Harmon v. Tex. S. Univ.

672 S.W.3d 684

Donna HARMON, Appellant

v.TEXAS SOUTHERN UNIVERSITY, Appellee

NO. 14-21-00125-CV

Court of Appeals of Texas, Houston (14th Dist.).

Opinion filed June 15, 2023

Kell Simon, Austin, for Appellant.

Summer Lee, John Coolidge, Houston, for Appellee.

Panel consists of Chief Justice Christopher and Justices Bourliot and Spain.

Frances Bourliot, Justice

Donna Harmon appeals from the trial court's dismissal for want of jurisdiction of her employment discrimination lawsuit against Texas Southern University, in which she alleged that TSU failed to provide her with a reasonable accommodation. In two issues, Harmon contends that the trial court erred in granting TSU's plea to the jurisdiction and in refusing to allow additional discovery prior to ruling on the plea. We reverse and remand.

Background

Harmon worked for TSU as a visiting instructor in the English Department. Although her employment was based on a series of one-year appointments, at the time of her termination in December 2018, Harmon had worked for TSU for around sixteen years. As documented by both sides in the lawsuit, Harmon had a history of conflict with the person who was the chair of the TSU English Department at the time of Harmon's termination, Michael Sollars, including one instance in which Sollars summoned campus police to a meeting he was having with Harmon.

Harmon also had a history of trouble with her right knee. Harmon alleged in her declaration in response to the plea to the jurisdiction that she had begun experiencing symptoms of degenerative joint disease in her knee years ago and by 2014, she was regularly using a cane to walk and often used a "knee sleeve." In 2016, X-rays revealed that there was no cartilage in the inner right side of her knee. Harmon described the pain at that time as "unbearable" and explained that it prevented her from being able to stand, bend, or walk during flare-ups. At those times, she would be able to walk only short distances with a cane and always had to use an elevator. Bending from the waist became "nearly impossible."

Harmon further alleged that Sollars would have been well aware of her knee issues. The two had adjacent offices, he would have seen her walking with a cane, and she discussed her knee condition with him "many times in personal conversations." Harmon described one such occasion, when Sollars saw her "struggling on [her] cane" and she told him that the joint was "bone-on-bone." Also in 2016, Harmon was injured while on the job at TSU when a chair she was sitting on broke. Sollars filled out the injury report and indicated Harmon had injured her knee and back. She told him that she thought the fall had made her knee problems worse.

By 2018, Harmon said that her knee condition had worsened and the steroid shots she took periodically were no longer effective. On November 6, 2018, Harmon met with a TSU benefits specialist who told Harmon that she likely qualified for leave under the Family Medical Leave Act in order to have surgery on the knee. The specialist said that she would inform Sollars. On November 26, the specialist informed Harmon that she indeed qualified for leave, which was to start on January 14, 2019, and that the specialist would tell Sollars. Beginning the week of November 26, Harmon had a series of appointments related to the upcoming surgery, including a pre-surgical risk assessment scheduled for December 18. Harmon explained that "[e]ach appointment was crucial to my surgery and could not be re-scheduled because of the surgeon's schedule, other doctors’ scheduling, and because of my FMLA leave schedule." In his own declaration, Sollars denied that he knew about Harmon's pending leave or the extent of her knee trouble, but he acknowledged seeing her occasionally walk with a cane and that she had told him once or twice "that her knee was giving her trouble."

As TSU's 2018 fall semester drew to a close, Harmon completed her grading and other tasks at home. She said that at this point, her "knee condition had become so painful that [she] could not walk at all, even around [her] house." The knee was reportedly so swollen that she could not bend it at all and could not bend at the waist either. In order to attend a doctor's appointment, she had to be helped by a family member to the doctor's office and then transported in a wheelchair.

On December 14, 2018, Sollars sent Harmon an email requesting that she meet with him about a student's complaint regarding one of her classes. Harmon declined, stating, "I am under the doctor's care, so I regret I can not [sic] come in to talk to you." Later that same day, Sollars sent an email to Dean Needha Boutté-Queen requesting that Harmon not be permitted to teach in the spring 2019 semester even though her contract ran through the end of that semester. Sollars gave as his reasons that Harmon was not available for students during required office hours, did not return student calls and emails, was "abrupt," "insulting," and "bullying" towards students, and graded students too harshly, meaning that many of her freshman English students did not advance. He also noted that she had alienated herself from other staff, served on no committees despite being asked to do so, and had refused to meet with him. Boutté-Queen forwarded Sollars email to the university provost and added that she herself had that very day seen two emails regarding Harmon's lack of responsiveness to students.

