Austin State Hospital and Texas Department of Mental Health and Mental Retardation v. Laura Kitchen

kitchen

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-94-00390-CV

Austin State Hospital and Texas Department of

Mental Health & Mental Retardation, Appellants

v.

Laura Kitchen, Appellee

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 261ST JUDICIAL DISTRICT

NO. 91-11038, HONORABLE JOSEPH H. HART, JUDGE PRESIDING

Laura Kitchen sued and obtained a judgment against the Austin State Hospital

("ASH") and the Texas Department of Mental Health & Mental Retardation ("TDMHMR") for

employment discrimination based on failure to accommodate a disability. The district court

awarded Kitchen back pay, lost benefits, and attorney's fees and ordered Kitchen reinstated. ASH

and TDMHMR appeal, claiming that their objections and the jury's answers to questions in the

court's charge should have precluded the deemed findings necessary for Kitchen to recover on her

theory that appellants failed to reasonably accommodate her employment at ASH. We will reverse

the judgment of the trial court and remand the cause for new trial.

FACTUAL BACKGROUND

Kitchen was hired to work as a mental health aide in the Children and Adolescents

Psychiatric Services ("CAPS") division of ASH in December 1990. During the two-week

orientation preceding her initial assignment, Kitchen, who suffers from epilepsy, had a seizure

that disoriented her for several minutes. (1) Following her seizure, CAPS Administrator Eddie

McQueary gave Kitchen a "Physical Capacity Report" for her doctor to complete. The

neurologist who had treated Kitchen's epilepsy for ten years, Dr. Vincent Virgadamo, indicated

on the form that Kitchen was capable of the job activities listed on the report, (2) provided that

"seizure precautions" were taken. To clarify the meaning of "seizure precautions," McQueary

gave Kitchen a second physical capacity report for Virgadamo to complete. This second report

did not specifically request Virgadamo to explain the phrase "seizure precautions," but it did ask

him to verify that Kitchen could be alert 100 percent of the time.

After faxing the second report, Kitchen had a telephone conversation with her

father and Virgadamo in which Virgadamo expressed reservations about the report. He asked

Kitchen to have someone at ASH call him. On January 24, 1991, Kitchen relayed Virgadamo's

concerns to McQueary and authorized an ASH physician to contact Virgadamo. McQueary

testified that he gave Kitchen a deadline of January 25 at 3:00 p.m. for the return of the second

report. When the report was not returned by the deadline, McQueary sent Kitchen to ASH's

Assistant Superintendent, Adolph Supak, with the recommendation that she be terminated for

insubordination. Supak terminated Kitchen's employment that day.

There was conflicting testimony at trial about whether Kitchen had requested an

accommodation and the extent to which ASH accommodated employees by reassigning them to

other open positions within the organization. In addition to maintaining that Kitchen never

formally requested an accommodation, ASH asserted through McQueary that an accommodation

was not warranted unless Virgadamo refused to sign the second physical capacity report.

Alternatively, ASH argued that absent clarification from Virgadamo, it was unable to determine

what accommodation was necessary to render Kitchen "otherwise qualified" for the position and

whether such accommodation was reasonable.

STATUTORY FRAMEWORK

Kitchen brought her complaint pursuant to the former Texas Commission on

Human Rights Act (the "Act"), now found at chapter 21 of the Texas Labor Code. See Tex. Lab.

Code Ann. §§ 21.001 -.262 (West 1995). (3) Sections of the Act which form the basis for Kitchen's

suit provide:

§ 21.051 Discrimination by Employer

An employer commits an unlawful employment practice if because of race, color,

disability, religion, sex, national origin, or age the employer:

(1) fails or refuses to hire an individual, discharges an individual, or

discriminates in any other manner against an individual in connection

with compensation or the terms, conditions, or privileges of

employment . . . .

§ 21.105 Discrimination Based on Disability

A provision in this subchapter or Subchapter B referring to

discrimination because of disability or on the basis of disability

applies only to discrimination because of or on the basis of a physical

or mental condition that does not impair an individual's ability to

reasonably perform a job .

