Dallas County Hospital District D/B/A Parkland Health and Hospital System v. Sheri Kowalski ( 2023 )

DISSENT and Opinion Filed April 5, 2023
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-21-00379-CV
DALLAS COUNTY HOSPITAL DISTRICT D/B/A PARKLAND HEALTH
AND HOSPITAL SYSTEM, Appellant
V.
SHERI KOWALSKI, Appellee
On Appeal from the County Court at Law No. 5
Dallas County, Texas
Trial Court Cause No. CC-19-03723-E
DISSENT
Before Justices Smith, Miskel, and Kennedy
Dissenting Opinion by Justice Miskel
The majority has described the relevant background facts and law well.
However, I respectfully disagree with their analysis. I believe the plaintiff failed to
meet her burden on at least one element of her prima facie case for the disability
discrimination claim and the retaliation claim. I would therefore have concluded
that she failed to establish a waiver of governmental immunity and that Parkland’s
plea to the jurisdiction should be granted. Because the majority holds otherwise, I
respectfully dissent.
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I. Disability Discrimination: Plaintiff Did Not Offer More than a Scintilla of
Evidence Proving that She Had a Disability
The majority opinion concluded that Kowalski created a fact issue on whether
she had a disability and whether Parkland regarded her as disabled. See TEX. LAB.
CODE § 21.002(6). For two reasons, I disagree with majority’s conclusion that she
had a disability or whether Parkland regarded her as disabled.
A. Kowalski Insisted She Was Not Disabled
Before the alleged adverse action occurred, Kowalski never told Parkland that
she was disabled, and she admits that she did not consider herself to be disabled.
She agrees that she did not make an ADA complaint and that she never used the
word “discrimination.” Her brief points out that she emailed her supervisor Ms.
Putz, “complaining that she is being treated as disabled when she is not.” She
provided Parkland with a form from her chiropractor who represented that the
provider had examined Kowalski and was familiar with her medical history. The
provider certified that Kowalski had no physical impairment recognized under the
ADA and stated multiple times that “limitations on major life activities” was not
applicable to Kowalski. Kowalski’s provider only stated that an
ergonomic/equipment accommodation would assist Kowalski and allow her to work
more comfortably. When the claims administrator’s HIPAA authorization form
asked Kowalski to list the reasons for her disclosure of protected health information,
she did not check the box for “In connection with a request for an absence from work
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or accommodation from work.” Instead, she hand-wrote “To comply with
employer’s request for ergonomic evaluation” and marked that option. At the time,
Kowalski repeatedly stated that she did not believe that a disability existed or that
the evaluation process was happening because she was actually disabled. She
resisted any inference by Parkland that she was disabled, and consistently
complained about an overly bureaucratic evaluation process.
Kowalski has still not provided evidence that she had a mental or physical
impairment that substantially limited at least one major life activity. In Waldrip v.
General Electric Co., the Fifth Circuit held that:
The substantial-limit requirement is the linchpin of [the
definition of disability in the ADA]. Without it, the ADA
would cover any minor impairment that might tangentially
affect major life activities such as breathing, eating, or
walking. For this reason, an impairment must not just
limit or affect, but must substantially limit a major life
activity. The effects of an impairment must be severe to
qualify as a disability…
325 F.3d 652, 655 (5th Cir. 2003) (internal citations omitted). Kowalski has now
provided a declaration with conclusory statements that she had conditions that
limited major life activities, but she does not include facts showing that her
impairment had actually and substantially limited the major life activity on which
she relied. See id. at 656. Her declaration, for example, stated that she “almost”
could not drive to work. She has not demonstrated that she actually experienced a
severe impairment or substantial limit on a major life activity. The Waldrip court
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also affirmed summary judgment on regarded-as disability, emphasizing that, “in his
application for benefits, [the employee] denied being disabled.” Id. at 657.
Similarly, in Burns v. Snow, the Tenth Circuit upheld summary judgment on
disability because the employee’s “self-serving, contradictory” remarks to her fellow
employees about her condition were insufficient to create a fact issue, “especially
when considered together with: 1) her statement on the Self–Identification of
Handicap form that she had no disability; 2) an entry on her physical examination
form in which she indicated she no longer suffered from lupus;” and other evidence
that cut against regarded-as disability. 130 Fed. App’x 973, 982 (10th Cir. 2005).
