Texas Department of Criminal Justice v. Rita Tidwell

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
TEXAS DEPARTMENT OF CRIMINAL § No. 08-22-00130-CV
JUSTICE,
§ Appeal from the
Appellant,
§ 41ST Judicial District Court
v.
§ of El Paso County, Texas
RITA TIDWELL,
§ (TC# 2018dCV3019)
Appellee.
OPINION
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.
1
Quidachay reported that he assisted Tidwell with filling out the form at the hospital, while waiting for her husband
to arrive.
2
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
2
as recommended by her doctor.
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.
2
Light-duty assignments were handled “on a case-by-case basis” as warranted by the business necessity of TDCJ”
within the same unit or department.
3
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
3
TDCJ policy pertaining to its “workers’ compensation and return to work program” provides that an injured
employee may only be placed in a “temporary alternate or modified duty assignment” for a “maximum period of 12
consecutive workweeks per work-related injury or illness,” and that the time-period cannot be extended, even if the
employee “[e]xperiences additional absences due to [the] injury or illness.” The policy further provides that if “the
employee has not been certified by [her] health care provider to return to full duty,” the employee must be placed in
the “appropriate leave status in accordance with TDCJ leave policies,” or if applicable, be separated from her
employment.
4
On April 10, 2017, Tidwell’s orthopedic doctor recommended increasing restrictions on her, to which TDCJ agreed,
noting it on Tidwell’s Modified Duty Assignment Description.
5
An HR representative explained that TDCJ had a policy that employees could apply to another job but would not be
given any more or less consideration than other applicants.
4
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
6
As explained by a TDCJ employee, being administratively separated is not the same as being fired for cause and
does not have a negative connotation. Instead, it means the employee did not “meet a criteria,” such as being able to
return to work in full capacity after exhausting leave options.
5
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
7
Tidwell did not argue in her appellate brief that she suffered from a hostile work environment after she filed her
workers’ compensation claim. See ERI Consulting Engineers, Inc. v. Swinnea, 318 S.W.3d 867, 880–81 (Tex. 2010)
(to preserve error on appeal, the Texas Rules of Appellate Procedure require adequate briefing, which includes making
a clear and concise argument for the contentions made with appropriate citations to authorities and to the record)
(citing TEX. R. APP. P. 38.1(i)). Accordingly, we do not address it in this opinion.
6
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 entirety. This interlocutory appeal ensued.
II. ISSUES ON APPEAL
In a single issue, TDCJ contends that the trial court erred by denying its plea to the
jurisdiction, arguing Tidwell failed to come forward with sufficient jurisdictional evidence to raise
a question of fact on her retaliation claim and therefore did not establish that the agency waived
its immunity.
III. STANDARD OF REVIEW AND APPLICABLE LAW
A. Pleas to the jurisdiction and the State’s immunity
In Texas, governmental units, like TDCJ, enjoy sovereign immunity from lawsuits except
where the Legislature waives immunity. See Tex. Dep’t of Parks & Wildlife v. Miranda, 133
S.W.3d 217, 224 (Tex. 2004); see also Flores v. Tex. Dep’t of Criminal Justice, 634 S.W.3d 440,
450 (Tex. App.—El Paso 2021, no pet.) (citing Tex. Parks & Wildlife Dep’t v. Sawyer Trust, 354
S.W.3d 384, 388 (Tex. 2011)). Sovereign immunity deprives a trial court of subject-matter
jurisdiction. Mission Consol. Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629, 636 (Tex. 2012). The
Legislature has provided a limited waiver of immunity for claims brought against governmental
units alleging violations of Chapter 451 of the Texas Labor Code, which prohibits an employer
from retaliating against an employee for filing a workers’ compensation claim. See Tex. Dep’t of
Motor Vehicles v. Bustillos, 630 S.W.3d 316, 328 (Tex. App.—El Paso 2021, no pet.) (citing
7
Kerrville State Hosp. v. Fernandez, 28 S.W.3d 1, 2 (Tex. 2000) (recognizing that a Chapter 451
cause of action applies against a state agency employer as it does against a private employer); see
also TEX. LAB. CODE ANN. § 451.001(1) (“A person may not discharge or in any other manner
discriminate against an employee because that employee has . . . filed a workers’ compensation
claim in good faith.”). However, the waiver extends only to suits in which the pleadings state a
prima facie claim for an actual violation. See Bustillos, 630 S.W.3d at 330; see also Tex. Dep’t of
Criminal Justice v. Flores, 555 S.W.3d 656, 661 (Tex. App.—El Paso 2018, no pet.) (citing
Mission Consol., 372 S.W.3d at 636) (discussing waivers of immunity under the Texas Human
Rights Act). If the plaintiff fails to state a prima facie case of a Chapter 451 violation, the
governmental unit retains its immunity from suit. Bustillos, 630 S.W.3d at 330 (citing Mission
Consol., 372 S.W.3d at 636).