§ 21.260 Relief for Disabled Employee or Applicant

If the affected employee or applicant for employment has a disability,

a court shall consider the undue hardship defense , including the

reasonableness of the cost of necessary workplace accommodation

and the availability of alternatives or other appropriate relief.

Id. §§ 21.051, .105, .260 (emphasis added). Appellants initially protested that these sections of

the Act did not expressly provide that an employer's failure to make reasonable workplace

accommodation constituted an independent ground or theory of recovery for employment

discrimination. (4) The language and purpose of the Act persuade us, however, that a cause of

action based on an employer's failure to accommodate a disability was implied under the Act when

Kitchen filed suit.

The Act has among its express purposes: (1) "the execution of the policies of Title

VII of the Civil Rights Act of 1964"; (2) securing freedom from discrimination in employment

transactions "for persons in this state, including persons with disabilities"; and (3) the

development of the "full productive capacities of persons of this state." Id. §§ 21.001(1), (3), (4).

Because the Act seeks to promote federal civil rights policy and because Texas has little caselaw

interpreting the Act, this Court looks to analogous federal law when appropriate. Farrington v.

Sysco Food Servs., Inc. , 865 S.W.2d 247, 251 (Tex. App.--Houston [1st Dist.] 1993, writ denied);

City of Austin v. Gifford , 824 S.W.2d 735, 739 (Tex. App.--Austin 1992, no writ). The Texas Act

is broader than Title VII, which does not apply by its terms to disability or handicap

discrimination. See 42 U.S.C. §§ 2000e-2(a), 2000e-16(a) (1988) (prohibiting discriminatory

employment practices based on race, color, religion, sex, or national origin); Stroud v. Delta

Airlines, Inc. , 544 F.2d 892, 894 (5th Cir.), cert. denied , 434 U.S. 844 (1977) (Title VII does

not ban all discriminations, only those specifically enumerated). Instead, federal policy regarding

employment discrimination based on disability is found in the Rehabilitation Act of 1973, 29

U.S.C. §§ 701 -797b (1988 & Supp. V 1993), and the Americans with Disabilities Act (the

"ADA"), 42 U.S.C. §§ 12101-12213 (Supp. V 1993). Consequently, we look to the most closely

analogous provisions of these laws in interpreting our state's Act with regard to disability

discrimination. (5)

Our review of the relevant federal statutes convinces us that the jurisprudence

developed under section 504 of the Rehabilitation Act is most applicable to Kitchen's case. See

29 U.S.C. § 794 (1988 & Supp. V 1993). (6) Section 504 provides in pertinent part: "No otherwise

qualified individual with a disability . . . shall, solely by reason of her or his disability, be

excluded from participation in, be denied the benefits of, or be subjected to discrimination in . .

. any [federally funded] program or activity . . . ." Id. § 794(a) (1988). Sections 21.051 and

21.105 of the Texas Act make it an unlawful employment practice for an employer to discharge

a disabled person on the basis of a disability when the disability does not impair the individual's

ability to reasonably perform a job. Tex. Lab. Code Ann. §§ 21.051 , .105 (West 1995).

Facially, the Act more closely resembles section 504's broad prohibition against discrimination

than the prohibitions of other federal statutes that explicitly address an employer's failure to

accommodate. For example, the ADA includes provisions regarding "reasonable

accommodation," which resemble the Texas Act after its amendment in 1993, but do not parallel

as closely the wording of the Texas statute that governed Kitchen's cause of action. (7) However,

even section 504 incorporates the question of reasonable accommodation as part of the inquiry into

whether an individual is "otherwise qualified." School Bd. of Nassau County v. Arline , 480 U.S.

273, 288 (1987); Gilbert v. Frank , 949 F.2d 637, 642 (2d Cir. 1991). We agree with the Fifth

Circuit that the Texas Act's mandate that the individual be able to "reasonably perform a job"

requires the same inquiry. See Chiari v. City of League City , 920 F.2d 311, 319 (5th Cir. 1991).