In the instant case, Kowalski has also provided a self-serving declaration that
contradicts all of her contemporaneous statements and is equally insufficient to
create a fact issue.
Her insistence that she was not disabled also undermines a regarded-as
disability claim. For example, in Longway v. Myers Industries, Inc., the Second
Circuit affirmed summary judgment on regarded-as disability where the employee
never “characterized his condition as anything other than a one-time injury” and
instead “informed his supervisor that he was being released from the hospital with
‘no restrictions physically’ and could return to work the following day, . . . and [the
employee] never completed the short-term disability form that his supervisor sent
him.” 812 Fed. App’x 57, 59 (2d Cir. 2020). Many district court cases are to the
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same effect. See, e.g., Rafferty v. Keypoint Gov’t Sols., Inc., No. 4:16-CV-00210-
DCN, 2020 WL 7038952, at *23 (D. Idaho Nov. 30, 2020); Roebuck v. Am. Axle &
Mfg., Inc., No. 1:11-CV-1048, 2012 WL 6151988, at *4 (W.D. Mich. Dec. 11,
2012); Dismore v. Seaford Sch. Dist., 532 F. Supp. 2d 656, 664–65 (D. Del. 2008);
Wheelock v. Philip Morris, USA, No. CIV. A. 95-0999, 1997 WL 45292, at *7 (E.D.
La. Feb. 5, 1997).
Kowalski and her healthcare provider denied any disability, and, on these
facts, Parkland should have been entitled to take them at their word. Her later
conclusory declaration that she had a physical impairment that limited major life
activities is inconsistent with all of the information she provided to Parkland before
the employment decision was made and would not therefore have been able to form
a basis for it. From Kowalski’s perspective and from Parkland’s perspective, no
scintilla of evidence of disability existed when the employment decision was made.
B. Investigating Whether Kowalski Had a Disability Does not Prove that
Parkland Already Regarded Her as Disabled
The linchpin of Kowalski’s argument for regarded-as disability was that when
Parkland and its claims administrator processed her request for a keyboard tray using
disability-accommodation forms and language, Parkland revealed that it viewed her
as disabled. However, Kowalski agrees that Parkland treated her request of the
keyboard tray as a “workspace request” for accommodation, and that the appropriate
process at Parkland for all employees requesting a keyboard tray was to go through
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the ADA accommodation process. Kowalski does not contest that the policy existed,
although she complains that not every employee was subjected to the full process.
The majority concludes that Parkland regarded her as disabled almost solely
because Parkland internally used terms like “accommodation” and “disability” to
process Kowalski’s request for a keyboard tray. Parkland does seem to have an
onerous and bureaucratic process to evaluate whether workspace requests need to be
accommodated. But the fact that Parkland’s procedures route requests of this type
through a formal “accommodation” evaluation process is not evidence that it already
regarded each requestor as being disabled.
Federal cases have recognized as much. They have held that simply
processing employee workplace issues in a sensitive fashion, such as by using a form
labeled “disability accommodation” to process a request for work adjustments, does
not show the employer regarded the employee as disabled, particularly when the
employer’s policy is to send the form to wide swathes of their workforce without
regard to an employee’s unique circumstances. Thus, when one employer
“routinely” sent disability forms “to any employee who had been on short-term
disability for three months,” this did not suggest anything about the employer’s view
of the plaintiff. See Graham v. Boehringer Ingelheim Pharm., Inc., 451 F. Supp. 2d
360, 373 (D. Conn. 2006). Even actually placing an employee on short-term
disability does not demonstrate that the employer regarded the employee as disabled.
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Id. In another case, an employer’s broad use of a form that mentioned disability was
held to be “no evidence” that the employer “perceived her [the employee] as
impaired.” Vaughan v. World Changers Church Int’l, Inc., No. 1:13-CV-0746-AT,
2014 WL 4978439, at *11 (N.D. Ga. Sept. 16, 2014). And in still another case,
where the employer sent a form letter and an application for disability benefits to
any employee who went out on disability leave, this was no evidence that the
employer regarded the employee as legally disabled, especially when the criteria for
disability were the employer’s own and not those of the ADA. Greene v. United
Parcel Serv., Inc., 125 F. Supp. 2d 517, 523–24 (M.D. Ga. 2000). In this case, it is
undisputed that Kowalski never signaled the severity of her condition by going on
disability leave. Instead, she only requested a minor adjustment to her work
environment—a keyboard tray—and in response, Parkland followed its generally
applicable policies. This is not a case where the employer stereotyped its employee,
seeing her primarily as her disability or regarding her through the lens of her medical
condition. Cf. Ross v. Campbell Soup Co., 237 F.3d 701, 707 (6th Cir. 2001).
