The opinion
Supreme Court of Texas
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No. 23-0341
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Dallas County Hospital System d/b/a
Parkland Health and Hospital System,
Petitioner,
v.
Sheri Kowalski,
Respondent
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On Petition for Review from the
Court of Appeals for the Fifth District of Texas
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PER CURIAM
To prevail on a disability-based discrimination claim, a plaintiff
must show, among other things, that the discriminating party understood
the plaintiff to be disabled or at least that she claims a disability. Such
evidence is lacking here. Indeed, the record shows a consistent disclaimer
of disability by the plaintiff to her employer. Because the employer is a
governmental entity, the lack of a fact question means it was entitled to
dismissal based on its plea to the jurisdiction. We therefore reverse and
render a judgment of dismissal.
I
Sheri Kowalski served as director of finance at Parkland Hospital
from January 2016 until January 2018. At some time before December
2017, Kowalski began to experience neck and back pain while working
at her computer. After speaking with another Parkland employee who
had alleviated similar discomfort by requesting a new keyboard tray,
Kowalski decided to do the same. She emailed Parkland’s facilities
department to request new ergonomic keyboard and mouse trays and
adjustment of her computer monitors. Kowalski’s supervisor approved
these requests and forwarded them to Parkland’s human-resources
department, which is called the “office of talent management.”
Things did not go as Kowalski had hoped. She alleges that, while
her coworker received the requested accommodation without further
effort, the office of talent management treated Kowalski’s request
differently. Specifically, the office classified the request as a “reasonable
accommodation complaint,” thus triggering a distinct bureaucratic
procedure. It required Kowalski to have a “treating provider” fill out an
accommodation-request form, which she was then directed to forward to
a third-party company called CareWorks. Kowalski did all this under
protest. She expressed multiple times that she was not filing a disability-
related claim and was not disabled. Kowalski’s chiropractor, who filled
out the accommodation-request form, likewise expressed frustration at
the bureaucratic rigamarole; she modified the form in several places to
note that Kowalski needed only an “ergonomic assessment,” not a
disability accommodation. The form’s second question asked whether
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Kowalski had “a physical or mental impairment[] as recognized under
[the] ADA,” and the chiropractor answered “no.”
After CareWorks received the completed request form, Kowalski’s
long-sought ergonomic assessment took place in January 2018. Literally
minutes after it was completed, Kowalski was notified that her position
with Parkland had been eliminated. Parkland offered her the chance to
apply for a newly created position similar to her previous role, but
Kowalski rejected that offer and instead filed a complaint with the Equal
Employment Opportunity Commission. She subsequently sued Parkland
on the same theory she advanced before the EEOC—specifically, that
Parkland fired her because she was disabled, as well as in retaliation for
her earlier complaints about the accommodation process, and in so doing
had violated Chapter 21 of the Texas Labor Code.
Parkland filed a plea to the jurisdiction, arguing that Kowalski
failed to establish the prima facie elements for each of her claims. The
trial court denied the plea. Parkland appealed, and the court of appeals
affirmed. As relevant here, the court concluded that Parkland’s decision
to route Kowalski’s request through the accommodations process raised
a fact question as to whether Parkland regarded Kowalski as disabled.
It further held that Kowalski’s emails to Parkland’s management, which
complained that she was subjected to more bureaucratic requirements
than a similarly situated coworker, raised a fact question about whether
Kowalski had opposed a discriminatory practice prior to being fired.
Parkland petitioned for review.
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II
Chapter 21 of the Labor Code makes it unlawful for employers to
discharge employees “because of . . . disability.” TEX. LAB. CODE § 21.051.
Disability is defined as (1) “a mental or physical impairment that
substantially limits at least one major life activity”; (2) “a record of such
an impairment”; or (3) “being regarded as having such an impairment.”
Id. § 21.002(6). Thus, “to bring a disability-discrimination claim under
the [Labor Code], a plaintiff can assert that she actually had an
impairment and was discriminated against because of that impairment”
or that “her employer ‘regarded’ her as having an impairment” and
discriminated against her because of that perception. Tex. Tech Univ.