THE COURT'S CHARGE

The court submitted three questions to the jury. The first two asked the jury to

decide issues related to Kitchen's claim. Relevant portions of the questions and accompanying

instructions are:

Question No. 1

Do you find from a preponderance of the evidence that [ASH and

TDMHMR] discharged [Kitchen] because of her disability? A "yes"

answer must be based on a preponderance of the evidence.

You are instructed that [Kitchen] has a disability under Texas law.

You are further instructed that "because of disability" means discrimination

because of or on the basis of a physical or mental condition that does not

impair an individual's ability to reasonably perform a job.

ANSWER: No.

If you answered "no" to Question No. 1, please answer Question No. 2.

Otherwise, go on to Question No. 3.

Question No. 2

Do you find from a preponderance of the evidence that [ASH and

TDMHMR] could not have reasonably accommodated [Kitchen] in her

employment at the Austin State Hospital? Answer "They could not have"

or "They could have." An answer of "They could not have" must be based

on a preponderance of the evidence. If you do not find a preponderance of

the evidence supports an answer of "They could not have," then answer

"They could have."

In connection with this issue, you are instructed that "reasonable

accommodation" means steps, modifications, or adjustments that would

permit a person to perform a job with safety and efficiency.

You are further instructed that in order to find that a person could not

perform a job with safety, there must be a reasonable probability that her

job performance would result in substantial harm to herself or others.

You are further instructed in connection with this issue that factors in

determining whether a reasonable accommodation of a person with a

disability can be made include reasonableness of the cost of any necessary

workplace accommodation and the availability of alternatives.

ANSWER: They could have.

ASH and TDMHMR raised several objections to this charge at the initial charge

conference. First, they objected to the inclusion of question 2, arguing that the statute as it

existed at the time of Kitchen's suit did not impose a requirement of reasonable accommodation

upon the employer. Second, appellants objected to the instruction that the jury answer question

2 even if they answered "no" to question 1. Appellants insisted that the jury should reach

question 2 only if they found in question 1 that Kitchen had been discharged because of her

disability. In effect, appellants' objections demonstrate that they understood the issue in question

2 to be an affirmative defense, not a second theory under which Kitchen could prove

discrimination based on a disability. (8) This impression is strengthened by appellants' request for

a trial amendment to their pleading adding the affirmative defense of "undue burden," which the

court granted.

After a lunch recess, but before the jury was returned, appellants again objected

to the court's charge. Apparently realizing that question 2 referred to a separate theory of

recovery and not an affirmative defense, appellants objected that the burden of proof on the

accommodation issue in question 2 improperly rested with them and not with Kitchen. The court

overruled the objection, saying that it came too late or should be overruled on the merits.

After the jury returned its verdict, Kitchen moved for judgment and requested a

supplemental finding from the trial court that "[ASH and TDMHMR] failed reasonably to

accommodate [Kitchen] in her employment at Austin State Hospital." Kitchen averred as required

under Texas Rule of Civil Procedure 279 that this finding was a necessary element of her theory

of recovery for failure to provide reasonable accommodation, that the finding was supported by

legally and factually sufficient evidence, and that neither party requested submission nor objected

to the nonsubmission of this element. See Tex. R. Civ. P. 279. Appellants responded that

Kitchen was asking the court to deem a theory of recovery to which they had objected, and which

Kitchen had waived by omitting it from the charge. See Ramos v. Frito-Lay, Inc. , 784 S.W.2d

667, 668 (Tex. 1990). Appellants further requested that the trial court disregard the jury's

findings to questions 2 and 3, arguing that the jury's answer to question 1 resolved the issue of

their liability against Kitchen and that question 2 was no more than an affirmative defense which

became irrelevant. The trial court granted Kitchen's motion for supplemental findings and

rendered judgment in her favor.

DISCUSSION

This appeal asks us to decide (1) which party bears the burden of proof on the issue

of reasonable accommodation in an action for employment discrimination based on a theory of

failure to accommodate, (2) whether that burden was properly allocated in this case, and if not (3)

whether error was properly preserved so as to prevent a deemed finding on the issue by the trial

court.

