terminated if she were not released to full duty by that time.

Although Martinez did not recall advising Parra that she intended to terminate her during

their July 8 conversation, she acknowledged that she went forward with the termination

recommendation after that conversation because Parra had not been medically released to return to

work and there was a business need to fill her position. Martinez acknowledged that prior to

recommending Parra’s dismissal, she had not read any of the work status reports provided by

Parra’s attorney, and had not received or reviewed any specific complaints from any employees in

Santaguida’s unit complaining about Parra’s absence.

With Martinez’s apparent approval, Santaguida thereafter prepared a second dismissal

memo dated July 10, 2008, recommending Parra’s termination under the TDFPS policy allowing

for termination when an employee has exhausted his or her FMLA leave and is unable to return to

work. 7 The second dismissal memo was virtually identical to the first dismissal memo, but

provided updated information about Martinez’s conversation with Parra on July 8, in which

Martinez stated that Parra had informed her that she was “still not released from the doctor to

return to work and a date was not known when she will be released to full duty.”

7
Although Santaguida prepared the dismissal memo to be submitted to Barrajas, Martinez testified that the ultimate
decision to recommend dismissal to Barrajas was her responsibility.
10
 Martinez testified that before submitting the memo to the agency director, Barrajas, she

spoke with attorney Guedea. Martinez conceded that although she provided a copy of the

proposed dismissal memo to Guedea, she failed to advise him of the various problems that had

occurred in Parra’s case. According to Martinez, she never received a written opinion from

Guedea regarding the legality of terminating Parra, and she was unclear about what advice, if any,

Guedea may have given when she spoke with him by telephone.

Barrajas recalled that when she received the July 10 dismissal memo, she was not given

any supporting documentation from either Martinez or Santaguida regarding Parra’s medical

status or the need to replace her. Barrajas admittedly did not perform any independent

investigation regarding the statements made in the memo. Barrajas instead relied solely on the

memo and her verbal conversations with Martinez in approving Parra’s termination. Barrajas

also acknowledged that prior to approving the termination, no one informed her about the delays

that had occurred in filing Parra’s workers’ compensation claim or about her late election of

benefits. Barrajas agreed that it would have been important for her to have that information

before she approved Parra’s termination.

Barrajas acknowledged that she had the discretion pursuant to TDFPS policy to grant Parra

up to 12 months of additional FMLA leave rather than terminating Parra, but she declined to do so

because she believed the dismissal memo set forth the three valid reasons for instead terminating

Parra: Parra had exhausted her accrued leave, Parra was not medically released to return to work,

and Parra’s absence had created a hardship for Santaguida’s unit.

After receiving Barrajas’s approval to terminate Parra, Martinez and Santaguida met with

Parra on July 15, 2008. During the meeting, Parra testified that she again informed both
11
supervisors that Dr. Mohabeer had released her to light duty, but according to Parra, Martinez

informed her that she was required to return at “full capacity.” Both Martinez and Santaguida

denied that Parra provided this information to them, and claimed that Parra instead continued to

advise them that she had not yet been released to work. Martinez did recall Parra stating that she

wanted to come back to work during that meeting. Santaguida advised Parra that she was only

being terminated due to a business need to replace her, and Martinez stated that she was welcome

to reapply for a position at the agency when she was released to work. Both Santaguida and

Martinez agreed at trial that Parra had been a good employee, had never presented any problems

for the agency, and that she was not terminated for any work-related issues.8

Parra testified that during the July 15 meeting, she was told that she was being terminated

because she “was on Workers’ Comp,” and not because she had exhausted her leave. Parra stated

that she was given a choice of either resigning or being terminated. Parra, however, refused to

resign because she did not believe that she had done anything wrong. Therefore, she was

terminated from her position. Parra recalled that she began crying during the meeting, and she

was thereafter required to clean out her desk in front of her coworkers, which caused her to feel

“humiliated.” Parra also testified that she became “worried” and had “anxiety,” because she had

never been terminated before and was uncertain about what would happen to her and her family,

including her four children. After her termination, Parra stated that she was “depressed,” but she

8
Although Martinez recalled giving Parra a copy of the dismissal memo during their meeting, Parra claimed that she
was not given a copy, and the memo itself was not signed by Parra, even though it contained a signature block for the
“Employee’s Signature.”
12
nevertheless finished her work conditioning program, and her treating physician, Dr. Palafox

released her to work with a 50-pound lifting restriction on August 26, 2008.

On September 22, 2008, Parra’s attorney sent a letter to TDFPS, advising the agency of

Parra’s release to full duty, and requested that Parra be reinstated to her position. Although

Parra’s position had not yet been filled at that time, and in fact was not filled until October or

November, TDFPS did not respond to her attorney’s communication, and Parra never formally

applied for the position.

After Parra applied for several other state agency jobs, she was eventually rehired by

TDFPS in December 2010 as a case worker assistant, at a lower, entry-level pay rate. Parra

explained that due to the gap in her employment with the state, she lost various benefits, including

merit pay increases she had previously received, and benefit replacement pay, to which long-time

state employees with no break in service are entitled. Parra testified that shortly after she was

terminated, she cashed out her retirement account, and during her two years of unemployment, she

not only lost her salary, but also her employer-contributed health insurance benefits as well.

PROCEDURAL BACKGROUND

Parra filed suit for wrongful discharge in 2009, claiming that TDFPS had wrongfully

terminated her in retaliation for filing a workers’ compensation claim, in violation of Chapter 451

of the Texas Labor Code. Prior to trial, TDFPS filed a plea to the jurisdiction, claiming TDFPS,

as a state agency was immune from suit. The trial court concluded the Legislature had waived the

State’s sovereign immunity. On interlocutory appeal, this Court reached the same conclusion and

upheld the trial court’s decision to deny the plea to the jurisdiction. See Texas Dept. of Family &

Protective Servs. v. Parra, 347 S.W.3d 362, 364 (Tex.App. – El Paso 2011, pet. denied).
13
 At the close of evidence in the subsequent trial, TDFPS requested a directed verdict, again

raising the issue of sovereign immunity and contending that Parra had not presented sufficient

evidence to support her claim. The trial court denied the request.

The jury thereafter found that TDFPS had engaged in conduct prohibited by Chapter 451

by discharging Parra because she filed and instituted a workers’ compensation proceeding, and

because she hired a lawyer to represent her in a workers’ compensation claim. The jury awarded

Parra $106,000 for past lost earnings and benefits, $94,000 for future lost earnings and benefits,

and $150,000 in past compensatory damages.

TDFPS thereafter filed both a motion for judgment notwithstanding the verdict, and a

motion for new trial, again raising the issue of sovereign immunity, challenging the sufficiency of

evidence, and claiming that the trial court had given the jury erroneous instructions on damages.

Both motions were overruled by operation of law. TDFPS also objected to the proposed

judgment that Parra’s attorney prepared on these same grounds, which the trial court rejected.

However, the trial court did reduce the total damage award to $250,000 to correspond to the

damages caps set by the Texas Tort Claims Act. This appeal followed.

DISCUSSION

Sovereign Immunity

In its first two issues on appeal, TDFPS contends Parra’s claim against TDFPS was barred

by sovereign immunity. We disagree.