Here, the TDCJ may properly assert immunity from suit through a plea to the jurisdiction
or motion for summary judgment. Id. at 325-26 (citing Texas Dep’t of Transportation v. Jones, 8
S.W.3d 636, 637 (Tex. 1999) (per curiam); NME Hosps., Inc. v. Rennels, 994 S.W.2d 142, 144
(Tex. 1999)). “We review a trial court’s ruling on a plea to the jurisdiction de novo.” Id. at 326
(citing Miranda, 133 S.W.3d at 228). In a plea to the jurisdiction, a party may challenge either the
pleadings or the existence of jurisdictional facts, or both. Id. at 326–27. When, as here, a plea
challenges the existence of jurisdictional facts, we consider the relevant evidence submitted by the
parties to determine if a fact issue exists on the question of whether the plaintiff has set forth a
prima facie case in support of her claim. Id. (citing Miranda, 133 S.W.3d at 227); see also Tex.
Dep’t of Transp. v. Lara, 625 S.W.3d 46, 52 (Tex. 2021) (when a defendant challenges the
existence of jurisdictional facts with supporting evidence, the court must move beyond the
8
pleadings and consider the proffered evidence) (citing Alamo Heights Indep. Sch. Dist. v. Clark,
544 S.W.3d 755, 770 (Tex. 2018)).
In such cases, “this standard generally mirrors that of a summary judgment under Texas
Rule of Civil Procedure 166a(c).” Bustillos, 630 S.W.3d at 326 (quoting Miranda, 133 S.W. 3d at
228). Under this standard, if the governmental unit asserts and supports with evidence its
contention that the trial court lacks subject-matter jurisdiction, we simply require the plaintiffs,
when the facts underlying the merits and subject-matter jurisdiction are intertwined, to show that
there is a disputed material fact regarding the jurisdictional issue. Id. In determining whether a
material fact issue exists, we examine the evidence presented by both parties, and we take as true
all evidence favorable to the plaintiff, to include indulging every reasonable inference and
resolving any doubts in favor of the plaintiff. Id. In doing so, however, we cannot disregard
evidence necessary to show context, and we cannot disregard evidence and inferences unfavorable
to the plaintiff if reasonable jurors could not. Alamo Heights, 544 S.W.3d at 771 (citing City of
Keller v. Wilson, 168 S.W.3d 802, 811–12, 822–23, 827 (Tex. 2005)).
B. Labor code Chapter 451 and Tidwell’s prima facie case
To overcome a plea to the jurisdiction or motion for summary judgment, Tidwell has the
burden of making prima facie showing that she filed a workers’ compensation claim in good faith
and there is a causal link between her filing the claim and TDCJ discharging her. See Bustillos,
630 S.W.3d at 330 (citing TEX. LAB. CODE Ann. § 451.001(1) (“A person may not discharge or in
any other manner discriminate against an employee because the employee has . . . filed a workers’
compensation claim in good faith.”); Cardenas v. Bilfinger TEPSCO, Inc., 527 S.W.3d 391, 399
(Tex. App.—Houston [1st Dist.] 2017, no pet.)). To establish a causal connection between her
firing and filing her workers’ compensation claim, Tidwell is not required to show that filing the
9
claim was the sole cause of TDCJ terminating her; instead, she must demonstrate that but for filing
the claim, the termination “would not have occurred when it did.” Id. (citing Kingsaire, Inc. v.