The United States Supreme Court in two decisive cases has carefully outlined the

allocation of the burdens of proof and production that apply to Title VII discrimination cases. See

Texas Dep't of Community Affairs v. Burdine , 450 U.S. 248 (1981); McDonnell Douglas Corp.

v. Green , 411 U.S. 792 (1973); see also Texas Dep't of Human Servs. v. Hinds , 38 Tex. Sup. Ct.

J. 711 (June 8, 1995). Key to our resolution of the instant dispute is the Court's holding that

"[t]he ultimate burden of persuading the trier of fact that the defendant intentionally discriminated

against the plaintiff remains at all times with the plaintiff." Burdine , 450 U.S. at 253 . As the

Court explained, however, the intermediate burdens of production alternate between the plaintiff

and the defendant and serve to eliminate claims at an earlier stage if no fact dispute exists that

requires the court or jury to reach this ultimate question. Id. at 253-55 . (9)

The Burdine system of burden allocation clearly applies to those situations in which

an employer denies that an individual's disability played any role in its employment decision. See,

e.g. , Barth v. Gelb , 2 F.3d 1180, 1186 (D.C. Cir. 1993). In many cases of disability

discrimination like Kitchen's, however, the employer may concede that the employee's disability

played a role in its employment decision, but the parties disagree whether the disability impedes

the employee's ability to perform the "essential functions" of the job or whether a reasonable

accommodation is feasible that would enable the employee to perform the job. Id. The Burdine

test is somewhat inappropriate in these situations because the propriety of the employment

decision turns on the objective claims of the parties that accommodation was or was not possible

rather than on the employer's subjective motivation. Id. Nonetheless, the basic principle is

constant: the burden remains with the plaintiff to prove her case of employment discrimination

by a preponderance of the evidence. Id. ; see also Hinds , 38 Tex. Sup. Ct. J. at 717; Mason v.

Frank , 32 F.3d 315, 318 (8th Cir. 1994).

In a cause of action alleging failure to accommodate, part of plaintiff's burden is

to demonstrate that she is "otherwise qualified" for the position from which she was excluded.

She may show this qualification in one of two ways: (1) by proving that she can perform all

essential job functions without modifications or accommodations, or (2) that some reasonable

accommodation by the employer would enable her to perform the job. 29 C.F.R. § 1613.702 (f)

(defining qualified handicapped person under § 504 of Rehabilitation Act as one who "with or

without reasonable accommodation can perform the essential functions of the position in question

without endangering the health and safety of the individual or others"); Arline , 480 U.S. at 288

n.17; Mantolete v. Bolger , 767 F.2d 1416, 1423 (9th Cir. 1985). Although there appears to be

consensus among the federal courts to this extent, opinions diverge on whether the plaintiff or the

defendant employer then bears the burden of persuading the trier of fact that accommodations are

or are not possible. Compare Barth , 2 F.3d at 1186 -87 and Chandler v. City of Dallas , 2 F.3d

1385, 1395 (5th Cir. 1993) with Prewitt v. United States Postal Serv. , 662 F.2d 292, 308 (5th

Cir. 1981) (burden of proving inability to accommodate always remains on employer because

employer has greater knowledge of essentials of job and can obtain advice concerning

accommodations from private and government sources). (10) One court has suggested that the

disparity may result from the obligation of the government to undertake affirmative action to

accommodate the disabled under section 501 of the Rehabilitation Act, an obligation not imposed

under section 504 on programs receiving federal funds. See Overton v. Reilly , 977 F.2d 1190,

1194 (7th Cir. 1992). However, even that court acknowledges a lack of consensus on the

allocation of burden to prove reasonable accommodation under section 504. Id.

The issue is further complicated by the availability of the "undue hardship" defense.

Once the plaintiff has shown that a method of accommodation would allow her to perform the

essentials of the job, the defendant employer has two options: it may either attempt to refute the

plaintiff's evidence by demonstrating that the plaintiff would be unable to perform the essentials

of the job despite the proposed accommodation, or it may assume the burden of proving that the

proposed accommodation imposes on it an undue financial, logistic, or administrative burden.