The Interlocutory Appeal

To better understand TDFPS’s argument on sovereign immunity, a brief procedural history

of this case is in order. When Parra first filed her lawsuit for wrongful retaliation, TDFPS filed a
14
plea to the jurisdiction claiming sovereign immunity. TDFPS asserted that the anti-retaliation

statute found in Chapter 451 of the Texas Labor Code did not contain a clear waiver of the state’s

immunity from suit. The trial court denied TDFPS’s plea to the jurisdiction. TDFPS then filed

an interlocutory appeal, and we affirmed the trial court’s decision. See Parra, 347 S.W.3d at 364.

In our opinion, we noted the Texas Supreme Court had already resolved this issue in

Kerrville State Hosp. v. Fernandez, 28 S.W.3d 1, 9 (Tex. 2000). In Fernandez, the Supreme

Court recognized that the anti-retaliation statute found in Chapter 451 was enacted to protect

workers from retaliation by their employers for filing a workers’ compensation case. In turn, the

State Applications Act (SAA), found in Chapter 501 of the Texas Labor Code, determines the

situations in which the workers’ compensation laws apply to state agencies and expressly provides

that state agencies are required to provide workers’ compensation benefits to their employees.

TEX. LABOR CODE ANN. § 501.002(a) (West 2015). The SAA also expressly provides that for

purposes of Chapter 451, the “individual state agency shall be considered the employer.” Id. at §

501.002(b). The Supreme Court concluded this provision would have no meaning unless the

Legislature had adopted it with the express intent of allowing employees to sue a state agency

under Chapter 451 as an employer providing workers’ compensation benefits. Fernandez, 28

S.W.3d at 8. The Court held these provisions constituted a clear and unambiguous waiver of

sovereign immunity for workers’ compensation retaliation claims brought against a state agency.

Id. at 5-6.

In its interlocutory appeal, TDFPS urged this Court to reach a different conclusion based

on the subsequent adoption of Section 311.034 of the Texas Government Code in 2001, the year

after Fernandez was decided. Section 311.034 provides that “a statute shall not be construed as a
15
waiver of sovereign immunity unless the waiver is effected by clear and unambiguous language.”

TEX. GOV’T CODE ANN. § 311.034 (West 2013). TDFPS asserted that Section 311.034 created a

new, stricter standard for determining whether sovereign immunity has been waived, and that we

should therefore reconsider the Supreme Court’s holding in Fernandez and conclude that the

provisions in the SAA were not specific enough to waive sovereign immunity. We disagreed

noting that the Legislature had done no more than merely codify the existing common law

principle that sovereign immunity is not waived absent a statute using “clear and unambiguous”

language to that effect. Parra, 347 S.W.3d at 366. We further concluded that the Legislature’s

adoption of Section 311.034 did not alter the rationale provided in Fernandez because Fernandez

had applied the same “clear and unambiguous” standard for waiver set forth in Section 311.034.

Id. We found it significant that the Legislature could have expressed its disagreement with

Fernandez by amending the Labor Code to make clear it did not intend to waive sovereign

immunity in retaliation cases, but had not done so in the decade since Fernandez was decided.9

Id. at 365. We therefore held there was “no basis upon which this Court can conclude a different

result is warranted in the case before us.” Id. at 365-66.

9
At the time Fernandez was decided, the Political Subdivisions Law (PSL) contained virtually identical language,
which the Supreme Court had previously interpreted to mean that the Legislature intended to waive sovereign
immunity in cases in which a plaintiff was suing a political subdivision, such as a city or county, for similar
anti-retaliation claims. See, e.g., City of LaPorte v. Barfield, 898 S.W.2d 288 (Tex. 1995); Kuhl v. City of Garland,
910 S.W.2d 929 (Tex. 1995). Five years after Fernandez was issued, however, the Legislature amended the PSL to
take away this waiver of immunity, by adding a provision expressly stating that, “[n]othing in this chapter waives
sovereign immunity or creates a new cause of action.” TEX. LABOR CODE ANN. § 504.053(e) (West 2015). The
Supreme Court held that this was a clear message from the Legislature that it no longer wished to waive sovereign
immunity for political subdivisions in anti-retaliation cases involving employees of such subdivisions. See, e.g.,
Travis Cent. Appraisal Dist. v. Norman, 342 S.W.3d 54, 57 (Tex. 2011). However, as this Court recognized in Parra,
the Legislature did not similarly amend the SAA, and the SAA provisions waiving immunity are still in place, thereby
strongly suggesting that the Legislature intended to keep alive the right of state employees to bring anti-retaliation
lawsuits. Parra, 347 S.W.3d at 365-66.
16
 To date, the Supreme Court has not overruled its holding in Fernandez. To the contrary,

in 2003, the Court cited Fernandez favorably in discussing the concept of sovereign immunity,

noting there are “rare occasions” when it has found a waiver of sovereign immunity absent the

Legislature’s use of “magic words,” such where a statutory provision would be rendered

“meaningless unless immunity were waived.” Wichita Falls State Hosp. v. Taylor, 106 S.W.3d

692, 697 (Tex. 2003). The Court noted that this was the case in Fernandez, in which it had held

that the provisions of the anti-retaliation statute defining a state agency as an employer would have

“no meaning absent waiver of sovereign immunity.” Id.

Therefore, as we recognized in Texas Dept. of Aging & Disability Servs. v. Beltran, 350

S.W.3d 410 (Tex.App. – El Paso 2011, pet. denied), the Supreme Court has already spoken on this

issue not once, but twice, and “[u]nder the doctrine of stare decisis, it is not our function to

abrogate or modify established precedent,” as that function lies solely with the Texas Supreme

Court. Id. at 416 (citing Lubbock County, Tex. v. Trammel’s Lubbock Bail Bonds, 80 S.W.3d 580,

585 (Tex. 2002)).10 Accordingly, to the extent that TDFPS is requesting that we reconsider

Fernandez and our decisions in Parra and Beltran, we decline to do so.

The Applicability of the Texas Tort Claims Act

While apparently willing to acknowledge the Legislature did in fact waive sovereign

immunity in anti-retaliation cases, TDFPS nevertheless asserts that this waiver was extremely

narrow in scope, and did not include the claim Parra brought against TDFPS. In particular,

10
Several of our sister courts have recognized Fernandez stands as good law despite the Legislature’s adoption of
Section 311.034. See Texas Parks & Wildlife Dept. v. Flores, No. 03-11-00605-CV, 2012 WL 3239114, at *5
(Tex.App. – Austin Aug. 10, 2012, pet. denied) (mem. op., not designated for publication) (citing to numerous cases,
in addition to Parra and Beltran, that have concluded that Fernandez stands as good law despite the adoption of
Section 311.034).
17
TDFPS cites to Section 501.002(d) of the SAA, which provides that: “Neither this chapter nor

Subtitle A authorizes a cause of action or damages against the state, a state agency, or an employee

of the state beyond the actions and damages authorized by Chapter 101, Civil Practice and

Remedies Code.” TEX. LABOR CODE ANN. § 501.002(d)(West 2015). TDFPS points out that

Chapter 101 of the Texas Civil Practices and Remedies Code, more commonly known as the Texas

Tort Claims Act, allows a plaintiff to sue a governmental entity only if the claim is based on a

government employee’s wrongful or negligent use of a motor-driven vehicle or motor-driven

equipment, or on the condition or use of real or tangible personal property. See TEX. CIV. PRAC.