Melendez, 477 S.W.3d 309, 319 (Tex. 2015); Cont’l Coffee Products Co. v. Cazarez, 937 S.W.2d
444, 451 (Tex. 1996); Hernandez v. Am. Tel. & Tel. Co., 198 S.W.3d 288, 291 (Tex. App.— El
Paso 2006, no pet.)).
“This causal connection may be established by either direct or circumstantial evidence.”
Bustillos, 630 S.W.3d at 330 (citing Kingsaire, 477 S.W.3d at 312; Hernandez, 198 S.W.3d at
291); see also Echostar Satellite L.L.C. v. Aguilar, 394 S.W.3d 276, 287 (Tex. App.—El Paso
2012, pet. denied). The Supreme Court has identified several factors that a court may consider as
circumstantial evidence of a causal link. See Bustillos, at 330 (citing Cont’l Coffee, 937 S.W.2d at
451). These factors are: “(1) knowledge of the compensation claim by those making the decision
on termination; (2) expression of a negative attitude toward the employee's injured condition; (3)
failure to adhere to established company policies; (4) discriminatory treatment in comparison to
similarly situated employees; and (5) evidence that the stated reason for the discharge was false.”
(collectively, the Continental Coffee factors). Id. (citing Cont’l Coffee, 937 S.W.2d at 451). 8
However, terminating an employee as required by a uniformly enforced, reasonable
absence-control policy does not constitute retaliatory discharge; in that situation, circumstantial
evidence that could otherwise support a causal link is immaterial. See Tex. Dep’t of Family &
Protective Services v. Parra, 503 S.W.3d 646, 666 (Tex. App.—El Paso 2016, pet. denied) (citing
Kingsaire, 477 S.W.3d at 312; Cont’l Coffee, 937 S.W.2d at 451). In Kingsaire, the court held an
employer not liable for retaliation where Kingsaire uniformly enforced its policy by terminating
8
In addition, courts may consider temporal proximity between the date of injury and the termination in evaluating
evidence of a causal link, but that was not argued in the present case. Tex. Dep't of Motor Vehicles v. Bustillos, 630
S.W.3d 316, 330 (Tex. App.—El Paso 2021, no pet.) (citing Echostar Satellite L.L.C., 394 S.W.3d at 288).
10
employees who did not return to work immediately after their FMLA leave expired. Kingsaire,
477 S.W.3d at 316. Similarly, in Haggar, the court held that an employer was not liable where it
terminated an employee pursuant to a one-year absence-control policy where there was evidence
that the employer “failed to officially discharge one employee who had been on leave for over a
year” but did not pay her. Haggar Clothing Co. v. Hernandez, 164 S.W.3d 386, 389 (Tex. 2005).
The court reasoned that treating the one employee in this manner did “not amount to more than a
scintilla of evidence that the policy was not uniformly enforced or that Haggar’s explanation for
firing [the employee] was false” in the absence of circumstantial evidence of discriminatory
application of the absence-control policy or evidence that Haggar’s explanation for the termination
was false. Id at 389; see also Texas Div.-Tranter, Inc. v. Carrozza, 876 S.W.2d 312, 313-14
(Tex. 1994) (per curiam) (employee did not have a valid anti-retaliation case where he offered no
evidence to controvert employer’s explanation that he was terminated solely for violating a
uniformly enforced collective bargaining agreement three-day absence rule).
On the other hand, as we recognized in Parra, if the employer’s absence-control policy
gives it the discretion not to terminate an employee who has violated the policy, it cannot be
considered the type of mandatory absence-control policy that will protect an employer from a
retaliation claim. See Parra, 503 S.W.3d at 667 (provision in employer’s policies cannot be
considered a mandatory absence-control policy because it unambiguously provided the employer
with the discretion not to terminate an employee who had exhausted her FMLA leave).