Health Scis. Ctr.–El Paso v. Niehay, 671 S.W.3d 929, 935 (Tex. 2023). The
Code further forbids retaliating against an employee who, among other
things, “opposes a discriminatory practice.” TEX. LAB. CODE § 21.055(1).
We understand Kowalski to assert both a straightforward
disability-discrimination claim and a “regarded as” claim, as well as a
claim for retaliation. Because Parkland is a state entity entitled to
sovereign immunity absent a waiver, it was Kowalski’s burden to
“provide[] evidence . . . sufficient to create a genuine fact issue material”
as to at least one of these allegations. Niehay, 671 S.W.3d at 935. We
hold that, because Kowalski failed to establish a fact issue on any of them,
Parkland’s plea should have been granted.
We first address the straightforward disability-discrimination
claim. Section 21.002(6) of the Labor Code requires Kowalski to show
that she suffered an “impairment that substantially limits at least one
major life activity.” Kowalski offers no proof of such an impairment
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beyond her testimony, recharacterizing her neck pain as “severe,”
“caus[ing] her difficulty when driving, typing at a computer for long
periods of time, turning her head or turning around, sleeping, and
focusing or concentrating.” But mere “difficulty” with everyday tasks is a
far cry from what the statute requires: a significant limitation of a major
life activity. TEX. LAB. CODE § 21.002(6).
Moreover, Kowalski does not allege now, and no evidence from her
time at Parkland indicates, that she was actually unable to complete (that
is, that she was in any way limited as to) any of the tasks or activities
that she describes. Quite the opposite: when Kowalski’s chiropractor was
asked whether Kowalski suffered from a limitation that met the above
criterion, she answered no. Kowalski had repeatedly made the same
point in emails to Parkland management.
Thus, even assuming that what Kowalski now alleges would rise
to the level of a disability, and even assuming that she is now telling the
truth about it, she cannot plausibly argue that Parkland discriminated
against her based on a disability that she and her chiropractor actively
denied and concealed from Parkland. Post-litigation descriptions of an
impairment where “there is no evidence that the [defendant] was aware
of” the alleged severity before taking the challenged action are irrelevant.
City of Houston v. Proler, 437 S.W.3d 529, 535 (Tex. 2014). Because
Kowalski cannot meet the “significant limitation” definition of disability,
her first disability-based discrimination claim fails.
The court of appeals held otherwise. It reasoned that, even though
Kowalski and her chiropractor both disclaimed a qualifying impairment
under the Code, the relevant form also showed that Kowalski “needed
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a[n] . . . accommodation . . . so that [she] could work more comfortably.”
___ S.W.3d ___, 2023 WL 2782312, at *7 (Tex. App.—Dallas Apr. 5, 2023).
In the court’s view, that constituted “more than a scintilla of evidence”
that she had a disability under the Labor Code. Ford Motor Co. v.
Ridgway, 135 S.W.3d 598, 600 (Tex. 2004).
We disagree. The crucial point is whether Kowalski suffered an
impairment that substantially limited at least one major life activity; no
fact issue arises as to that point on account of the potential for her to be
more comfortable at work. Allowing claims of mild discomfort to qualify
as disabilities would substantially lower a plaintiff’s burden below the
Labor Code’s requirements. Everyone could claim a disability if that
were true because everyone can be made more comfortable. The court
of appeals should have dismissed, rather than upheld, Kowalski’s first
discrimination claim.
We next turn to Kowalski’s regarded-as claim. Under Section
21.002(6)’s second clause, an employee who is discriminated against
because she is “regarded as having [] an impairment” may have a claim,
regardless of whether she is truly impaired. And under Section
21.002(12-a), regarded-as claimants “need not present evidence that the
[perceived] impairment ‘substantially limits at least one major life
activity.’ ” Niehay, 671 S.W.3d at 936 n.17 (quoting TEX. LAB. CODE
§ 21.002(12-a)). Thus, it was Kowalski’s burden to establish a fact issue
as to whether Parkland regarded her as impaired, whether or not she
truly was and whether or not that impairment substantially limited a
major life activity. Id. at 935.
