Tex. Dep't of Criminal Justice v. Tidwell

677 S.W.3d 98

TEXAS DEPARTMENT OF CRIMINAL JUSTICE, Appellant,

v.Rita TIDWELL, Appellee.

No. 08-22-00130-CV

Court of Appeals of Texas, El Paso.

April 28, 2023

ATTORNEY FOR APPELLANT: Sheaffer Fennessey, Assistant Attorney General, Law Enforcement Defense Division, P.O. Box 12548, Austin, TX 78711-2548.

ATTORNEY FOR APPELLEE: Oscar Mendez, Mendez Isaac Joudi, PLLC, 320 Texas Ave., Ste. 300, El Paso, TX 79901.

Before Rodriguez, C.J., Palafox, J. and Soto, J.

OPINION

LISA J. SOTO, Justice

Appellee Rita Tidwell filed a lawsuit against her former employer, Appellant Texas Department of Criminal Justice (TDCJ), alleging her employment was terminated in retaliation for filing a workers’ compensation claim after she was injured on the job. TDCJ filed a plea to the jurisdiction, claiming immunity from suit, which the trial court denied. TDCJ appeals, contending Tidwell failed to allege sufficient jurisdictional facts to waive its immunity.

I. FACTUAL AND PROCEDURAL BACKGROUND

In 2012, Tidwell started working at the Sanchez State Jail, a minimum security facility, as a jail commissary assistant manager. In 2016, she became an inventory specialist; her responsibilities included ordering supplies; stocking and retrieving supplies from the jail's supply office and uniform room; and balancing her department's budget on a monthly basis.

A. Tidwell's accident

On March 1, 2017, Tidwell was unpacking a large shipment of uniforms and stocking them on shelves in the jail's uniform room. Tidwell used a four-foot stepladder to place a set of uniforms on a shelf that was approximately six- to seven-feet high. At a height of 4’11" and with narrow space, Tidwell routinely placed the ladder sideways in relation to the shelving for better access to the high shelves. That day, as she was descending the ladder, it began to move, causing her to lose her footing and fall backwards into the shelving. It is undisputed that Tidwell sustained injuries to the right side of her body, including her ankle, hand, elbow, and knee in the fall.

The jail's medical personnel and the unit's risk manager, Vicente Quidachay, were summoned to the scene and determined that Tidwell should be taken to a nearby hospital. According to Tidwell, Quidachay helped her fill out a workers’ compensation form, which required her to choose how she would use her accrued sick and vacation leave if she lost time from work and when she would begin receiving any workers’ compensation benefits to which she might be entitled.¹ As discussed in more detail below, she approved the option that required her to use all of her accrued sick and vacation leave before she would be entitled to receive workers’ compensation benefits.

Quidachay drove Tidwell to the hospital, where he assisted her with filling out additional forms, as she was unable to do so given the injuries to her right hand. Quidachay stayed with Tidwell at the hospital until her husband arrived.

B. Tidwell's placement on modified/light duty

At her doctor's direction, Tidwell stayed home from work through March 6, 2017, but was cleared by her primary care physician to return to work on modified/light duty on March 7. Upon her return, she signed a form entitled, "Offer of Temporary Alternate or Modified Duty Assignment," in which she agreed to return to work in the same position with the same pay but with several medical restrictions, including no use of her right hand and a limit of two hours of standing and walking each day, as well as the requirement that she wear a sling and a walking boot as recommended by her doctor.²

Tidwell's duties were purportedly limited to typing and answering the phone; the modified duty restrictions indicated "you shall only be assigned tasks consistent with your physical abilities." TDCJ assigned an officer-in-training to assist Tidwell with the job duties she could not perform, such as retrieving items from the storage room.

Tidwell accepted the modified job offer. As it was underway, the assigned officer-in-training was called away to do other work on various occasions; when she asked the captain for help, she was told that they were too "short" in staffing to provide it to her. Tidwell felt pressured to get her work done, so she ended up working beyond her restrictions. And although TDCJ had previously allowed designated inmates to assist her with some of her tasks, according to Tidwell, for safety reasons she was not supposed to be alone with inmates after her injury. At the same time, Tidwell was exposed to inmates as she went to and from her work area, where she either had to use the stairs in violation of her restrictions or use a slippery ramp, which posed a safety hazard.