See Barth , 2 F.3d at 1186-87 . As with other affirmative defenses, the defendant bears the burden

of proof for the undue hardship defense. Id. However, as the Barth court noted, "a grey area"

arises if a proposed accommodation is both unduly burdensome and unreasonable. Id. We

believe the confusion is lessened if the "reasonableness" of the accommodation is evaluated in

terms of the plaintiff's ability to do the job, while the question of "undue hardship" is linked to

the employer's financial and organizational ability to adopt the proposed modifications.

Under this analysis, the plaintiff clearly retains the burden of proving by a

preponderance of the evidence that an accommodation is possible that would enable her to perform

the "essential functions" of the position she holds or seeks. Id. ; Chandler , 2 F.3d at 1395 ; 29

C.F.R. §§ 1613.702 (f), .704(a)-(b). By demonstrating that she could be reasonably

accommodated, the plaintiff proves that she is "otherwise qualified" for or can, under the Texas

Act, "reasonably perform a job." Tex. Lab. Code Ann. § 21.015 ; Chiari , 920 F.2d at 319 .

The court's charge in the instant cause essentially collapsed into one question the

issue of reasonable accommodation, on which the plaintiff bears the burden of proof, and the issue

of undue hardship, an affirmative defense on which the defendant bears the burden of proof. The

court subsumed the question of whether Kitchen was "otherwise qualified" by instructing the jury

that a reasonable accommodation was one that "would permit a person to perform a job with

safety and efficiency" and without "substantial harm to herself or others." However, the court

simultaneously instructed the jury to consider the cost of the accommodation and availability of

alternatives in deciding whether an accommodation could be made--factors a defendant would argue

in support of its affirmative defense that a particular accommodation is unduly burdensome.

Although the caselaw suffers from a lack of clarity in setting forth the elements and

burdens in a discrimination action based on a failure to accommodate, and although appellants

failed to object to the charge as artfully as they might have, we believe their objections were

sufficient to preserve error. The objections clearly demonstrate that appellants believed question

2 to be an affirmative defense. Appellants find further support for their contention because the

question placed the burden of proof on them and because the instruction on the cost of

accommodation and availability of alternatives tracks the statutory language of section 21.260,

instructing the court to consider "the undue hardship defense ." See Tex. Lab. Code Ann. §

21.260 (emphasis added).

Moreover, question 1 broadly asked whether appellants discharged Kitchen because

of her disability, with instructions tracking the language of sections 21.051 and 21.105. Once

their objection that the Act contained no accommodation requirement until the 1993 amendments

was overruled, appellants may have believed that question 1 incorporated both disparate treatment

and failure to accommodate theories of recovery, with question 2 remaining their affirmative

defense. (11) As appellants cogently argue, if question 1 incorporates the failure to accommodate

theory of recovery, the jury's negative finding on this question absolves them of liability. Even

Kitchen admits in a post-submission brief that "[f]ailure to make reasonable accommodation is

itself disability discrimination." Kitchen's petition alleged only general "disability discrimination"

without outlining the separate theories of disparate treatment and failure to accommodate.

Therefore, although we do not believe that Kitchen's failure to amend her petition to reflect her

two theories precludes her recovery under the statute at that time, her failure to separately plead

the theories certainly lends credence to appellants' interpretation of question 1 as incorporating

both theories. However, because question 2 related clearly to neither an affirmative defense nor

to the special issue of accommodation, we decline to render judgment for appellants on the basis

of the jury's answer to question 1. See Spencer v. Eagle Star Ins. Co. , 876 S.W.2d 154, 157

(Tex. 1994). We therefore overrule appellants' first point of error urging that the trial court erred

by refusing to disregard the jury's answers to questions 2 and 3.