IV. TDCJ’S MANDATORY ABSENCE-CONTROL POLICY
Here, TDCJ contends Tidwell’s termination was required by TDCJ’s mandatory, uniformly
enforced absence-control policy after she exhausted all of her leave options. Tidwell contends the
agency’s leave policies are not, and cannot be, uniformly enforced in part due to the fact that TDCJ
11
offers employees different options regarding how they may use their leave when they are injured
on the job, which results in an unequal application of its leave policies depending on the
employee’s election and situation.
The first election, which Tidwell chose, requires an injured employee to use all of her
accrued sick leave and vacation leave before receiving workers’ compensation payments, in which
case the employee is paid at her normal pay rate by the agency until she runs out her leave time.
Under this election, once the employee’s leave entitlements are exhausted, the employee is then
placed on LWOP-Medical status for a maximum period of 180 days 9 (and if eligible, may receive
workers’ compensation benefits). As TDCJ manager Amanda Flinn explained, and as reflected in
TDCJ’s written policies, the leave period cannot be extended for any reason (unless the employee
is eligible for FMLA or LWOP military by law). 10 Under this policy, if the employee is not
released to full-duty status at the expiration of her 180-day LWOP period, the agency must
administratively separate her. 11
Tidwell points out that under that second and third options, the employee may freeze either
all or a portion of her accrued vacation time; therefore, unlike with the first option, the employee
selecting the second or third option is not required to exhaust her vacation time before being placed
on LWOP status. 12 TDCJ’s leave policy expressly distinguishes between the options, providing
“[a]ll of an employee’s accrued leave balances and administrative leave shall be exhausted before
9
TDCJ medical and parental leave policy expressly states that the “maximum period an employee can request [to be
on] LWOP-Medical [is] 180 calendar days.”
10
Tidwell did not claim to be eligible for FMLA leave or LWOP military.
11
TDCJ leave policy states that: “[a]n employee shall be separated upon exhaustion of LWOP-Medical (emphasis
added).”
12
But the employee is required to first exhaust her sick leave.
12
an employee is eligible to use LWOP-Medical, unless the employee is on workers’ compensation
and has frozen part or all of the employee’s accrued leave.” Moreover, unlike the employee opting
for the first election who must exhaust all of her leave before receiving workers’ compensation
payments, the employee opting for the second or third option may start receiving workers’
compensation payments after a seven-day waiting period. In addition, unlike the employee opting
for the first election, this employee is not eligible to apply for extended sick leave or the sick leave
pool to receive any donated sick leave. When this employee has exhausted her sick leave and is
unable to return to work, she may then be placed on LWOP for 180 days; however, if she is not
fully released to return to work after the LWOP period expires, she will then be placed on the
active payroll for purposes of exhausting her previously frozen vacation time. If she is still not
released to full-duty after her vacation is expired, the agency must administratively separate her
from her employment.
Accordingly, Tidwell is correct that there are differences in how the two sets of employees
are treated—at least in terms of the type of sick leave for which they may be eligible. Regardless
of which election the employee makes (and which order she exhausts her leave entitlements), under
its absence control policies, TDCJ must terminate an employee who has exhausted all of her leave
entitlements and is unable to return to work on full-duty status. There is no evidence of any instance
in which TDCJ has deviated from this policy or any employees who were not terminated after their
leave entitlements expired. 13
13
In her briefing, Tidwell refers to another employee she believes was treated more favorably than her in terms of the
type of modified job assignment she was given—an issue we discuss in more detail below. However, Tidwell does
not allege that TDCJ did not follow its absence-control policy with respect to this employee.
13
V. CAUSAL LINK ANALYSIS: CONTINENTAL COFFEE FACTORS
Even if we were to assume TDCJ did not uniformly enforce its leave policy due to the
differences in sick leave access, Tidwell has not come forward with sufficient circumstantial
evidence to support an inference that there is a causal connection between the filing of her workers
compensation claim and her termination, as required by Continental Coffee. While there is not a
single dispositive Continental Coffee factor, to meet her burden, Tidwell “must produce ‘sufficient
circumstantial evidence on a majority of these factors.’” See Parra, 503 S.W.3d at 665 (citing
Armendariz v. Redcats USA, L.P., 390 S.W.3d 463, 469 (Tex. App.—El Paso 2012, no pet.)