& REM. CODE ANN. § 101.021 (West 2011). It further points out that under the Tort Claims Act,

the Legislature permits a plaintiff to recover only for “property damage, personal injury, and

death,” or “bodily injury” damages. See id. at §§ 101.021, 101.023 (West 2011). TDFPS asserts

that because any legislative waiver of immunity must be narrowly construed, we should conclude

that the Legislature intended to limit both “claims” and “damages” in anti-retaliation cases to the

exact claims and damages permitted by the Texas Tort Claims Act. In other words, TDFPS

believes that Parra was only entitled to bring a claim based solely on an injury arising from the

negligent operation of a motor vehicle or the negligent use of personal property, and for only any

“bodily injury” she suffered due to that negligence. Because Parra’s claims did not come within

the scope of the Texas Tort Claims Act’s wavier of immunity, in terms of either liability or

damages, TDFPS asserts that Parra’s claims were barred by sovereign immunity and fail as a

matter of law.

We agree that courts are required to narrowly construe waivers of sovereign immunity, and

that we should therefore resolve any ambiguities in favor of immunity. See, e.g., Wichita Falls
18
State Hosp., 106 S.W.3d at 697. However, in the instant case, the Texas Supreme Court has

previously considered the applicability of the Texas Tort Claims Act to anti-retaliation lawsuits

brought against governmental entities, and has already concluded that its application is not as

broad as TDFPS advocates.

In the analogous case of City of LaPorte v. Barfield, 898 S.W.2d 288, 297 (Tex. 1995), the

Supreme Court considered whether the Legislature had waived governmental immunity in the

Political Subdivisions Law (PSL), found in Chapter 504 of the Labor Code, to allow employees of

political subdivisions of the state, such as cities and counties, to bring anti-retaliation lawsuits

against the political subdivisions. In Barfield, the Court noted that the PSL contained similar

provisions to those found in the SAA, which required political subdivisions to provide workers’

compensation benefits and deemed the state to be an employer for purposes of the Workers’

Compensation Act. Id. The Court, however, noted that in 1989, the Legislature added a

provision to the PSL, similar to the provision in the SAA, stating that nothing in the PSL or in the

Workers’ Compensation Act authorized any “actions or damages against governmental entities

except to the extent allowed by the Tort Claims Act.” Id. at 298. The Court found this provision

troubling, noting that a literal reading would effectively preclude an employee from not only

bringing a Chapter 451 retaliation claim, but also a claim for workers’ compensation benefits,

“unless the claim were based on a government employee’s wrongful or negligent use of a

motor-driven vehicle or motor-driven equipment, or on the condition or use of real or tangible

personal property.” Id. The Court concluded that it was implausible the Legislature would have

required political subdivisions to provide workers’ compensation benefits to its employees, yet

would have “greatly restricted those benefits to the very limited circumstances in which the Tort
19
Claims Act waives immunity without any expression of intent to do so.” Id. Noting the

difficulties that it faced in reconciling the newly-enacted provision with a waiver of immunity, the

Supreme Court nevertheless concluded that the provision could not be ignored entirely. Id. at

299. The Court then interpreted the provision with respect to Chapter 451 to not permit the

recovery of punitive damages and to cap actual damages based on the limitations set out in the

Texas Tort Claims Act. Id. The Court noted, however, that whether the restriction in the PSL to

“actions and damages authorized by the Texas Tort Claims Act” further limits application of the

Anti–Retaliation Law “is an issue that has not been raised in the cases before us and need not be

addressed.” Id.

Shortly after Barfield was decided, a municipality did raise the question whether there

might be additional limits imposed by the Tort Claims Act in anti-retaliation lawsuits. See Kuhl v.

City of Garland, 910 S.W.2d 929 (Tex. 1995). In particular, the defendant in Kuhl raised a

similar argument to the one TDFPS is making, arguing that in order to bring a valid anti-retaliation

claim against a political subdivision, the plaintiff’s claims must exactly mirror the claims allowed

by the Texas Tort Claims Act. The Supreme Court, however, expressly rejected this argument,

holding that despite the “literal language of the [PSL] statute” applying the limits of the Tort

Claims Act to anti-retaliation cases, it did not believe the Legislature intended to incorporate the

exact requirements of the Tort Claims Act into an anti-retaliation lawsuit. Id. at 931. Instead, as

it did in Barfield, the Court concluded that such a literal reading of the PSL was implausible

because it “would not only bar all retaliatory discharge claims, but would also bar all basic

workers’ compensation claims that did not fit within the limited waiver of immunity” provided for

in the Tort Claims Act. Id.
20
 Although the Supreme Court did not directly address whether a plaintiff in an

anti-retaliation case against a governmental entity could only bring a claim for “bodily injury”

under the terms of the Tort Claims Act, the Court nevertheless impliedly rejected this argument

when it concluded that a plaintiff was entitled to receive an award of “actual damages” in

retaliation cases. Id. In fact, the opinions in both Barfield and Kuhl contain language strongly

suggesting that the only limitations on damages are the damages caps set forth in the Tort Claims

Act, as well as the provisions prohibiting an award of punitive damages. Id.

TDFPS, however, urges us not to apply the holdings in Barfield and Kuhl to Parra’s case,

noting that they were decided under the PSL, which pertains to lawsuits against political

subdivisions, rather than under the SAA, which applies to lawsuits against state agencies such as

the TDFPS. TDFPS appears to believe that we should apply a stricter standard when determining

whether the Legislature intended to waive immunity for a state agency than for a political division

because the State is entitled to “sovereign immunity,” which TDFPS describes as a “common law

rule that has evolved over centuries,” whereas political subdivisions are entitled only to

“governmental immunity,” which TDFPS appears to believe is a somewhat inferior form of

immunity. We disagree.

First, there is no substantive distinction between sovereign immunity and governmental

immunity, other than the fact that sovereign immunity protects the state and state agencies, while

governmental immunity provides “similar protection” to political subdivisions. Travis Cent.

Appraisal Dist. v. Norman, 342 S.W.3d 54, 57-58 (Tex. 2011). As noted by the Supreme Court,

the two terms are often used interchangeably, as they are “related common law concepts that differ

only in scope.” Id. at 58. Further, in determining whether the Legislature intended to waive
21
immunity under both the PSL and the SAA, the Supreme Court has utilized the same “clear and

unambiguous” standard for waiver of immunity. And, in both instances, the Court has expressly

concluded that the provision did waive immunity. Fernandez, 28 S.W.3d at 3; Barfield, 898

S.W.2d at 291.

More important, in Fernandez the Court has already discussed the applicability of the Tort

Claims Act to the provisions of the SAA, and in doing so, used the same analysis it used in Barfield

when discussing the applicability of the Tort Claims Act to the PSL, citing favorably Barfield

throughout its discussion of how to interpret the similarly-worded provisions in the SAA.

Fernandez, 28 S.W.3d at 3-10. In particular, the Court recognized in Fernandez that the SAA

contained a provision almost identical to the provision found in the PSL at the time, providing that

“neither the SAA [n]or the Workers’ Compensation Act authorizes actions or damages against

governmental entities except to the extent allowed by the Tort Claims Act.” Id. at 9. As it did in

Barfield, the Court in Fernandez noted that a “literal reading” of that provision would not only bar

a state employee from bringing an anti-retaliation lawsuit, but would also bar a state employee

from ever bringing any workers’ compensation claims against a state agency. Id. at 9-10. As in

Barfield, the Court declined to construe the provision in such a literal manner, and instead

construed the provision more narrowly to “incorporate the Tort Claims Act’s damage caps.” The

Court then concluded that, in light of this interpretation, “state agencies that violate the Anti–

22
Retaliation Law may be held liable for damages subject to the limits on damages in the Tort

Claims Act.”11 Fernandez, 28 S.W.3d at 10.