We do believe, however, that Kitchen bore the burden of proving that reasonable

accommodation was possible in order to show that she was "otherwise qualified," and that

appellants were entitled to raise the affirmative defense that the accommodation she proposed was

unduly burdensome. Given the confusion in the statute, caselaw, and instructions in this case, it

is not surprising that appellants failed to realize that question 2 embodied Kitchen's second theory

of recovery, not their affirmative defense, and failed to object to the misplaced burden of proof

at the original charge conference. The question remains whether the objection was timely.

Texas Rule of Civil Procedure 272 requires the court to allow counsel for the

parties "a reasonable time" to inspect and raise objections to the charge. The rule establishes as

an outside limit that all objections be presented "before the charge is read to the jury." Tex. R.

Civ. P. 272. Kitchen argues that the trial court has discretion to set the time allowed for

objections to the jury charge. See Hargrove v. Texas Employers' Ins. Ass'n , 332 S.W.2d 121

(Tex. Civ. App.--Amarillo 1959, no writ); Burton v. Williams , 195 S.W.2d 245 (Tex. Civ.

App.--Amarillo 1946, writ ref'd n.r.e.); Federal Underwriters Exch. v. Tubbe , 180 S.W.2d 473

(Tex. Civ. App.--Amarillo), rev'd on other grounds , 183 S.W.2d 444 (Tex. 1944). Although the

cases Kitchen cites generally support the proposition that a trial court has discretion to set the

amount of time counsel has to inspect and object to the charge, those cases are not on point. In

Hargrove and Burton , counsel failed to raise objections or request instructions until the court had

begun to read the charge to the jury. Hargrove , 332 S.W.2d at 123 ; Burton , 195 S.W.2d at 249 .

At that point, under the current rules, the trial court no longer had discretion to consider the

requests or objections. Methodist Hosps. of Dallas v. Corporate Communicators, Inc. , 806

S.W.2d 879, 884-85 (Tex. App.--Dallas 1991, writ denied). In Tubbe , the court found that

appellant failed to show harm because he was able to prepare all of his objections in the hour and

a half the court allowed. Tubbe , 180 S.W.2d at 477 .

The purpose of Rule 272 is to allow the court to correct any errors in the charge

before submitting it to the jury. Methodist Hosps. , 806 S.W.2d at 884 . In the instant cause, the

court did not set in advance a deadline for submitting requests or objections, and appellants raised

their objections before the jury returned to receive the charge. Moreover, the trial court did not

rely solely on a procedural technicality in overruling appellants' objection. Although it

admonished appellants that the objection came too late, the court also stated that the objection was

overruled even if timely. Because the trial court clearly considered the substance of appellants'

complaint, we believe that appellants have satisfied the requirement for preserving error in the

jury charge as articulated by the Texas Supreme Court. See State Dep't of Highways & Pub.

Transp. v. Payne , 838 S.W.2d 235, 241 (Tex. 1992) ("There should be but one test for

determining if a party has preserved error in the jury charge, and that is whether the party made

the trial court aware of the complaint, timely and plainly, and obtained a ruling .") (emphasis

added); Hinds , 38 Tex. Sup. Ct. J. at 718; cf. Alaniz v. Jones & Neuse, Inc. , 878 S.W.2d 244,

245 (Tex. 1994) (challenge to charge not preserved despite Payne , because plaintiff failed to

follow specific rules for requests in Texas Rule of Civil Procedure 273).

Because appellants' objection to the charge was sufficient to preserve error on

Kitchen's burden to prove that she was otherwise qualified for her position with reasonable

accommodation, we hold that the trial court erred in deeming her requested finding that appellants

failed to reasonably accommodate her employment at ASH. See Payne , 838 S.W.2d at 241

(finding on element of plaintiff's case cannot be deemed in her favor if opposing party objected

to omission of special issue); see also Spencer , 876 S.W.2d at 157 (proper objection to material

issue in defective charge entitles party to new trial); Dittberner v. Bell , 558 S.W.2d 527, 534

(Tex. Civ. App.--Amarillo 1977, writ ref'd n.r.e.). Contrary to Kitchen's assertions, the evidence

did not establish conclusively that appellants failed to reasonably accommodate her; although the

jury certainly may have determined on this record that ASH's conduct in Kitchen's dismissal

lacked good faith, the burden was Kitchen's to persuade the jury that reasonable accommodations

were possible that would have rendered her otherwise qualified for her position. Similarly, issues

relating to appellants' affirmative defense of "undue burden" should have been more clearly

articulated and allocated to a separate question. Accordingly, we sustain appellants' second point

of error.