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Kowalski failed to satisfy that burden. She repeatedly
complained to Parkland management when asked to complete the initial
accommodation request, protesting that she did not “file an ADA
complaint” and instead only wanted the “ergonomic evaluation” described
by her coworker. Kowalski’s chiropractor, we reiterate, likewise told
Parkland that Kowalski did not have a “physical or mental impairment[]”
when she submitted the relevant form. Once in litigation, Kowalski
changed her view and claimed to have suffered a disability all along,
crediting her attorneys for changing her understanding of the term, but
such post hoc repositioning could not have motivated Parkland’s prior
dismissal of Kowalski. Cf. Proler, 437 S.W.3d at 535. Numerous internal
communications were produced below, but none of them provide any
evidence that Parkland believed—contrary to what both Kowalski herself
and her chiropractor said—that she was disabled. Kowalski therefore has
failed to establish a fact issue on this point.
The court of appeals held otherwise. The court seemed to have
viewed the fact that Parkland asked Kowalski to “follow [its] policies for
reasonable accommodations under the ADA” as sufficient evidence to
show that Parkland regarded Kowalski as disabled. 2023 WL 2782312,
at *7. The reason that this holding was erroneous appears on the face
of the relevant policies and the form at issue. Under the policies, the
accommodation-request form sent to Kowalski’s chiropractor constitutes
the first step. That form begins by asking if Kowalski had “a physical
or mental impairment[] as recognized under ADA.” In other words,
Parkland’s accommodation policy expressly contemplates that the
participant may not be disabled—it is not limited to those who are
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disabled. The process would help Parkland determine if Kowalski was
disabled or not—but the court of appeals treated the process itself as
assuming a positive conclusion. Parkland’s plea to the jurisdiction should
have been granted as to Kowalski’s regarded-as claim.
Finally, we resolve Kowalski’s claim for retaliation. As relevant
here, the Labor Code protects employees from retaliation for either
“oppos[ing] a discriminatory practice” or “fil[ing] a complaint.” TEX. LAB.
CODE § 21.055(1), (3). Not just any complaint or opposition will do: under
either prong, Kowalski’s conduct “must have alerted [Parkland] to [her]
belief that disability discrimination was at issue.” Tex. Dep’t of Transp.
v. Lara, 625 S.W.3d 46, 60 (Tex. 2021). Thus, Parkland could not have
been put on notice under Section 21.055(1) or (3) if Kowalski did not
meaningfully allege some disparate treatment based on disability. Again,
Kowalski bore the burden to establish a fact issue on this point.
The only evidence Kowalski offered is a series of emails,
exchanged while she was undergoing the accommodation-request
process, complaining that another employee was not made to follow that
process. Since neither Kowalski nor this other employee was disabled,
the complaint seems to be that it was unfair for Kowalski to be singled
out for a disability-related screening procedure. The court of appeals held
that these emails “essentially claimed that she was being regarded as
disabled . . . and that she was being forced to go through a more extensive
process . . . than others who had similar medical issues.” 2023 WL
2782312, at *11.
Even if that characterization is accurate, however, differential
treatment between two employees, neither of whom is (or claims at the
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time to be) disabled, could not have put Parkland on notice that
“disability discrimination was at issue.” Lara, 625 S.W.3d at 60
(emphasis added). It may have appeared unfair, inconsistent, wasteful,
pointless, tedious, or irritating for Parkland to require Kowalski but not
her colleague to complete the form. Absent any showing that the different
treatment had anything to do with one party being disabled, though, the
emails are irrelevant to Kowalski’s retaliation claim. With no other
evidence that Parkland was made aware of a claim of disability-based
discrimination against Kowalski before her position’s elimination,
Kowalski failed to establish a fact issue on her retaliation claim.
Parkland’s plea to the jurisdiction should have been granted as to that
claim as well.
* * *
We hold that Kowalski has failed to make a prima facie case of
unlawful disability-based discrimination or retaliation under the Code.
Accordingly, without hearing oral argument, see TEX. R. APP. P. 59.1, we
grant Parkland’s petition for review, reverse the court of appeals’
judgment, and render judgment dismissing the case for lack of
jurisdiction.
OPINION DELIVERED: December 31, 2024
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