Parkland’s adherence to its accommodation evaluation policy does not prove
that it regarded everyone who made such a request as disabled. It puts the cart before
the horse to conclude that, by having a process to evaluate whether an employee is
disabled, the employer has already formed a belief that the employee is disabled—
especially where the employee repeatedly insisted she was not disabled.
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For all these reasons, I would conclude that Kowalski has not established a
waiver of immunity for her discrimination claim, because she failed to make a prima
facie case that includes more than a scintilla of evidence on the existence of a
disability.
II. Retaliation: Plaintiff Did Not Offer More than a Scintilla of Evidence
Proving that She Engaged in Protected Activity
I agree with the majority that there is no evidence that Kowalski made or filed
a charge, or that she testified, assisted, or participated in an investigation,
proceeding, or hearing. However, I believe she also failed to show the existence of
a fact issue on whether she opposed a discriminatory practice or filed a complaint.
See TEX. LAB. CODE § 21.055.
Kowalski consistently told Parkland she was not disabled, she was not
requesting an ADA accommodation, and she was frustrated at having to go through
what she perceived as an unnecessary disability accommodation process. Kowalski
has agreed that “I don’t believe I ever used the word discrimination.” Parkland could
not have been alerted that Kowalski was filing a complaint or opposing a practice of
disability discrimination when she expressly told them that she was doing neither.
See Tex. Dep’t of Transp. v. Lara, 625 S.W.3d 46, 60 (Tex. 2021).
For Kowalski’s retaliation claim, the majority focuses on the January 2018
emails where she complained to her supervisor Ms. Putz that she was treated
differently than Ms. Evans, another employee who had recently requested a
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keyboard tray. The crux of Kowalski’s protest was that Evans, who suffered from
“the same exact neck pain” according to Kowalski, received a keyboard tray without
going through the same bureaucratic hurdles. Kowalski’s brief cites cases where
discrimination can be shown by an employer’s departure from its policies. But here,
Kowalski is complaining that Parkland took her complaint too seriously and too-
closely adhered to its own policies. The evidence does not show that Kowalski
reasonably believed that the differences in Parkland’s handling of her case were
motivated by disability discrimination.
The majority notes that, to qualify as a complaint about or opposition to
disability discrimination under these circumstances, the complaint must concern
differential treatment that was motivated by Parkland regarding her as disabled. See
Alamo Heights Indep. Sch. Dist. v. Clark, 544 S.W.3d 755, 787 (Tex. 2018)
(discussing gender-motivated discrimination). The underlying discrimination claim
need not be substantiated to protect an employee against retaliation, but the
employee must reasonably believe in good faith that the conduct complained of was
discriminatory. Tex. Tech Univ. Health Scis. Ctr.—El Paso v. Flores, 657 S.W.3d
502, 510–11 (Tex. App.—El Paso 2022, pet. filed) (citing Byers v. Dall. Morning
News, Inc., 209 F.3d 419, 428 (5th Cir. 2000), and Vadie v. Miss. State Univ., 218
F.3d 365, 374 n.24 (5th Cir. 2000)). Kowalski admits, as she must, that her
complaint was based on Parkland’s treatment of a person with “the same exact”
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condition and the same request for a keyboard tray, who was dealt with fairly,
accommodated, and faced no negative treatment. Kowalski’s complaint to Putz was
not that she was treated differently from people without disabilities—an allegation
from which a belief of disability discrimination might reasonably follow. Rather,
she complains that she and Evans had the same perceived disability and received
different treatment. This fails to show how the different treatment was motivated by
discrimination regarding the possible disability that both Kowalski and Evans
shared.