Regarding the first factor, TDCJ tacitly admits that it knew about Tidwell’s workers’ compensation
claim filing at the time of her termination. We turn to examine the remaining factors next.
A. Evidence that TDCJ had a negative attitude toward Tidwell’s injuries
Tidwell contends that TDCJ exhibited a negative attitude toward her injuries in six ways.
1. Tidwell’s initial injury report and her workers’ compensation election
First, Tidwell argues TDCJ minimized her injuries in its initial injury report by only
referring to her sprained ankle and not to the other injuries she suffered. Pursuant to TDCJ policy,
Tidwell was responsible for filling out that report, and Tidwell approved and signed the report
listing only her sprained ankle. In addition, the record reflects that after receiving Tidwell’s
doctor’s reports, TDCJ acknowledged that she had suffered additional injuries and never
challenged the corresponding work restrictions her doctors placed on her.
14
Tidwell also complains that Quidachay rushed her into making an election on the workers’
compensation form, in essence pushing her into making the first election, and signing the injury
report rather than giving her time to determine which of the elections would be best. 14
2. Quidachay’s presence in Tidwell’s hospital room
Second, Tidwell contends that Quidachay was in her hospital exam room without a HIPAA
release in violation of HIPAA and without her consent in an attempt to exhibit power over her.
Tidwell did not indicate that she had any objections or concerns about him being present, and it
appears that she willingly allowed him to transport her to the hospital and wait with her until her
husband arrived. We note, however, that Quidachay testified without contradiction that he was not
in Tidwell’s exam room while her doctors were treating her. There is nothing in the record to
indicate that Quidachay disclosed any of her personal information to a third party. See generally
45 C.F.R. § 164.502 (a) (providing that a “covered entity or business associate may not use or
disclose protected health information,” except as otherwise permitted by law).
3. The nature of Tidwell’s modified-duty assignment
Third, Tidwell complains about her modified-duty assignment, contending that TDCJ
“worked [her] against her restrictions” by requiring her to shelve items in the storage room during
her modified/light-duty assignment. Tidwell explained that she was assigned typing and answering
phones (according to the light-duty offer) and was provided an officer-in-training to assist her with
tasks she was restricted from performing. Tidwell indicated that she violated the work restrictions
when her assistant was called away to other duties or otherwise absent because she felt pressured
14
We note that an employee is entitled to request a change to her election at a later date; there is nothing to indicate
that Tidwell made any attempt to change her election at any point.
15
to get the work done. 15 Tidwell stated that her requests to her immediate supervisor for help when
the officer-in-training was not present were not met due to short-staffing. She did not complain to
anyone above her immediate supervisor about this or wait for the assistant to complete tasks.
Assistant Warden Amonett indicated that he had no knowledge of any problems with the
way she was performing those duties or whether she was being worked against her restrictions. He
further articulated that “[s]he was not allowed to do anything outside her restrictions that the doctor
gave her” regardless of where she was assigned. Warden Parker echoed the same sentiment: “We
place them in an area [] where they have the opportunity to work inside of their restrictions. But .
. . it’s the employee’s responsibility to ensure they are not working outside of those restrictions.
And if the departmental supervisor in which they are working for requests them to do that, then
they should tell the supervisor, [t]hat’s not within my work restrictions.” And he explained the
employee should go all the way up the chain of command to complain if their supervisors
disregarded the issue. HR Representative Rivas also reiterated that it’s “their responsibility not to
work against their restrictions” and that she would “make sure the employee understood what their
restrictions were.”
4. Requiring Tidwell to use the stairs to reach her office
Fourth, Tidwell complains that TDCJ required her to use a certain entrance to the jail,
which required her to be exposed to inmates and use the stairs, thereby violating her doctor’s
restrictions. Tidwell explains that she was called into Assistant Warden Amonett’s office because
15
While she was on light-duty, the site was preparing for a credentialing inspection, and Tidwell was time-pressured
to complete her portions of the requirements. She also stated “I ended up doing what I needed to do to get my job done
because if things got delayed, then I was called in to Warden Amonett’s office or Warden Parker’s office to talk to
me about how paperwork wasn’t getting done . . . in a timely fashion.” Tidwell reported that she was held to the same
standards as before regarding her reporting—as to one monthly report that was late by a day and a half, Warden Parker
told her she “needed to make sure things got done appropriately so supply could run the way it should be.” Tidwell
told him she would “do [her] best.” Tidwell was never disciplined while on light-duty.
