Tex. Tech Univ. Health Scis. Ctr. – El Paso v. Niehay

671 S.W.3d 929

TEXAS TECH UNIVERSITY HEALTH SCIENCES CENTER – EL PASO, Petitioner,

v.Dr. Lindsey NIEHAY, Respondent

No. 22-0179

Supreme Court of Texas.

Argued February 21, 2023

OPINION DELIVERED: June 30, 2023

S. Grant Dorfman, Bellaire, Judd E. Stone II, Justin Manchester, Brent Webster, Houston, Shawn Cowles, Jeffrey Edwin Farrell, Thomas Andren Albright, Ari Cuenin, Atty. Gen. W. Kenneth Paxton Jr., for Petitioner.

Susan Marcus Forbes, Stewart W. Forbes, El Paso, Dorian Vandenberg-Rodes, Houston, Michael Todd Slobin, for Respondent.

Daniel B. Kohrman, Brian East, Austin, William Alvarado Rivera, for Amici Curiae AARP Foundation, AARP, Disability Rights Texas.

Stephen F. Fink, Bryan P. Neal, Dallas, for Amicus Curiae BNSF Railway Company.

Brian East, Austin, for Amicus Curiae American Diabetes Association.

Chief Justice Hecht delivered the opinion of the Court, in which Justice Devine, Justice Blacklock, Justice Busby, Justice Bland, Justice Huddle, and Justice Young joined.

The Texas Commission on Human Rights Act (TCHRA)¹ makes it unlawful for an employer to discriminate against an employee for being regarded as having an impairment. The question presented in this case is whether morbid obesity qualifies as an impairment under the TCHRA without evidence that it is caused by an underlying physiological disorder or condition. We hold that it does not. Accordingly, we reverse the judgment of the court of appeals and dismiss the case for want of jurisdiction.

I

After graduating from Texas Tech University School of Medicine in May 2015, Dr. Lindsey Niehay, 27, began a medical residency at the University's emergency-medicine department in El Paso. Dr. Radosveta Wells effectively ran the residency program under the supervision of the chair of the emergency-medicine department, Dr. John MacKay.² Throughout medical school and her residency, Niehay was morbidly obese.³ During her residency, she weighed around four hundred pounds.⁴

Approximately five months into Niehay's first year of residency, concerns arose regarding her performance. One of the professors and attending physicians, Dr. Sabrina Taylor, sent Wells an email entitled "Problem With a Resident". Taylor reported that she and Niehay had performed a procedure together over the weekend and that Niehay had "really struggled". Taylor said that Niehay was "sweating profusely, dyspneic⁵ and had to take multiple breaks because of her inability to stand and at times bend over to gain the best access." Taylor "blame[d] it primarily on [Niehay's] habitus."⁶ Taylor stated that she had to "correct [Niehay's] technique, because she kept getting distracted by all of the issues she was having." She was concerned about Niehay's ability to perform "physically challenging procedures" and "fear[ed] it could be problematic and quite dangerous." Taylor noted that "[i]t certainly doesn't instill the greatest amount of confidence in the patients she treats, as they see her suffer through, sweating and panting along the way." Taylor also reported that Niehay "seems to avoid being physically active in the sim[ulation] lab" and that she has to be "encourage[d]" to do invasive procedures.

In response, Wells solicited input from other attending physicians regarding issues they had experienced with Niehay, and other physicians expressed concerns. One physician found Niehay's motivation to be "less than optimal" and said that she was "unclear [about] how to evaluate basic patients." He also said that Niehay "pretty much stated [that] she hadn't been studying[ ]", and he found that to be "discouraging". Another physician found Niehay's performance during a recent procedure to be satisfactory, "perhaps exceeding her level of training", but noted that her sweating could pose a patient safety issue due to the potential for contamination of a sterile area.

Over the next several weeks, additional concerns arose. In late December, Niehay missed her shift and instead showed up as a patient in the emergency department where she was supposed to be working, complaining of "really bad heart palpitations." She failed to inform Wells of her absence until nearly 24 hours later. In January 2016, Wells learned that Niehay had self-prescribed a refill for her blood-pressure medication, in violation of University policy for residents. Shortly thereafter, Wells received an email from Dr. Adam Moore, a chief resident, reporting that Niehay opted not to perform a procedure on one of her patients because the proper size gown was not readily available to her. Instead, she allowed another intern to perform the procedure. Moore stayed an hour after his shift to assist with the procedure, but Niehay departed. Moore was concerned that Niehay was "giving away valuable procedures as an intern" and "not sticking around to take care of her patient."