CONCLUSION

We hold that Kitchen bore the burden of proving that reasonable accommodation

was possible as part of her burden of establishing that she was otherwise qualified for her position

at ASH. Appellants properly attempted through their objections to segregate the issue of

reasonable accommodation on which Kitchen bore the burden of proof and their affirmative

defense that any accommodation was unduly burdensome. Because appellants' objections were

sufficient to preserve error, the trial court should not have deemed the finding that appellants

failed to reasonably accommodate Kitchen. We therefore reverse the judgment of the trial court

and remand the cause for new trial on Kitchen's claim of failure to accommodate.

Bea Ann Smith, Justice

Before Justices Powers, Jones and B. A. Smith

Reversed and Remanded

Filed: June 21, 1995

Publish

1. Testimony regarding the seizure indicates that Kitchen was "unaware" of her

surroundings for 30 seconds to a minute and was disoriented for a couple of minutes after

the seizure ended. Kitchen herself testified that the seizure was typical of other seizures

she has had.

2. McQueary also apparently gave Kitchen a copy of the job description for her

position, which she failed to forward to Virgadamo.

3. At the time of trial, the Act was found at Texas Revised Civil Statutes article 5221k.

Because the recodification of the Act in the Labor Code effected no substantive change in

the law, we cite the current code for convenience. See Act of May 12, 1993, 73d Leg.,

R.S., ch. 269, §§ 5, 6, 1993 Tex. Gen. Laws 987 , 1273.

4. When it recodified the Act in the Labor Code, the legislature concurrently amended

the Act to make an employer's failure or refusal to furnish reasonable workplace

accommodation an unlawful employment practice. See Act of May 14, 1993, 73d Leg.,

R.S., ch. 276, § 5.17, 1993 Tex. Gen. Laws 1285 , 1288-89. However, the amended

provisions apply only to complaints filed with the Commission on Human Rights on or after

September 1, 1993. Id. at 1292 . Kitchen filed her complaint with the Commission on Human

Rights on February 8, 1991.

5. Although they provide distinct statutory bases for bringing claims of employment

discrimination, federal courts have looked to Title VII precedent in interpreting the

Rehabilitation Act of 1973. See, e.g. , Barth v. Gelb , 2 F.3d 1180, 1183-84 (D.C. Cir. 1993)

(looking to Title VII precedent on religious discrimination). In turn, the ADA adopts the

powers, remedies, and procedures of Title VII and directs the agencies with enforcement

authority under the ADA to "develop procedures to ensure that administrative complaints filed

under [the ADA] and under the Rehabilitation Act of 1973 are dealt with in a manner that

avoids duplication of effort and prevents imposition of inconsistent or conflicting standards."

42 U.S.C. § 12117 (b) (Supp. V 1993); see also 29 U.S.C. §§ 791 (g), 794(d) (synchronizing

standards used to determine violations under the Rehabilitation Act with those employed under

the ADA).

6. As codified, sections 501 and 504 of the Rehabilitation Act of 1973 appear at 29

U.S.C. §§ 791 and 794, respectively. Because most cases refer to these sections by their

act rather than code designations, we will follow this convention.

7. The ADA includes in its definition of "discrimination" a failure to make "reasonable

accommodations to the known physical or mental limitations of an otherwise qualified

individual with a disability." See ADA, 42 U.S.C. § 12112 (b)(5)(A) (Supp. V 1993). The

ADA also defines "qualified individual with a disability" as an individual who "with or

without reasonable accommodation, can perform the essential functions of the employment

position that such individual holds or desires." Id. § 12111(8). Finally, the ADA explicitly

defines "reasonable accommodation." See id. § 12111(9). Because the ADA refers directly to

the issue of "reasonable accommodation," it more closely resembles the Texas provisions

following the enactment of § 5.17 of the Labor Code.