16
she was using the stairs instead of the ramp. Tidwell told both him and Warden Parker that she
was “not going to go up that ramp. . . . That is where they dump the used oil. . . . And I had a
plastic base on the bottom of my boot; and going up that ramp, it’s slippery.” Tidwell told them
there were only four stairs so she would go up the stairs slowly one at a time instead of using the
ramp; after she told him “[n]o” to the ramp, Amonett reportedly told her “Well, then, just be
careful.” Tidwell further explained in her deposition “It would have been easier if I could have
went [sic] through the commissary, . . . and then I wouldn’t have had to go [up] any step or ramp.
But the policy is that if you don’t work in the commissary, you’re not going in the commissary
unless you’re a correctional officer. So I could not go through the commissary.”
5. The instructional letter
Fifth, Tidwell contends that despite Captain Perez and Assistant Warden Amonett being
aware of her routine use of the ladder in this way due to her height and inability to reach the highest
shelves, due to the tight space in the uniform room, and despite having requested and been denied
a different ladder in 2016 when she asked, TDCJ issued a letter of instruction faulting her for her
injuries. It indicated she had used the ladder incorrectly and that this incorrect usage of the ladder
16
was the cause of her injuries. Assistant Warden Amonett stated in his deposition that he had
“never seen her use the ladder incorrectly before, or correctly.” In response to the question “[d]id
you ask any supervisor, any co-workers, if they had seen her use that ladder in that specific manner
16
Following her accident, several TDCJ employees conducted a routine investigation into the cause of her accident
then sent Tidwell a “letter of instruction” dated May 5, 2017, informing her that she had not been using “appropriate
climbing techniques” at the time of her accident. According to the letter, the accident could have been prevented if
Tidwell had used proper safety procedures by facing the step ladder toward the shelving where she had been working.
Quidachay, who helped investigate the ladder use acknowledged that the ladder training documents indicate that there
might be instances in which it would be safer to use the ladder sideways, such as in a retail stock room and space
constraints in narrow areas. He was not aware of whether Tidwell could reach the top shelf with the ladder at issue or
whether she had other ladders available to her. The investigation did not include questions about her normal practices
with the ladder.
17
in the past?” Assistant Warden Amonett, who assisted in the investigation, stated “No. They
receive safety training on appropriate climbing. I didn’t interview—there was nobody else that
witnessed it.” Amonett was on the Incident Review Board and initially recommended formal
discipline for the manner in which Tidwell used the ladder, but his superior, Warden Parker,
reduced it to a letter of instruction.
The resulting instructional letter states it is “designed to create a positive change in
employee behavior.” Tidwell indicated that she was not disciplined for the way she used the ladder
nor disciplined in connection with the letter.
6. Alleged failure to accommodate
Sixth and finally, Tidwell contends TDCJ failed to accommodate her by not offering her a
second modified job after her first modified job assignment ended. TDCJ’s policies expressly state
that it is required to offer an injured employee a twelve-week modified job assignment, and if the
employee is not able to return to work on full duty after that time, she must be placed on the
appropriate leave status. There is an accommodation policy that provides for TDCJ to offer a
modified job assignment where an employee with a permanent disability requests a reasonable
accommodation under the ADA, which Tidwell indicates she did not do.
The only other way to move to another position, according to TDCJ HR representative
Amanda Flinn, is if the employee formally applies for the position and goes through the selection
process, then each of the candidates meeting the minimum qualifications for the position gets an
interview; Flinn explained “[t]here’s is no deviation from that.” Tidwell explains that she wanted
to transfer to a secretarial position even before her leave time was exhausted and asked but was
told that she would not get the job because the pay was too low, so she never applied.