The Tort Claims Act’s Bodily Injury Requirement

Despite the Supreme Court’s holding that a plaintiff in an anti-retaliation lawsuit against a

state agency may recover “actual damages,” TDFPS asserts that those damages should be limited

only to the “bodily injury” or personal injury damages allowed under the Texas Tort Claims Act.

TDFPS points out that Parra never made a claim for bodily injury damages, and that the jury’s

award was instead based on economic damages not based on bodily injury. TDFPS argues that

the Legislature intended to waive sovereign immunity only for bodily injury, and Parra’s award of

damages may not stand. We disagree for the same reasons discussed above.

Once again, if we were to construe the SAA provision in the literal manner suggested by

TDFPS to only allow claims for “bodily injury,” it would effectively prohibit a state employee

from ever bringing an anti-retaliation claim against a state employer, because it is virtually

impossible to conceive of any case in which an employee would have a claim for “bodily injury”

as the result of a wrongful discharge. While an employee might be able to present evidence that

he had physical symptoms associated with the stress brought on by a wrongful discharge, as

TDFPS correctly points out, such physical symptoms do not amount to a valid claim of bodily

injury under the Tort Claims Act. See, e.g., City of Tyler v. Likes, 962 S.W.2d 489, 497 (Tex.

11
TDFPS also argues that a workers’ compensation retaliation claim is an intentional tort and that the Tort Claims Act
does not apply to, and thus does not waive its immunity for, claims “arising out of assault, battery, false imprisonment,
or any other intentional tort[.]” TEX. CIV. PRAC. & REM. CODE ANN. § 101.057 (West 2011). If we were to accept
TDFPS’s argument, we would be required to conclude, in direct contravention of Fernandez, that a state employee
does not have a cognizable claim for anti-retaliation against a state agency. This would be in clear contravention of
well-settled Supreme Court law. See Beltran, 350 S.W.3d at 416.
23
1997). Therefore, under TDFPS’s proposed interpretation, we would be forced to conclude that,

although a state employee has the right to sue a state agency for retaliation, it has no remedy

against that state agency. Any such conclusion would not only be unreasonable, it would be in

contravention of the Supreme Court’s holding in Fernandez.

The Supreme Court in Fernandez expressly held that an employee has the right to recover

damages in a suit for retaliation, albeit without specifying the exact type of damages recoverable.

Fernandez, 28 S.W.3d at 10. Nevertheless, having concluded that a plaintiff in an anti-retaliation

lawsuit has a statutory right to recover damages against a state agency under the Labor Code, we

believe that the Supreme Court also contemplated that this statutory right to damages must have

some meaning. See Crosstex Energy Servs., L.P. v. Pro Plus, Inc., 430 S.W.3d 384, 390 (Tex.

2014) (we must not interpret a statute “in a manner that renders any part of the statute meaningless

or superfluous”). If we were to adopt TDFPS’s argument that a plaintiff could recover only

bodily injury damages in an anti-retaliation lawsuit, we would in effect be concluding that the

statutory right to collect damages was meaningless. This we decline to do.

To the contrary, in looking at the Labor Code as a whole, we are convinced, just as the

Supreme Court was convinced, that plaintiffs bringing anti-retaliation lawsuits are entitled to a

recovery of actual damages, including economic damages. Section 451.001 expressly provides

that a “person may not discharge” an employee for filing a workers’ compensation claim in good

faith, and that that a “person” who violates Section 451.001 “is liable for reasonable damages

incurred by the employee as a result of the violation.” TEX. LABOR CODE ANN. §§ 451.001,

451.002(a) (West 2015). In Fernandez, the Supreme Court determined that a state agency

employer was included within the term “person” as used in Section 451.001, thereby allowing
24
state employees to sue their state agency employers under the anti-retaliation provisions of the

Code. Fernandez, 28 S.W.3d at 7-8. Because Section 451.002 uses the identical term “person”

in describing the remedies available, we conclude that “person” has the same meaning in both

Code sections, and that a state agency is therefore a “person” liable for “reasonable damages” in

anti-retaliation lawsuits.

It is well-settled that “reasonable damages” in anti-retaliation lawsuits include both past

and future lost earnings and benefits, as well as any mental anguish suffered by the employee as

the result of the termination. See, e.g., Hertz Equip. Rental Corp. v. Barousse, 365 S.W.3d 46, 58

(Tex.App. – Houston [1st Dist.] 2011, pet. denied) (upholding award in anti-retaliation case for

actual damages including lost earnings and benefits, as well mental anguish the plaintiff suffered

as the result of his wrongful discharge); C & D Robotics, Inc. v. Mann, 47 S.W.3d 194, 202

(Tex.App. – Texarkana 2001, no pet.) (upholding award of damages in anti-retaliation lawsuit for

lost wages and mental anguish); Metal Indus., Inc. of California v. Farley, 33 S.W.3d 83, 88

(Tex.App. – Texarkana 2000, no pet.)(upholding award of lost earnings and benefits, as well as

damages for mental anguish); Am. W. Airlines, Inc. v. Tope, 935 S.W.2d 908 (Tex.App. – El Paso

1996, writ dism’d as moot) (upholding award of damages in anti-retaliation lawsuit for lost wages

and benefits, and past mental anguish damages).

This is the same measure of damages recoverable in anti-retaliation lawsuits brought

against governmental entities under the Labor Code. See Canutillo Indep. Sch. Dist. v. Olivares,

917 S.W.2d 494, 499 (Tex.App. – El Paso 1996, no writ) (where, after noting that the Legislature

had waived sovereign immunity for the school district under the PSL, we affirmed an award of

actual damages for past and future lost wages, as well as mental anguish, subject only to the
25
damages limitations set forth in the Texas Tort Claims Act); see also Texas Animal Health

Comm’n v. Garza, 27 S.W.3d 54, 63 (Tex.App. – San Antonio 2000, pet. denied) (concluding that

employee who sued a state agency in an anti-retaliation lawsuit was entitled to actual damages,

including lost earnings and mental anguish, subject to the employee’s duty to mitigate his

damages). TDFPS has cited no cases, and we are not aware of any, in which a court has ruled that

a governmental employee is not entitled to an award of actual damages for lost earnings and

mental anguish in an anti-retaliation lawsuit. Moreover, we are unaware of any cases holding, as

TDFPS would have us do, that a governmental employee may only recover “bodily injury”

damages in an anti-retaliation lawsuit. Accordingly, we reject TDFPS’s argument that a state

employee recovery in an anti-retaliation lawsuit is limited to only bodily injury damages, and

instead conclude that the employee may bring a claim for all the actual damages allowed in

Chapter 451, subject to the damage caps set forth in the Texas Tort Claims Act. Because the trial

court in this case properly reduced the jury’s award to the $250,000 cap set forth in the Tort Claims

Act, we find no error. We overrule Issues One and Two.12

The Jury Charge on Damages

12
For the same reasons, we reject TDFPS’s assertion that the jury’s award of mental anguish damages must be
vacated because mental anguish standing alone may not be considered a “bodily injury” under the terms of the Tort
Claims Act. We also reject TDFPS’s argument that Parra’s claim for mental anguish was based solely on the mental
pain she suffered as the result of her work-related motor vehicle accident, recovery for which would be barred by the
workers’ compensation exclusive remedy provision. See TEX. LABOR CODE ANN. § 408.001(a) (West 2015). Parra
presented evidence concerning her humiliation, worry, anxiety, and depression arising from her termination. And,
the trial court instructed the jury that the only mental anguish it could award must be connected to Parra’s wrongful
discharge, and not to her work-related injury. Also, to the extent that TDFPS is asserting that a plaintiff cannot
recover mental anguish absent a physical manifestation, this requirement was expressly rejected by the Supreme Court
in Parkway Co. v. Woodruff, 901 S.W.2d 434, 443 (Tex. 1995). Finally, TDFPS does not challenge the sufficiency of
the evidence supporting the award of mental anguish under the Parkway standard, and we decline to address the
sufficiency of that evidence.

