TxDOT former employee failed to establish disability discrimination or retaliation claims

Melissa K. Ferguson v. Texas Department of Transportation, 11-15-00110-CV (Tex. App. – Eastland, August 31, 2017).

This is an employment disability discrimination and retaliation case where the Eastland Court of Appeals affirmed a judgment in favor of the employer.

Ferguson was employed with the Texas Department of Transportation (“TxDOT”) as an account specialist at the time she was terminated. Prior to termination, Ferguson was diagnosed with severe clinical depression and requested an accommodation via transfer away from her current supervisors. Ferguson’s job duties included paying vendor invoices and providing customer service.  Ferguson sued alleging disability discrimination and a failure to accommodate. TxDOT filed a plea to the jurisdiction and a combined traditional and no-evidence motion for summary judgment. After the trial judge recused himself, a retired judge presided over the hearing and granted TxDOT’s summary judgments. Ferguson appealed.

The record reflected a tense working relationship between Ferguson and her supervisors for almost a year. HR warned Ferguson she needed to improve communications with her supervisors, which did not appear to occur.  The record also reflects Ferguson failed to timely pay certain invoices resulting in contractual consequences to TxDOT and other job-related performance issues. The termination occurred in November of 2012. While Ferguson’s discrimination and retaliation claims were timely as to her termination, the alleged failure to accommodate occurred in 2011 and early 2012. As a result, the 180-day jurisdictional window to file a failure to accommodate complaint had passed and no indications exist it was a continuing violation. As a result, jurisdiction only existed for the termination. As to the termination, even if the court assumed Ferguson presented a prima facie case, she failed to create a fact issue as to pretext. Ferguson admitted that the failure to pay other fuel invoices was because she either “forgot” to do them or was “not sure” why they had not been paid. Ferguson acknowledged that she had communication issues with her supervisors. Further, she failed to show a causal link between protected conduct and the adverse employment action taken by TXDOT.  As a result, summary judgment was proper. Ferguson failed to object to the assigned judge, in writing within seven days and therefore waived the objection on appeal. Judgment affirmed.

If you would like to read this opinion click here. Panel includes Chief Justice Wright, Justice Willson and Justice Bailey. Memorandum Opinion by Justice Willson.  The attorney listed for TxDOT is Susan Desmarais Bonnen.  The attorneys listed for Ferguson are Kolter McKenzie and John E. Wall, Jr.

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