18
Although we acknowledge the points Tidwell raises, she has not explained how the
evidence above, taking her statements as true, constituted a negative attitude on the part of TDCJ
toward her injuries. And as to the instructional letter, the Texas Supreme Court has recognized that
an employer is entitled to investigate the cause of an accident and that doing so does not support
an inference that an employer harbored a retaliatory intent in subsequently terminating an
employee. Cont’l Coffee, 937 S.W.2d at 452.
B. Evidence that TDCJ treated similarly situated employees differently
Tidwell next argues that TDCJ treated similarly situated employees differently, which
constitutes circumstantial evidence that she was discriminated against based on filing her workers’
compensation claim. In support of her argument, Tidwell claims that an injured officer was given
a modified job assignment allowing her to work in the mailroom while TDCJ denied Tidwell’s
request to be given the same assignment. As TDCJ points out, however, Tidwell was not similarly
situated to the officer, as they performed entirely different jobs and had entirely different
responsibilities and supervisors. See Tex. Tech Univ. Health Scis. Ctr.-El Paso v. Flores, 612
S.W.3d 299, 312 (Tex. 2020) (recognizing that employees are similarly situated “if their
circumstances are comparable in all material respects, including similar standards, supervisors,
and conduct,” and they are not similarly situated if they “hold different jobs.”). Moreover, there is
no evidence the officer filed a workers’ compensation claim or that she was placed on LWOP and
was thereafter treated more favorably than Tidwell. See Bustillos, 630 S.W.3d at 336 (recognizing
that to be similarly situated for purposes of a workers’ compensation retaliation case, the other
employee must have also filed a workers’ compensation claim).
19
C. Evidence TDCJ failed to follow its policies
Tidwell also claims that TDCJ failed to follow its own policies after she was injured with
respect to both her modified job assignment and her termination. Tidwell claims that TDCJ did
not follow its policies when she was on modified light duty, as she was required to access her
office through a gate into an inmate area where metal was prohibited. Tidwell explained that the
walking boot prescribed by her doctor had metal in it, and working with inmates while having
metal on her caused her distress and anxiety. 17
We are unable to connect the fact that TDCJ may have required Tidwell to enter a restricted
area while wearing her boot with metal components in violation of a safety policy to the question
of whether she was terminated against TDCJ policies. See generally Bustillos, 630 S.W.3d at
335– 36 (the dispositive issue is “not whether an employer ever engaged in any activity against
their own policies; rather, we must ask whether an employer terminated an employee against its
own policies.”). Tidwell has presented no evidence to support her claim that she was terminated
against TDCJ policies.
D. Evidence that stated reason for discharge was false
In the last of the Continental Coffee factors, Tidwell seeks to establish that TDCJ’s stated
reason for terminating her, i.e., that she exhausted her leave options, was pretextual, contending
TDCJ provided different and conflicting reasons for her termination. As a preliminary matter, we
recognize that an employer providing conflicting reasons for terminating an employee can be
17
Tidwell complained that she was exposed to inmates regardless of whether she used the stairs or ramp, which she
contended was not appropriate for light-duty work, especially since she could not use her pepper spray with her injured
hand. HR representative Rivas explained that since Tidwell’s job was behind the gate and she received hazard pay,
exposure to inmates was part of her job regardless of the light-duty position at the time, and she could have chosen
not to take the light-duty offer. Rivas stated in her deposition she was not aware of any TDCJ policy whereby injured
employees on light-duty should not be exposed to inmates.
20
considered circumstantial evidence giving rise to an inference of pretext. See Univ. of Tex. Sw.
Med. Ctr. v. Vitetta, No. 05-19-00105-CV, 2020 WL 5757393, at *21 (Tex. App.—Dallas Sept.
28, 2020, no pet.) (mem. op.) (“Doubt in the employer’s asserted reason can be established in a
number of ways, including by proof that the employer provided shifting or different reasons for its
action at different times.”) (citing Caldwell v. KHOU-TV, 850 F.3d 237, 242 (5th Cir. 2017)
(“employer’s inconsistent explanations for an employment decision ‘cast doubt’ on the
truthfulness of those explanations”)). However, here we find no conflict in the reasons that TDCJ
provided for Tidwell’s termination.