After consulting with others, Wells recommended an emergency meeting of the Clinical Competency Committee to consider how best to respond to Niehay's issues. The Committee met and recommended that Wells place Niehay on a three-month probation with a remediation plan. Over the next two weeks, while Wells prepared the remediation plan, she continued to receive negative reports about Niehay's performance.

For example, Dr. Priscilla Reyes gave Niehay low scores on an end-of-shift evaluation and told Wells that Niehay's "knowledge base appears to be very much lacking." The following week, Wells received emails from Reyes and two senior residents, Dr. Michael Tran and Dr. Brandon Charlton, regarding a central-line procedure that Niehay had recently performed. Reyes reported that Niehay was not exhibiting the appropriate level of urgency to begin the necessary, time-sensitive procedure. Charlton relayed that she seemed inexperienced and required some assistance during the procedure and that she became physically ill while performing it. Tran explained that Niehay "overheated" and noted that her reaction could be problematic in a Level 1 trauma room.

Wells and MacKay met with Niehay at the end of January and informed her that she would be placed on probation and under a remediation plan. Niehay responded by requesting a one-month leave of absence to give herself time for self-assessment and to demonstrate her good-faith desire to address any deficiencies. MacKay and Wells agreed to her request.

Niehay returned to her residency in March 2016. By the end of March, however, Wells had received additional reports from a number of faculty members expressing similar concerns regarding Niehay's performance, attendance, professionalism, and patient care. In one incident, Niehay came into work but left within an hour with flu-like symptoms. She asked two other residents to see her patients for her and then departed. One of the residents who took over caring for her patients, Dr. Erin De La Cruz, reported to Wells via email that Niehay left unfinished notes and did not order labs for her patients, which posed a patient safety risk because the residents were unsure how much she had done and "something could have been missed."

De La Cruz also reported that there were at least two occasions in which Niehay declined to evaluate critically ill patients, creating a patient safety risk. In the first incident, a nurse came into the lounge and informed Niehay and De La Cruz that a patient had an elevated heart rate and was complaining of abdominal pain. Without evaluating the patient, Niehay instructed the nurse to give the patient fentanyl. De La Cruz went to see the patient and found that the patient also had rapid breathing and low oxygen levels and needed to be placed on a ventilator. De La Cruz stated that the patient "likely would have continued to decompensate" had she not gone to see him. In the other incident, a nurse reported to the doctors that a patient who had recently had surgery for a stab wound was vomiting. De La Cruz was busy and asked Niehay to evaluate him, and Niehay responded, "Well, what am I supposed to do about it?" After further pressure from De La Cruz, Niehay eventually saw the patient, and it was discovered that he had a small-bowel obstruction. De La Cruz ended her email by noting that "[i]t has been a very frustrating month as us other interns have had to shoulder a lot of the burden [Niehay] has left."

Wells forwarded these reports to the Committee and proposed another emergency meeting. The Committee met and recommended that Niehay be suspended pending an investigation and evaluation of her post-leave performance. On April 19, 2016, the Committee recommended that Niehay be dismissed from the residency program. MacKay agreed with the recommendation and sent a letter to Niehay on April 25 notifying her of the recommendation. Niehay appealed, but the University's appeals panel upheld the recommendation and the University president agreed, dismissing Niehay from the program in May.

Niehay filed complaints of illegal discrimination with the Texas Workforce Commission and the federal Equal Employment Opportunity Commission (EEOC), both of which issued her "right to sue" letters. She then filed this suit, complaining that the University dismissed her because of her morbid obesity, which she asserts constitutes unlawful discrimination because of a disability under the TCHRA.⁷ The University filed a combined plea to the jurisdiction and summary-judgment motion, arguing that the Labor Code does not waive its sovereign immunity because Niehay presented no evidence to support her claim. The trial court denied the plea and motion. In a per curiam opinion, the court of appeals affirmed.⁸ We granted the University's petition for review.

II

Because the University is a state institution, sovereign immunity protects it from suit or liability unless the Legislature has expressly waived that immunity.⁹ The TCHRA waives sovereign immunity, "but only if the plaintiff alleges facts that would establish that the state agency violated the Act and, when challenged with contrary evidence, provides evidence...