On December 17, 2018, Sollars again emailed Harmon. The subject line of the email states, "Required meeting 9:30 A.M. tomorrow, December 18, 2018, 309 Hannah Hall." The text of the email states "[y]ou are requested to meet with Dean Boutté-Queen and me" and then repeats the time and place. In his declaration in support of the plea, Sollars stated that the purpose of the meeting was to discuss the termination of Harmon's employment with TSU but had "Harmon attended and displayed assurances that she would conduct herself in a more professional manner regarding her duties as a teacher at TSU, the outcome could have been favorable to her."

At this point, TSU's fall semester had ended and Harmon was working from home. She responded to Sollars’ email by stating, "I regret that I will not be able to make the meeting. I have a doctor's appointment. Please keep me informed with whatever is covered." Harmon also emailed Boutté-Queen directly, saying,

I received a request that you would like to meet with me on tomorrow. I am unable to meet because I have a doctor's appointment. I have been struggling with a knee injury. The knee is so swollen, it is difficult for me to bend. Please let me know what this meeting is about. Your response to my request is greatly appreciated.

Sollars subsequently responded to Harmon's earlier email by telling her, "I must insist on your presence at the meeting tomorrow morning at 9:30. Your continued employment is contingent upon you meeting us."

Harmon ultimately did not show for the meeting on December 18, and TSU terminated the remainder of her employment contract. Harmon thereafter filed a charge of disability discrimination against TSU with the United States Equal Employment Opportunity Commission. The EEOC dismissed the charge, concluding that Harmon was not disabled and TSU was within its rights to require her to attend the meeting on December 18, 2018. Harmon then filed the present lawsuit under Texas Labor Code chapter 21, alleging TSU failed to provide her with a reasonable accommodation and instead terminated her employment. TSU filed a plea to the jurisdiction, alleging Harmon had failed to state a prima facie case of employment discrimination and thus her claim was barred by governmental immunity. Harmon responded and both sides filed evidence, including declarations by Harmon and Sollars. The trial court granted TSU's plea and dismissed the case. In two issues on appeal, Harmon contends the trial court erred in granting the plea to the jurisdiction and in refusing to permit additional discovery.

Standards of Review

As a state university, TSU is immune from suit absent an express waiver of governmental immunity. Tex. S. Univ. v. Pepper Lawson Horizon Int'l Grp., LLC , 634 S.W.3d 428, 435 (Tex. App.—Houston [1st Dist.] 2021, pet. filed) ; see also Alamo Heights I.S.D. v. Clark , 544 S.W.3d 755, 771 (Tex. 2018). The Texas Legislature has created a limited waiver of immunity for claims properly brought under Labor Code chapter 21. Mission Consol. I.S.D. v. Garcia , 372 S.W.3d 629, 636 (Tex. 2012).

To prevail on a claim of immunity from suit, a governmental defendant may challenge (1) whether the plaintiff has alleged facts that affirmatively demonstrate the court's jurisdiction to hear the case, (2) the existence of jurisdictional facts, or (3) both. See Tex. Dep't of Transp. v. Lara , 625 S.W.3d 46, 52 (Tex. 2021). When, as here, the defendant challenges the existence of jurisdictional facts, the court must move beyond the pleadings and consider evidence. See id. The analysis then mirrors that of a traditional summary judgment. Id.

When the defendant challenges the plaintiff's allegations with sufficient supporting evidence, the plaintiff must raise at least a genuine issue of material fact on all challenged elements to avoid dismissal. Alamo Heights , 544 S.W.3d at 771 ; Metro. Transit Auth. of Harris Cty. v. Douglas , 651 S.W.3d 122, 127 (Tex. App.—Houston [14th Dist.] 2021, no pet.). When the evidence submitted to support the plea implicates the merits of the case, we take as true all evidence favorable to the plaintiff, indulging every reasonable inference and resolving any doubts in the plaintiff's favor. Alamo Heights , 544 S.W.3d at 771. In doing so, however, we cannot disregard evidence necessary to show context, and we cannot disregard evidence and inferences unfavorable to the plaintiff if reasonable jurors could not. Id.

We review a trial court's ruling on a plea to the jurisdiction de novo. See Douglas , 651 S.W.3d at 127. Because the...