Deville v. Univ. of Tex. M.D. Anderson Cancer Ctr.

634 S.W.3d 324

David DEVILLE, Appellant

v.The UNIVERSITY OF TEXAS M.D. ANDERSON CANCER CENTER, Appellee

NO. 01-19-00830-CV

Court of Appeals of Texas, Houston (1st Dist.).

Opinion issued August 26, 2021

Mark G. Lazarz, Dorian Vandenberg-Rodes, Shellist Lazarz Slobin LLP, 11 Greenway Plaza, Ste. 1515, Houston, Texas 77046, for Appellant.

Ken Patton, Attorney General of Texas, Andrea Leyva, Assistant Attorney General, P.O. Box 12548, Capitol Station, Austin, Texas 78711-2548, for Appellee.

Panel consists of Justices Kelly, Guerra, and Farris.

April L. Farris, Justice

Appellant David Deville sued his former employer—The University of Texas M.D. Anderson Cancer Center ("M.D. Anderson")—for disability discrimination under the Texas Commission on Human Rights Act ("TCHRA") on the theory that he was terminated less than three months after returning from disability leave following a stroke. M.D. Anderson filed a plea to the jurisdiction, asserting that it retained sovereign immunity from suit because Deville did not plead a prima facie case of disability discrimination despite having an adequate opportunity to do so. The trial court granted M.D. Anderson's plea and dismissed Deville's suit.

Deville appeals on the grounds that (1) he was not required to plead a prima facie case at the pleadings stage in order to trigger the waiver of sovereign immunity under the TCHRA; and (2) in the alternative, he satisfied his burden to plead a prima facie case of disability discrimination. We hold that Deville was required to plead a prima facie case of disability discrimination to trigger a waiver of M.D. Anderson's sovereign immunity, and Deville carried his pleading burden in this case. We reverse and remand for further proceedings.

Background

Unless the party filing a plea to the jurisdiction has challenged and conclusively negated a jurisdictional fact pled by the plaintiff, we must assume the fact to be true for purposes of our jurisdictional analysis. See Tex. Dep't of Parks & Wildlife v. Miranda , 133 S.W.3d 217, 226 (Tex. 2004) ; Jones v. City of Dallas , 310 S.W.3d 523, 529 (Tex. App.—Dallas 2010, pet. denied). Because M.D. Anderson has not attempted to conclusively negate the facts that Deville pleaded at this juncture, we recount the facts as Deville pleaded them.

M.D. Anderson hired Deville as the Director of the Financial Clearance Center on December 7, 2015. He reported to Angela Bailey, the Executive Director. Two weeks later, on December 21, Deville was admitted to the hospital. He suffered a hemorrhagic stroke the following day, which required him to take disability leave for the next three months. On March 21, 2016, Deville returned to work with minimal restrictions on his ability to perform his job duties.

When Deville returned to work, he could perform the essential functions of his job, but M.D. Anderson subjected him to less favorable terms and conditions of employment. For example, Bailey did not notify Deville of changes to his department and direct reports, went out of her way to criticize his work performance, and excluded him from meetings with the other director and a consulting group.

On May 10, 2016, Bailey issued Deville a verbal warning regarding his work performance, but she was vague and failed to give specific examples of problematic performance. On May 18, Bailey issued Deville a written "probationary warning" letter, stating that continued performance issues could result in termination of his employment. The written warning contained no specific examples of problematic performance. Instead, it identified duties contained in Deville's job description and alleged that he had not "demonstrated the ability to perform" these duties during the eight days since Bailey's verbal warning.

Deville did not have an opportunity to address Bailey's concerns. The next day, on May 19, Deville experienced symptoms similar to those that he experienced during his stroke, causing him to take a second medical leave until May 31, 2016. He returned to work on June 1. M.D. Anderson terminated Deville's employment on June 3, 2016.

Deville sued M.D. Anderson for disability discrimination in violation of the TCHRA.¹ See TEX. LAB. CODE § 21.051. M.D. Anderson filed an answer and a plea to the jurisdiction. M.D. Anderson asserted that it was entitled to sovereign immunity because Deville had not alleged facts supporting the final element of a prima facie disability discrimination claim—i.e., that he was treated less favorably than non-disabled employees or that he was replaced by a non-disabled employee. M.D. Anderson did not challenge the allegations that Deville was disabled or regarded as disabled. Nor did M.D. Anderson contest any of the jurisdictional allegations in Deville's petition.² Deville responded to M.D. Anderson's plea by arguing that he had sufficiently "alleged that he was treated less favorably and subjected to different terms and conditions than non-disabled employees." Deville also amended his petition to add new factual allegations.