Kowalski has expressed a variety of other complaints about her supervisor
Putz, including Putz’s lack of competence and Putz’s poor treatment of Kowalski in
other contexts. But, for example, complaining only of harassment or bullying is not
enough. Alamo Heights, 544 S.W.3d at 786–87 (Tex. 2018). There must be
evidence of anti-disability motivation. See id. Kowalski has not produced evidence
to show that Parkland became motivated by disability discrimination in only her own
case, when it welcomed an identical request just months earlier.
The majority opinion concludes that Kowalski’s January 2018 emails provide
more than a scintilla of evidence that Kowalski engaged in a protected activity. To
qualify as a protected activity and invoke the protections of Section 21.055, the
conduct relied on by the employee must, at a minimum, alert the employer to the
employee’s reasonable belief that unlawful discrimination is at issue. Lara, 625
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S.W.3d at 59; see also Democratic Sch. Rsch., Inc. v. Rock, 608 S.W.3d 290, 312
(Tex. App.—Houston [1st Dist.] 2020, no pet.); Exxon Mobil Corp. v. Rincones, 520
S.W.3d 572, 586 (Tex. 2017). Kowalski’s emails did not alert Parkland that
unlawful discrimination was at issue. Further, the evidence shows that Kowalski did
not believe, and could not have reasonably believed, that disability discrimination
was at issue. See also McNeel v. Citation Oil & Gas Corp., 526 S.W.3d 750, 763
(Tex. App.—Houston [14th Dist.] 2017, no pet.) (affirming summary judgment on
retaliation because “no reasonable person would believe” that the conduct
complained of violated the TCHRA); DeFrancesco v. Mem’l Villages Police Dep’t,
No. 01-17-00660-CV, 2019 WL 1388006, at *9 (Tex. App.—Houston [1st Dist.]
Mar. 28, 2019, no pet.) (mem. op.) (same).
Kowalski’s emails expressly stated that she “did not file an ADA complaint,”
that she “just need[s] an ergonomic evaluation,” and “[a]ll I want to try is a keyboard
tray.” Kowalski’s brief characterizes these emails to Putz as “alerting Parkland that
she did not want to be treated as having made an accommodation complaint.” Yet
Kowalski also maintains the opposite, now contending that she had a disability and
that these communications to Putz formed a disability discrimination complaint.
Effectively, Kowalski is arguing that the beliefs she herself expressed to Parkland in
January 2018 were unreasonable, and that she should be given credit for making a
complaint that she expressly disclaimed making within the supposed complaint
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itself. The Fourteenth Court of Appeals held that an internal complaint did not
constitute protected activity in light of a similar set of contradictions as those we
face here:
Nothing in Akorede’s internal complaint even hints that she believed
she was being discriminated against based on any protected trait, and
the Commission adduced uncontradicted evidence that Akorede
disclaimed any discrimination based on a protected class. Accordingly,
Akorede has not raised a genuine issue of material fact regarding the
internal complaint—it was not a protected activity for purposes of the
retaliation claim.
Akorede v. Tex. Workforce Comm’n, No. 14-18-00827-CV, 2020 WL 1778194, at
*3 (Tex. App.—Houston [14th Dist.] Apr. 7, 2020, no pet.) (mem. op.) (emphasis
added). I agree with this holding and would apply it here. If, as the majority notes,
“complaining only of . . . ‘discrimination,’ . . . is not enough” to constitute protected
activity, surely we must acknowledge the fact that Kowalski expressly stated she
was not even complaining of discrimination. In the absence of evidence to “link[]”
her complaints “with any allegation” of discriminatory conduct motivated by
disability, I would hold that Kowalski’s retaliation claim falls short for want of
protected activity. See Mayfield v. Tarrant Reg’l Water Dist., 467 S.W.3d 706, 714
(Tex. App.—El Paso 2015, no pet.).
III. Conclusion
I commend the majority for its thoughtful handling of this case, but I differ
with my colleagues in that I see no evidence of disability, regarded-as disability, or
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protected activity. Those gaps in the record preclude Kowalski from overcoming
Parkland’s immunity and are enough to dispose of all her claims. Because I conclude
that the trial court erred in denying Parkland’s plea to the jurisdiction, I would vacate
the orders in question and dismiss the case with prejudice. See Harris Cnty. v. Sykes,
136 S.W.3d 635, 639 (Tex. 2004).
/Emily Miskel/
EMILY MISKEL
JUSTICE
210379DF.P05
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