The record reflects that TDCJ maintained it released Tidwell from her employment after
she exhausted all of her leave options in both its termination paperwork and in its responses to the
Texas Workforce Commission (TWC) when Tidwell applied for unemployment benefits. Tidwell,
however, contends that TDCJ stated in the TWC paperwork that she quit instead of being
administratively separated. This statement was not made by TDCJ, but instead by TWC, which
found Tidwell was entitled to unemployment benefits because she had “quit [her] job because of
[her] medically verifiable illness.”
Tidwell next contends TDCJ gave a third reason for terminating her in a letter that a TDCJ
employee wrote on January 8, 2018, regarding Tidwell’s separation in a “comments section”:
“Employee did not return to work alternate/modified duty on 1/2/2018, as previously reported.”
The letter referenced appears to be a printout of form “SORM90–Notification of Additional
Information” relating to Tidwell’s case. We are unable to ascertain the context in which the
comment was made, and Tidwell acknowledges there is nothing in the record to suggest TDCJ
gave her a second job offer or that TDCJ was even permitted to extend such an offer.
21
Finally, Tidwell contends that TDCJ’s reason for terminating her was pretextual, as the
notice placing her on LWOP asked her to return any property that TDCJ had issued to her
(including any uniforms, badges, ID cards and weapons), which reflected TDCJ’s intent to
terminate her upon placing her on LWOP. The notice, however, clearly stated that the requirement
of returning property did not mean Tidwell was being “separated from employment” and only
meant that she was “clearing [her] property account until such time that [she was] able to return to
work.” The Texas Supreme Court has indicated that requiring an employee to return property while
on extended leave status in accordance with the employer’s policies does not raise an inference
that the employee was terminated at that time. See Kingsaire, Inc., 477 S.W.3d at 316–17
(rejecting employee’s argument that requiring him to return his uniforms and other property
belonging to employer while on FMLA was the equivalent of a termination). We do not view the
requirement that Tidwell return TDCJ property while on extended leave as raising an inference
that TDCJ’s reasons for terminating her were pretextual. Id. at 317 (finding employer’s
requirement that employee return his uniforms while on FMLA constituted “meager circumstantial
evidence” that “could give rise to any number of inferences, none more probable than another.”)
(quoting Hancock v. Variyam, 400 S.W.3d 59, 70 (Tex. 2013)).
In sum, we conclude that Tidwell has failed to raise a question of fact on whether TDCJ’s
stated reason for terminating her based on its absence-control policy was pretextual in nature.
VI. NO EVIDENCE OF OTHER ADVERSE EMPLOYMENT ACTIONS
As a final matter, we note Tidwell’s argument that even if we find Tidwell was properly
terminated, we should nevertheless consider whether TDCJ discriminated against her prior to her
termination. However, one of the essential elements of an employment discrimination claim is that
the plaintiff must have suffered an adverse employment action, such as a termination or a failure
22
to hire, promote or compensate. See Esparza v. Univ. of Tex. at El Paso, 471 S.W.3d 903, 908-909
(Tex. App.—El Paso 2015, no pet.); see also Alamo Heights Indep. Sch. Dist. v. Clark, 544 S.W.3d
755, 764 (Tex. 2018) (holding that a “remedy only exists for retaliation when the evidence
establishes that a materially adverse employment action resulted from the employee’s protected
activities.”). Tidwell has not explained what adverse employment action was taken against her that
would support her discrimination claim short of termination. Tidwell received the same pay while
on her modified job assignment and did not receive any form of discipline during that time. 18
VII. CONCLUSION
Accordingly, for the reasons set forth above, we conclude that Tidwell failed to establish a
prima facie case of retaliation for filing her workers’ compensation claim and sustain TDCJ’s sole
issue. The trial court erred by denying TDCJ’s plea to the jurisdiction. We reverse the trial court’s
order and render judgment in TDCJ’s favor.
LISA J. SOTO, Justice
April 28, 2023
Before Rodriguez, C.J., Palafox, J. and Soto, J
18
We note that Tidwell testified to an incident in which she believed her supervisor was upset with her for failing to
turn in a budget report in a timely manner while she was on her modified job assignment, but she was not disciplined
for that incident.
23