26
 In its third issue, TDFPS contends the trial court’s jury instruction on damages was

erroneous because it “contained undefined and improper elements of recovery.”

Employee Benefits

First, TDFPS challenges the charge for allowing the jury to assess damages for lost

earnings and “employee benefits.”13 TDFPS argues that because the term “employee benefits”

was left undefined, the jury could have awarded Parra benefits that she had already received or to

which she was not entitled, such as workers’ compensation benefits.

Although TDFPS made a general objection that the term “employee benefits” was vague,

uncertain, and unclear because it was undefined in the charge, TDFPS did not tender a proposed

definition of “employee benefits” to the trial court. The Texas Rules of Civil Procedure expressly

provide that the failure to submit a definition to the jury cannot be deemed a ground for reversal

unless a substantially correct definition has been requested in writing and tendered by the party

complaining of the judgment. TEX. R. CIV. P. 278. Even when the party has objected to the

absence of a definition, the party waives error in the trial court’s refusal to define a term by failing

to request and tender a proper definition in writing. State v. Harrington, 407 S.W.2d 467, 479

(Tex. 1966); Shelby Distributions, Inc. v. Reta, 441 S.W.3d 715, 720 (Tex.App. – El Paso 2014, no

pet.) (party waived error in charge by failing to request and tender a substantially correct

instruction to the trial court); Lee v. Safemate Life Ins. Co., 737 S.W.2d 84, 85 (Tex.App. – El Paso

1987, writ dism’d) (objection to lack of definition in jury charge was too general to preserve issue

for appeal; it was incumbent upon party to request definition in substantially correct form to

13
The charge allowed the jury to award Parra both past and future “[l]ost earnings and employee benefits.”

27
preserve error). Therefore, we conclude that by failing to tender a proposed definition of

“employee benefits,” TDFPS waived its right to complain of the lack of a definition on appeal. 14

Compensatory Damages

Second, TDFPS contends that the trial court failed to provide a proper instruction to the

jury defining the terms “compensatory damages” and “nonpecuniary losses” when it instructed the

jury to determine whether Parra should be given an award of “[c]ompensatory damages in the past,

which may include emotional pain and suffering, inconvenience, mental anguish, loss of

enjoyment of life, and other nonpecuniary losses.” TDFPS argues that the lack of a definition

could have resulted in a double recovery, because the jury may have believed that the term

“compensatory damages” covered the economic damages already assessed for Parra’s lost

earnings and benefits. However, TDFPS has again waived its right to raise this argument by

failing to provide a proposed definition of “compensatory damages” at trial, as required by Rule

278. We also note that the trial court cautioned the jury against making a double recovery on the

different elements of damages, when it advised the jury to: “Consider each element separately.

Do not include damages for one element in any other element.”

TDFPS also notes that the term “compensatory damages” includes the concept of both

economic and noneconomic damages, and that noneconomic damages is broadly defined by

statute to include “physical pain and suffering, mental or emotional pain or anguish, loss of

14
TDFPS also appears to contend that employee benefits are never recoverable in a workers’ compensation retaliation
case. It is well-settled, however, that an employee may recover not only lost wages but also lost retirement and other
benefits that are the result of a wrongful discharge. See, e.g., Carnation Co. v. Borner, 610 S.W.2d 450, 454 (Tex.
1980). Further, to the extent TDFPS is once again contending that “employee benefits” are not bodily injury damages
recoverable under the Tort Claims Act, we have already concluded that recovery against TDFPS is not jurisdictionally
limited to bodily injury damages.

28
consortium, disfigurement, physical impairment, loss of companionship and society,

inconvenience, loss of enjoyment of life, injury to reputation, and all other nonpecuniary losses of

any kind other than exemplary damages.” See TEX. CIV. PRAC. & REM. CODE ANN. § 41.001(8,

12) (West 2015 & Supp. 2016). TDFPS argues that Parra did not present any evidence to support

recovery for some of those losses, such as physical pain, disfigurement, physical impairment, or

loss of consortium, and notes its concern that the jury may have awarded damages for those losses

without sufficient evidence. We do not share this concern.

First, TDFPS argued at trial that jury confusion would arise because the term

“nonpecuniary losses” was left undefined. If TDFPS believed it was necessary to provide a

limited definition of “nonpecuniary losses” to avoid any potential confusion, it was incumbent

upon TDFPS to tender a limited definition. Because TDFPS failed to tender any such definition,

it has waived error. Second, the jury was instructed only that it was to consider a compensatory

damages award for “emotional pain and suffering, inconvenience, mental anguish, loss of

enjoyment of life, and other nonpecuniary losses,” with no mention of awarding Parra damages for

physical pain, disfigurement, physical impairment, or loss of consortium. Although the Civil

Practices and Remedies Code provides a broad definition of “noneconomic damages,” the jury

was never instructed on this broader definition or in any way informed it could award damages for

physical pain, disfigurement, physical impairment, or loss of consortium. We therefore believe

there was no danger of any jury confusion. Issue Three is overruled.

Sufficiency of the Evidence

In its fourth issue, TDFPS argues that the evidence is both legally and factually insufficient

to support the jury’s finding that it terminated Parra in violation of Chapter 451. We disagree.
29
 The Law Governing Anti-Retaliation Claims

Section 451.001 of the Texas Labor Code provides that a person may not discharge or in

any other manner discriminate against an employee because the employee has: (1) filed a

workers’ compensation claim in good faith; (2) hired a lawyer to represent the employee in a

claim; (3) instituted or caused to be instituted in good faith a workers’ compensation proceeding;

or (4) testified or is about to testify in a workers’ compensation proceeding. TEX. LABOR CODE

ANN. § 451.001 (West 2015). An employer who violates this statute is subject to a retaliation

claim, which is an exception to the traditional “employment at will” doctrine under Texas law.

Kingsaire, Inc. v. Melendez, 477 S.W.3d 309, 312 (Tex. 2015).

An employee must show that the employer’s prohibited action would not have occurred

when it did absent the employee’s protected conduct. Id. (citing Cont’l Coffee Prods. Co. v.

Cazarez, 937 S.W.2d 444, 450 (Tex. 1996)); Echostar Satellite L.L.C. v. Aguilar, 394 S.W.3d 276,

286 (Tex.App. – El Paso 2012, pet. denied). An employee generally may rely on circumstantial

evidence to prove causation. Kingsaire, Inc., 477 S.W.3d at 312. Such circumstantial evidence

may include knowledge of the compensation claim by the decision-maker to terminate, an

employer’s expression of a negative attitude toward the employee’s injury, an employer’s

discriminatory treatment of the employee compared with similarly situated employees, an

employer’s failure to adhere to established company policy, and evidence that the employer’s

stated reason for termination was false. Id.; Cazarez, 937 S.W.2d at 451. An additional factor is

temporal proximity of the termination to the date of the injury or claim. Echostar Satellite L.L.C.,

394 S.W.3d at 288. While no one factor is determinative and an employee is not required to

produce evidence on all the factors to meet her burden, she must produce “sufficient circumstantial
30
evidence on a majority of these factors.” Armendariz v. Redcats USA, L.P., 390 S.W.3d 463, 469

(Tex.App. – El Paso 2012, no pet.).