Tidwell requested a different light-duty position that would better fit her restrictions (in open positions in the mailroom and the inmate office) and would remove her from the presence of inmates but was told her pay was too high to place her in one of those positions. Warden Parker indicated that HR assigns light-duty positions based on the needs of TDCJ. And HR Representative Rivas explained that when Tidwell was offered the position with modifications, it was her choice to accept it or not. Tidwell felt compelled to accept the offer understanding that if she did not accept it, her workers’ compensation payments would be reduced.

C. Tidwell's exhaustion of her leave options

In accordance with TDCJ policy, which set forth a twelve-week limitation for an employee to be on modified/light duty, Tidwell's modified job assignment lasted until May 30, 2017.³ During that time, Tidwell continued receiving treatment for her injuries and provided TDCJ with status reports from her treating physician, who continued to impose restrictions on Tidwell thereby limiting her ability to fully perform her job.⁴ When her twelve-week modified job assignment ended on May 30, 2017, her treating physician had still not released her to return to work without restrictions. Tidwell asked if she could move to a secretarial position but was told that the pay differential was too great and she would not get that job, so she did not apply for it.⁵ Tidwell did not work and was paid her full salary until she exhausted all of her accrued sick leave and vacation time on July 3, 2017. Tidwell began receiving her workers’ compensation benefits the same month.

In a notice dated July 3, 2017, TDCJ notified Tidwell it was placing her on leave without pay (LWOP) for a maximum period of 180 days. The notice required Tidwell to provide TDCJ with status reports from her doctor during her absence and present a "release to return to work" form if and when her doctor released her to work. It also informed her that if she had a permanent disability, her return to work would be governed by the Americans with Disability Act (ADA).

While on LWOP in October 2017, Tidwell had surgery on her right hand, which improved her condition but did not restore her hand to full function. Tidwell provided TDCJ a status report dated November 14, 2017, from her orthopedic physician stating she was "unable to perform [her] job duties" through December 27, 2017. Tidwell subsequently provided TDCJ a final status report dated December 27, 2017, from the same physician releasing Tidwell to work light duty only with continued restrictions on her activities, including limitations on lifting, "pushing/pulling" and "grasping/squeezing" through January 31, 2018.

D. Tidwell's administrative separation from TDCJ

In a notice dated January 2, 2018, TDCJ notified Tidwell that her LWOP had expired and she was being administratively separated from her employment effective January 3, 2018, due to exhausting her leave entitlements.⁶ The notice further stated "[i]f you are able to return to TDCJ employment at a later date, application should be made through the Employment Section, Human Resources Division." Tidwell confirmed that she could reapply once her restrictions were removed. She did not apply for any other positions at TDCJ after being separated from her employment and did not make a claim that she was permanently disabled or request an accommodation under the ADA.

E. Tidwell's lawsuit

In March 2019, Tidwell filed her lawsuit against TDCJ, alleging it wrongfully discharged her in violation of Chapter 451 of the Texas Labor Code for filing her workers’ compensation claim. She also alleged that TDCJ created a hostile working environment after she filed her claim, contending, among other things, that TDCJ had failed to provide her with a job she could perform with her restrictions and "worked [her] against her restrictions" during her 12-week modified job assignment. TDCJ filed an answer and special exceptions, seeking to determine if Tidwell intended to raise a separate claim of hostile working environment or if this allegation was part of her Chapter 451 claim of retaliation. It appears that Tidwell did not respond, and the trial court did not rule on the request.⁷

F. TDCJ's plea to the jurisdiction

Following several months of discovery, TDCJ filed a plea to the jurisdiction and a traditional motion for summary judgment, contending it had governmental immunity from Tidwell's retaliation suit and Tidwell had no evidence to support a prima facie case of retaliation that would have waived its immunity. In particular, TDCJ alleged she had no evidence of a causal connection between the filing of her workers’ compensation claim and her termination. TDCJ argued that the undisputed evidence showed it terminated Tidwell solely due to exhausting her leave options, as required by TDCJ's uniformly enforced leave policy. Tidwell responded to the plea, arguing, among other things, that TDCJ failed to uniformly enforce its absence control policy and she had circumstantial evidence to support an inference that TDCJ's real reason for terminating her was retaliation for filing a workers’ compensation claim.

Following a hearing, the trial court denied TDCJ's plea to the jurisdiction and motion for summary judgment in its...