County employee entitled to proceed with “regarded as” disability claim after completing treatment for tuberculosis; all other claims dismissed under plea to the jurisdiction

El Paso County, Texas v. Mary Lou Vasquez 08-15-00086-CV  (Tex. App.- El Paso, May 5th 2016)

This is an employment discrimination/retaliation case where the El Paso Court of Appeals reversed in part and affirmed in part the denial of the County’s plea to the jurisdiction.

Vasquez was  a Collection Specialist with the El Paso County’s Bond Forfeiture Unit. Vasquez suffered a heart attack at home and had a quintuple bypass heart surgery. While at the hospital she contracted tuberculosis (“TB”). Vasquez took an employer-approved leave of absence from work. When Vasquez returned to work, she was able to perform her job as a Collection Specialist with reasonable accommodation. Nevertheless, she was involuntarily transferred to a new position in the “Hot Checks” Unit of the County Attorney’s office. According to Vasquez, one of the assistant county attorneys informed her she was not permitted to return to her position because one or more employees had threatened to either walk off the job if she returned to work or sue the County if they acquired TB. Vasquez filed a charge of discrimination (“the original charge”) in which she alleged the County discriminated against her based on age and disability. She later filed an amended charge for retaliation, being “regarded as” disabled, and unauthorized disclosure of medical condition, however she did not sign that charge under oath or penalty of perjury. The County filed a series of pleas to the jurisdiction but they were ultimately denied.

Because of the amended charge, the County asserted the retaliation claim and “regarded as” claims are not ripe since Vasquez did not exhaust her administrative remedies for those claims. The County asserted (1) the original charge did not raise retaliation; (2) the amended charge raising retaliation was not signed under oath; and (3) Vasquez failed to file her retaliation claim with the TWC. Vasquez responds that her amended charge relates back to her original charge and that she dually-filed her charge with both the EEOC and TWC. Generally, amendments that raise a new legal theory of discrimination do not relate back to the initial charge of discrimination, unless the facts supporting both the amendment and the initial charge are essentially the same. Courts will not construe the charge to include facts that were initially omitted. The charge must contain an adequate factual basis to put the employer on notice of the existence and nature of the claims against it. A lawsuit under the Act will be limited in scope to only those claims that were included in a timely administrative charge and to factually related claims that could reasonably be expected to grow out of the agency’s investigation.  Here, there are no factual allegations contained in Vasquez’ original charge to implicate a claim for retaliation. Rather, her amendment raised a new legal theory, separate and distinct from her disability and age claims, thereby negating the application of the relation back doctrine. The plea should have been granted as to the retaliation charge. However, the “regarded as” claim naturally flows from the original “actual disability” claim, so the plea was properly denied as to it under a failure to exhaust challenge. But, the court held Vasquez failed to properly plead sufficient facts to establish a prima facie case of disability discrimination. Instead, she has affirmatively established that she cannot prove a crucial element of her disability claim–that she suffered from a disability at the time of the County’s alleged adverse actions. Not only had she recovered from her heart attack, government health officials had released her to resume work because she successfully completed her course of treatment for TB. Finally, no actual cause of action exists in an employment context for release of confidential medical information for a non-covered entity. So the plea should have been granted as to that claim. In the end, the “regarded as” claim is the only one to survive and is remanded.  All others are dismissed.

If you want to read this opinion click here. Panel: Chief Justice McClure, Justice Rodriguez and Justice Hughes. Opinion issued by Chief Justice McClure. The attorneys for Mary Lou Vasquez are Hon. Joe Rosales and Hon. Robert L. Blumenfeld and for El Paso County the attorney is Hon. Jose A. Howard- Gonzalez.