Standard of Review

We will sustain a legal sufficiency challenge if no more than a scintilla of evidence is

offered to prove a finding. Kingsaire, Inc., 477 S.W.3d at 313; Kia Motors Corp. v. Ruiz, 432

S.W.3d 865, 875 (Tex. 2014). In conducting a legal sufficiency review, we consider the evidence

and reasonable inferences tending to support the finding and disregard contrary evidence and

inferences. Kingsaire, Inc., 477 S.W.3d at 313; Bradford v. Vento, 48 S.W.3d 749, 754 (Tex.

2001). A jury, however, may not reasonably infer an ultimate fact from meager circumstantial

evidence which could give rise to any number of inferences, none more probable than another.

Kingsaire, Inc., 477 S.W.3d at 313; Hancock v. Variyam, 400 S.W.3d 59, 70-71 (Tex. 2013).

In a factual sufficiency review, we must consider and weigh all the evidence, and we can

set aside a verdict only if the evidence is so weak or is so against the great weight and

preponderance of the evidence that it is clearly wrong and unjust. Unit 82 Joint Venture v. Int'l

Commercial Bank of China, Los Angeles Branch, 460 S.W.3d 616, 624 (Tex.App. – El Paso 2014,

pet. denied); Echostar Satellite L.L.C., 394 S.W.3d at 285. In conducting our review, we are

mindful that the jury is the sole judge of the credibility of the witnesses and the weight to give their

testimony, and that it is within the jury’s exclusive province to resolve any conflicts in the

evidence. See Unit 82 Joint Venture, 460 S.W.3d at 624; Echostar Satellite L.L.C., 394 S.W.3d at

285.

Analysis

31
 The jury found that TDFPS terminated Parra in violation of Section 451.001 for filing her

workers’ compensation claim, for retaining an attorney to assist her with her claim, and for

initiating a workers’ compensation proceeding. It was therefore Parra’s burden to present

evidence, whether direct or circumstantial, that but for these incidents, her termination would not

have occurred when it did.

The Absence Control Policy

It is well-settled in Texas that termination pursuant to the uniform enforcement of a

reasonable absence-control policy does not constitute retaliatory discharge. See, e.g., Kingsaire,

Inc., 477 S.W.3d at 312; Cazarez, 937 S.W.2d at 451. Before we address the sufficiency of the

circumstantial evidence, we must address TDFPS’s assertion that Parra was terminated pursuant to

its absence control policy, because, if termination was required by the uniform enforcement of that

policy, circumstantial evidence that could otherwise support a causal link is immaterial.

Kingsaire, Inc., 477 S.W.3d at 312; Haggar Clothing Co. v. Hernandez, 164 S.W.3d 386, 388

(Tex. 2005).

It is undisputed that the ultimate decision maker, Barrajas, made the decision to terminate

Parra based on the July 10, 2008 dismissal memo, which recommended Parra be terminated under

the TDFPS policy allowing for termination when an employee has exhausted her FMLA leave and

is unable to return to work. This absence control policy was entitled “Inability to Work after

FMLA” and provided:

If an employee is unable to return to work due to the employee’s own serious health
condition after exhausting the FMLA leave entitlement,

• the employee may exhaust any remaining paid leave accrued prior to taking
FMLA leave;
32
 • the agency head may grant leave without pay for up to a total of 12 months,
including FMLA leave; or

• the employee may be dismissed.

By its unambiguous terms, the policy did not “require” TDFPS to terminate Parra once her FMLA

leave had been exhausted. Rather it gave the agency head the discretion to terminate, or to allow

the exhaustion of any remaining paid leave, or to grant additional leave of up to 12 months. Even

Barrajas acknowledged that she had the discretion under the TDFPS policy to grant Parra up to 12

months of leave rather than terminating her.

The Supreme Court has made clear that a termination pursuant to the uniform enforcement

of an absence control policy makes circumstantial evidence that could otherwise support a causal

link immaterial, but only if the termination “was required” by the uniform enforcement of such a

policy. Kingsaire, Inc., 477 S.W.3d at 312; Haggar Clothing Co., 164 S.W.3d at 388. For

example, in Kingsaire, the employer was not liable because it terminated the employee pursuant to

an absence control policy requiring that an employee on FMLA leave for a serious medical

condition who fails to provide a medical certification of fitness to work at the conclusion of that

leave “will be terminated.” 477 S.W.3d at 314. In Haggar, the employer was not liable because

it terminated the employee pursuant to a company policy that the maximum time an employee

could remain on leave, regardless of the reason, was one year. 164 S.W.3d at 387; see also Texas

Div.-Tranter, Inc. v. Carrozza, 876 S.W.2d 312, 313 (Tex. 1994) (employee did not have a valid

anti-retaliation case where the undisputed evidence at trial established that he was terminated

solely for violating the employer’s uniformly-enforced rule that required an employee’s

termination for missing three consecutive days of work without prior approval).
33
 In the present case, however, when TDFPS terminated Parra, it did not rely on a mandatory

absence control provision. Instead, it expressly relied on a provision in its policy manual that

unambiguously provided the agency with the discretion to exercise three different options when an

employee’s FMLA leave runs out and the employee is not able to return to work. This included

the discretion to allow the employee to exhaust other accrued leave, to grant the employee

additional leave up to 12 months, or alternatively to dismiss the employee. This provision cannot

be considered a mandatory absence control policy because its unambigously provided TDFPS

with the discretion not to terminate an employee who had exhausted her FMLA leave.

In fact, the evidence presented at trial demonstrated that TDFPS did not uniformly

terminate employees when their FMLA leave ran out. In particular, TDFPS did not immediately

terminate Parra when her FMLA leave ran out, as it was permitted to do under its absence control

policy. Instead, Parra was allowed to remain an employee for almost 2-½ months after her FMLA

leave and her other leave was exhausted on April 29, 2008. As such, even if the provision could

be considered a mandatory absence control policy, it was not uniformly or consistently enforced.

See Echostar Satellite LLC, 394 S.W.3d at 287 (evidence demonstrated that the employer did not

terminate the plaintiff in strict compliance with the absence policy’s unambiguous terms, and thus

that his termination was not required by the policy’s uniform enforcement); see also Kingsaire,

Inc., 477 S.W.3d at 316 (citing Echostar for the proposition that a plaintiff can raise a fact issue

concerning the employer’s strict compliance with an unambiguous absence control policy by

showing that the policy was not strictly enforced as to the plaintiff). As such, we conclude that

Parra was not in fact terminated pursuant to the uniform enforcement of a mandatory absence

control policy. We now turn to the evidence supporting the necessary factors.
34
 Knowledge of the Workers’ Compensation Claim

Parra introduced undisputed evidence that her supervisor, Theresa Santaguida, who set in

motion and recommended Parra’s termination, had knowledge of Parra’s workers’ compensation

claim early on in the process. There was also evidence that Georgina Martinez, Santaguida’s

supervisor, who reviewed the termination memo and recommended Parra’s termination to

Barrajas, knew of Parra’s workers’ compensation claim. And, the ultimate decision maker,

Barrajas, relied on Santaguida’s July 10, 2008 termination memo in making her decision. That

memo implicitly informed Barrajas that Parra had a pending workers’ compensation claim

because the memo noted that Santaguida had been in contact with the “Workman’s Compensation

Office” concerning Parra’s ability to return to work. Thus, this factor weighs in Parra’s favor.