Section 501 of the Rehabilitation Act is also inapposite as a guide because it imposes an

affirmative duty on employers which finds no counterpart in the Texas Act. Section 501

requires federal employers to submit an "affirmative action program plan for the hiring,

placement and advancement of individuals with disabilities" including "a description of the

extent to which and methods whereby the special needs of employees who are individuals with

disabilities are being met." 29 U.S.C. § 791 (b) (1988) (emphasis added); see also Mantolete

v. Bolger , 767 F.2d 1416, 1421 (9th Cir. 1985) (observing § 501's explicit requirement that

accommodation of the handicap be considered in determining handicapped person's

qualification for employment); Prewitt v. United States Postal Serv. , 662 F.2d 292, 307 (5th

Cir. 1981) (same). As appellants note, this affirmative duty to create an action program under

§ 501 may shift the burden to the defendant employer to show that no reasonable

accommodation was possible. See Overton v. Reilly , 977 F.2d 1190, 1194 (7th Cir. 1992).

8. Appellants made a further objection in regard to question 3 that reinforces this

interpretation. Question 3 asked the jury to award Kitchen attorney's fees if they

answered either "yes" to question 1 or "they could have" to question 2. Appellants requested

the instruction to read that the jury proceed to question 3 only if they answered question 1

affirmatively and found the appellants could have accommodated Kitchen in question 2.

9. In Burdine the Court applied these burdens of proof and production in a case alleging

disparate treatment discrimination, i.e., the blatant discrimination that stems from simple bias

against the characteristic in question. The plaintiff must first establish her prima facie case,

demonstrating by a preponderance of the evidence that she was qualified for the position and

that the circumstances of termination give rise to an inference of unlawful discrimination.

Burdine , 450 U.S. at 253 . If established, the prima facie case creates a presumption that the

employer unlawfully discriminated against the employee. Id. at 254 . The burden then shifts

to the defendant employer to produce evidence sufficient to raise a genuine issue of fact that its

employment action was not the result of discriminatory animus but instead was motivated by a

legitimate reason. Id. In so doing, the defendant employer rebuts the presumption raised by

the plaintiff's prima facie case and frames the factual issue requiring ultimate resolution by the

trier of fact. The burden of production then returns to the plaintiff and merges with her

ultimate burden of persuading the trier of fact that the employer's proffered reason for its

action is mere pretext and that she has been the victim of unlawful discrimination. Id. at 255 .

10. Although Prewitt was a § 501 case, its rationale for placing the burden of proving

inability to accommodate on the employer was based on an article discussing the burden under

a § 504 cause of action. Prewitt , 662 F.2d at 308 (citing Donald J. Olenick, Accommodating

the Handicapped: Rehabilitating Section 504 After Southeastern , 80 Colum. L. Rev. 171 , 187-88 (1980)).

11. Appellants followed with a request for an additional instruction to question 1, citing

Chevron v. Redmon , 745 S.W.2d 314, 318 (Tex. 1987), for the proposition that no cause of

action exists under § 21.051 if a person's disability impairs her ability to do the particular job

for which she was hired. Apparently, appellants were attempting to limit the jury's

consideration of any accommodation based on job reassignment. This request further indicates

that they may have believed question 1 encompassed the theory of failure to accommodate.

We also note that although an employer need not find another job for a disabled

employee no longer qualified for her present position, under federal law some job

reassignment or assignment to "alternative employment opportunities" consistent with the

employer's existing policies may be required. While reserving opinion on the accuracy or

desirability of the policy, we note that some authority suggests an employer's duty of

accommodation may not extend this far under the Texas Act. Compare Arline , 480 U.S. at

289 n.19 with Chiari , 920 F.2d at 319 (citing Chevron , 745 S.W.2d at 318 , for proposition

that Texas Act does not impose duty of reassignment).