In its reply, M.D. Anderson argued for the first time that "Deville must identify a comparator" by name to whom he could compare his treatment and that the comparator could not be himself. M.D. Anderson contended that Deville's pleadings relied solely on himself as a comparator and that his "[f]ailure to allege that he was treated less favorably than non-disabled employees or that he was replaced by non-disabled employees is fatal to his prima facie case."

On December 7, 2017, the trial court heard oral argument on M.D. Anderson's plea. M.D. Anderson maintained that Deville had the burden to identify a comparator who was treated more favorably than he was treated, but he had only identified himself as a comparator, which was insufficient as a matter of law. Deville acknowledged that he pleaded "that there's a comparator" and that he "was treated less favorably than non-disabled employees," but he contended that, prior to conducting discovery, "there's no way to know the specific people that would qualify as comparators." He further contended that he could plead himself as his own comparator by alleging that "he was treated less favorably after he was perceived or actually had a disability than he was before" the disability.

After waiting more than a year for a ruling on its plea, M.D. Anderson filed a petition for writ of mandamus in this Court seeking to compel the trial court to rule on its plea to the jurisdiction, and the Court conditionally granted the writ. See generally In re Univ. of Tex. MD Anderson Cancer Ctr. , No. 01-19-00201-CV, 2019 WL 3418567 (Tex. App.—Houston [1st Dist.] July 30, 2019, orig. proceeding). The trial court then signed an order granting M.D. Anderson's plea to the jurisdiction and dismissing Deville's claims with prejudice. This appeal followed.

Plea to the Jurisdiction

In his sole issue with multiple subparts, Deville contends that the trial court erroneously dismissed his TCHRA disability discrimination claim. He argues that he had no obligation to plead a prima facie case of discrimination because the prima facie requirement is an evidentiary standard, not a pleading standard. Nonetheless, Deville argues that he did plead a prima facie case of discrimination by alleging facts demonstrating that M.D. Anderson treated him less favorably shortly after he became disabled (or regarded as disabled).

M.D. Anderson argues that Deville could not plead a prima facie case of discrimination without naming a comparator employee who was treated less favorably than Deville was treated. According to M.D. Anderson, Deville cannot satisfy the prima facie case requirement by contrasting M.D. Anderson's treatment of Deville before his hemorrhagic stroke with M.D. Anderson's treatment of him after his stroke.

A. Standard of Review

It is undisputed that M.D. Anderson, as a governmental entity, enjoys sovereign or governmental immunity from suit unless the Legislature has waived its immunity. See Alamo Heights Indep. Sch. Dist. v. Clark , 544 S.W.3d 755, 770 (Tex. 2018) ; see also Bansal v. Univ. of Tex. M.D. Anderson Cancer Ctr. , 502 S.W.3d 347, 353 (Tex. App.—Houston [14th Dist.] 2016, pet. denied). When the Legislature has not waived a governmental entity's immunity, trial courts lack subject matter-jurisdiction over claims against the entity. Mission Consol. Indep. Sch. Dist. v. Garcia , 372 S.W.3d 629, 636 (Tex. 2012).

A governmental entity can raise its immunity from suit in a plea to the jurisdiction, and we review de novo the trial court's ruling on the plea. Alamo Heights , 544 S.W.3d at 770 ; Miranda , 133 S.W.3d at 228. A plea to the jurisdiction may challenge the pleadings, the existence of jurisdictional facts, or both. Alamo Heights , 544 S.W.3d at 770. When, as here, a plea challenges only the pleadings, "we determine if the plaintiff has alleged facts affirmatively demonstrating subject-matter jurisdiction." Id. We "construe the pleadings in favor of the plaintiff and look to the pleader's intent." Harris Cty. v. Annab , 547 S.W.3d 609, 612–13 (Tex. 2018) (quoting Tex. Ass'n of Bus. v. Tex. Air Control Bd. , 852 S.W.2d 440, 446 (Tex. 1993) ).

B. The TCHRA and Its Impact on Sovereign Immunity

The TCHRA prohibits employers from discriminating against individuals "because of" disability. TEX. LAB. CODE § 21.051. Specifically, the TCHRA prohibits an employer, because of disability, from "discharg[ing] an individual" or "discriminat[ing] in any other manner against an individual in connection with compensation or the terms, conditions, or privileges of employment." Id. § 21.051(1). This prohibition "applies only to discrimination because of or on the basis of a physical or mental condition that does not impair an individual's ability to reasonably perform a job." Id. § 21.105. The TCHRA waives a governmental employer's immunity for TCHRA claims asserted against the employer, "but only when the plaintiff states a claim for conduct that actually violates the statute."...