Temporal Proximity of the Termination

TDFPS attacks the timing of the termination, noting that Parra was not terminated until

July 15, 2008, almost six months after her injury in January 2008 and four months after she filed

her workers’ compensation claim in March 2008. However, we note that at least two significant

events occurred in the interim. First, Parra introduced undisputed evidence that Santaguida knew

that Parra had hired an attorney as early as May 1, 2008. Second, while Parra was not officially

terminated until July 15, 2008, the evidence showed that Santaguida began engaging in efforts to

terminate Parra as early as June 5, 2008, only a month after she found out that Parra had retained an

attorney. We therefore conclude the factor of temporal proximity also weighs in Parra’s favor.

Failure to Follow Policy

There was evidence of numerous instances in which TDFPS violated its policies, state

policy, and the Labor Code itself in handling and processing Parra’s injury, her lost time, her
35
claim, and the benefits flowing therefrom. Parra’s supervisor, Theresa Santaguida,

acknowledged that she “messed up” handling of Parra’s work-related accident, and even TDFPS’s

counsel admitted to the jury in argument that there were “screw ups,” “errors,” and “mistakes”

made in handling Parra’s workers’ compensation claim, but that those mistakes were

unintentional. The jury could have reasonably inferred from the sheer number of “mistakes” and

the manner in which these “mistakes” were made that TDFPS, and Parra’s supervisors in

particular, exhibited a negative attitude towards her workers’ compensation claim and terminated

her for her workers’ compensation activity.

1. The Delays in Reporting

First, the undisputed evidence established that TDFPS had a specific policy regarding how

work-related injuries were to be handled, which Parra’s supervisor violated. TDFPS policy

required its employees to notify their supervisor of any work-related accident within 24 hours. In

turn, as an important step in ensuring that an injured worker timely receives the benefits to which

she is entitled under the Workers’ Compensation Act, the injured employee’s supervisor is

required to report all work-related accidents within 24 hours to the agency’s human resources

division after receiving information regarding any such accident. The HR division is then

required to report the accident to SORM, which serves as the insurance carrier for state employees.

Although Parra timely fulfilled her duty under TDFPS policy in reporting the work-related

accident to Santaguida the same day as it occurred, the evidence presented at trial was sufficient to

establish that Santaguida did not similarly fulfill her duties, as she failed to ensure that Parra’s

accident was reported to SORM within 24 hours thereafter. Although Santaguida testified that

she attempted to submit the reports to the HR division on at least two occasions, the evidence
36
established that they were not received by either TDFPS’s HR division or SORM, and TDFPS

presented no evidence to explain why the reports were not received. The jury could reasonably

infer from this evidence that no report was timely made in contravention of TDFPS policy.

In addition, both state policy and the Texas Labor Code provide that an employer is

required to file a notice of the employee’s workers’ compensation claim with the employer’s

insurance carrier within eight days of a work-related accident if the employee misses more than

one day of work as a result of the accident. See TEX. LABOR CODE ANN. § 409.005 (West 2015).

This is a critical step in ensuring that an injured worker timely receives workers’ compensation

benefits. Santaguida testified that she was unaware of this requirement, and admitted that the

required notice was not filed on Parra’s behalf. Instead, the undisputed evidence established that

Parra was forced to file her own claim two months later in March 2008.

TDFPS argues that we should overlook this violation because it did not cause Parra harm

since Parra was able to receive her workers’ compensation benefits at a later date.15 TDFPS is

correct in pointing out that Parra did in fact receive her workers’ compensation benefits at a later

date, but this was only because the Labor Code itself protects workers in situations such as this,

when the employer has failed in its duties. See TEX. LABOR CODE ANN. § 409.008 (West 2015)

(when an employer fails to furnish the required injury report to the insurance carrier, the time

period for an employee to file a claim for compensation is tolled until such report is furnished);

Hand & Wrist Ctr. of Houston, P.A. v. SGS Control Servs., Inc., 409 S.W.3d 743, 750-51 (Tex.

15
TDFPS appears to find it significant that it was never penalized for a violation. That TDFPS was not penalized for
a violation is irrelevant. To the contrary, the jury was free to conclude that the state failed to follow state law and its
own policies in not penalizing TDFPS for its failures, a factor that weighs in Parra’s favor.
37
App. – Houston [1st Dist.] 2013, no pet.) (noting that section 409.005 of the Labor Code, like its

predecessor, requires an employer to notify its insurance carrier of employee injuries, but does not

provide that the employee forfeits any protections under the Workers’ Compensation Act as the

result of the employer’s late filing). Further, as explained below, the delays in reporting had

significant consequences on Parra’s ability to make a timely election of benefits and a timely

request for extended leave from the agency.

2. The Untimely Election of Benefits

As explained above, state law and TDFPS policy provides that an injured employee must

be given the opportunity to make an election of benefits shortly after a work-related injury occurs,

allowing the employee to choose between utilizing her own accrued leave, or being placed on

workers’ compensation leave. Further according to TDFPS policy, an employee who does not

make a timely election within five days of the employee’s accident is defaulted to the latter choice,

and is to thereby automatically be placed on workers’ compensation status. However, in

deviation from state policy, Parra was not given this form in a timely manner and was not defaulted

to workers’ compensation status, causing her to exhaust her accrued leave, which was one of the

primary reasons for her termination.

Moreover, Parra was asked to make the election after she had already exhausted all of her

accrued leave. A late election was not allowed under TDFPS policy. And, in any event, Parra

was not provided with any explanation regarding why she was being given the form at such a late

date after her leave had already been exhausted, and she was not informed that her leave could be

reinstated if she chose the option to be placed on workers’ compensation status. TDFPS provided

no evidence to the contrary. The jury was therefore free to conclude that, under these unique
38
circumstances, TDFPS’s failure to follow its own policy constituted an attempt to ensure that Parra

would not have her leave reinstated, thereby ensuring that Parra would be subject to termination

for exhausting her leave.

3. The Unsuccessful Requests for Extended Leave

TDFPS Policy also allows the agency to grant an employee extended sick leave (ESL) or

sick leave pool (SLP) when her leave has been exhausted if the employee has been employed by

the state for at least two years, and was not currently the subject of any disciplinary proceedings.16

The policy further provides that to “avoid leave without pay, requests for extended sick leave

should be submitted . . . at least 10 workdays before the employee’s accrued leave is exhausted.”

In addition, the policy also states that employees who have been injured in a work-related accident

may request such leave, but must do so in lieu of receiving workers’ compensation benefits.

TDFPS has a set policy governing how these requests are to be handled, which was not

followed in Parra’s case. The policy expressly provided that once a supervisor receives an

employee’s request for either extended ESL or ESP leave, the supervisor is required, among other

things, to provide the employee with a WH-380 medical form, which, in turn, the employee’s

physician is to fill out. The supervisor should then submit the completed WH-380 form to the

Time, Labor, and Leave office, which is responsible for determining that the request is properly

documented, and that the employee meets the eligibility requirements. Once the leave request is

submitted, it is supervisor’s responsibility to keep the employee informed of the status of the leave

request.

16
The policy states that two-year employees may receive up to 320 hours, while three-year employees may receive up
to 480 hours.
39
 The record contains evidence from which the jury could have concluded that Santaguida

deviated from TDFPS policy in several respects in handling Parra’s request for extended leave.

First, there is nothing in the record to indicate that Santaguida provided the WH-380 form to Parra

before making the request, as required by TDFPS policy. More importantly, the record

establishes that two days after she made the request, the TLL office informed Santaguida that it

needed the WH-380 form in order to process the request, yet it appears that Santaguida completely

ignored TLL’s request for the form, causing the request for extended leave to be denied. Further,

there is nothing in the record to suggest that Santaguida ever informed Parra of the status of the

request, as required by TDFPS policy.

In addition, after Santaguida submitted her second request for extended leave on Parra’s

behalf on May 6, 2008, it appears that the TLL office concluded that Parra had met the

administrative criteria for receiving such leave, but denied the request on June 25, 2008, in part

because Santaguida only provided documentation that Parra was receiving medical treatment

through June 1, 2008. And once again, the record indicates that Santaguida failed to keep Parra

informed of the status of the second request, and that Parra was not informed of the denial until

after her termination. These numerous failures of TDFPS to follow state law and its own policies

weigh heavily in Parra’s favor.

Stated Reasons for Termination

We find it significant that Parra’s second extended leave request was still pending when

Santaguida began making efforts to terminate Parra on June 5, 2008. In fact, Santaguida even

drafted a dismissal memo seeking to terminate Parra on June 18, 2008, stating that Parra’s accrued

leave had been exhausted, mentioning that her first request for extended leave had been denied in
40
April, but failing to mention that her second request was still pending. Santaguida’s supervisor,

Georgina Martinez, testified that Santaguida was not following “proper procedure” in doing so.

The jury could have concluded from this fact alone that Santaguida was being disingenuous in her

stated reason for seeking permission to terminate Parra.

Further, as explained above, Santaguida failed to provide relevant information regarding

Parra’s situation in virtually every memo that she drafted, and as Parra points out, even included

false or misleading information, characterizing Parra’s absence from work as being the result of a

“documented illness” rather than the result of a work-related accident. Santaguida also failed to

provide relevant information to both Martinez and Barrajas, who made the ultimate decision to

terminate Parra, regarding the delays and other problems that had occurred in handling Parra’s

workers’ compensation claim, and Barrajas herself testified that this was “important” information

she should have had before making her final decision to approve Parra’s termination. Given the

misleading statements made by Santaguida in her dismissal memos and in her conversation with

her supervisors, the jury could have concluded that Santaguida was not providing the true reason

for terminating Parra in her memos, and was instead purposely being deceitful in seeking

permission to terminate Parra.

Moreover, although the final termination memo stated that Parra was being terminated in

part because her absence had created a hardship for Santaguida’s unit, the jury could have

concluded that this reason was false, as Parra presented evidence that she informed Santaguida and

Martinez prior to her termination that her doctor intended to release her to full duty status after she

completed a two-week work conditioning program, which would have been, and in fact was,

completed months before TDFPS was able to hire a replacement for her position. The jury also
41
could have found it significant that TDFPS refused to reinstate Parra after she was released to full

duty by her doctor, even though TDFPS had not yet replaced her position, thereby calling into

question TDFPS’s claim that her absence was causing a true hardship for the unit.

Discriminatory Treatment in Comparison to Similarly Situated Employees

Parra presented evidence concerning TDFPA’s treatment of two other employees in an

attempt to show her treatment was discriminatory in comparison to similarly situated employees.

First, Parra presented the testimony of Maria Sessions, another TDFPS employee who held

the same position as Parra, but in a different unit, who suffered a similar work-related injury. In

particular, Sessions was in an automobile accident while performing her job duties in December

2008, but unlike Parra, her supervisor assisted her in timely submitting her workers’ compensation

claim. Also unlike Parra, Sessions was allowed to return to work on light duty, with medical

restrictions that prevented her from “Kneeling/Squatting” and “Bending/Stooping.” Sessions

was allowed to work with these restrictions until she was released to full duty, and was never

threatened with termination during that time. However, even assuming Sessions was a “similarly

situated employee,”17 this evidence would not have tended to prove the ultimate issue in the

case—whether TDFPS discriminated against Parra because she filed a workers’ compensation

claim—because Sessions was also a workers’ compensation claimant. Treating two workers’

compensation claimants differently does not tend to show that one was discriminated against

because of her workers’ compensation activity. See Parker v. Valerus Compression Servs., LP,

17
TDFPS points out differences between Sessions and Parra concerning their physical conditions and their ability to
perform the essential functions of the job. TDFPS also notes that unlike Parra, Sessions returned to work before her
FMLA leave ran out.
42
365 S.W.3d 61, 69 (Tex.App. – Houston [1st Dist.] 2011, pet. denied) (noting that the employee

had not identified a single employee “on extended leave of absence who had not filed a workers’

compensation claim but had been retained by” the employer) (emphasis added).

Second, at trial, both Georgina Martinez and Diana Barrajas were asked by Parra’s counsel

about how the agency treated another employee, identified only as “Ms. Olson,” who, unlike Parra,

was allowed to be placed on extended sick leave after her FMLA ran out. Both Martinez and

Barrajas testified that Olson, who had lung cancer, was allowed to retain her job despite being out

longer than the 12-week FMLA period. Unlike Parra, Olson had been placed on extended sick

leave at the end of the 12-week FMLA period pursuant to the agency’s discretionary policy, and

was allowed to remain on extended leave for almost 12 months until she retired. Barrajas

acknowledged that Olson was treated differently from Parra, but had no explanation why this

different treatment occurred. Martinez testified that unlike Parra, Olson had requested to be

placed on extended leave before she exhausted her paid leave and thus was not even subject to

termination at that time since TDFPS general policy did not allow for termination unless all leave

of every type had expired. Of course, in Parra’s case, her paid leave might not have been

exhausted before she requested extended leave, if she had been given the correct option when she

was first injured. However, the evidence showed that Olson was an “investigator” and not a case

worker assistant like Parra. And, while Martinez testified that the two jobs were “equally as

important,” and Barrajas testified that there was a need for both positions to be filled, Parra

presented no evidence showing their circumstances were comparable in all material respects. See

Ysleta Indep. Sch. Dist. v. Monarrez, 177 S.W.3d 915, 917 (Tex. 2005) (“Employees are similarly

situated if their circumstances are comparable in all material respects, including similar standards,
43
supervisors, and conduct.”). Thus, Parra failed to show that Olson was a similarly situated

employee whose treatment could be properly compared to hers. Accordingly, this factor weighs

in favor of TDFPS.

Expression of a Negative Attitude

This remaining factor weighs in Parra’s favor. Parra testified that during the July 15

termination meeting, she was told by Martinez that she was being terminated because she “was on

Workers’ Comp,” and not because she had exhausted her leave. The jury was free to believe this

testimony. Thus, there was at least some evidence of an expression of a negative attitude

concerning Parra’s injuries.

Based on the record before us, we conclude the evidence was both legally and factually

sufficient to support a reasonable inference by the jury that Parra was terminated because she filed

and instituted a workers’ compensation and because she hired an attorney to represent her in that

claim. Issue Four is overruled.

CONCLUSION

We affirm the trial court’s judgment.

STEVEN L. HUGHES, Justice
October 28, 2016

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

44