The Harris Center for Mental Health and IDD v. Deborah McLeod

Opinion issued April 2, 2024

In The

Court of Appeals

For The

First District of Texas

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NO. 01-22-00947-CV

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THE HARRIS CENTER FOR MENTAL HEALTH AND IDD, Appellant

V.

DEBORAH MCLEOD, Appellee

On Appeal from the 189th District Court

Harris County, Texas

Trial Court Case No. 2019-39250

MEMORANDUM OPINION

Deborah McLeod sued her former employer, the Harris Center for Mental

Health and IDD (“the Harris Center”), for disability discrimination, retaliation, and

failure to accommodate in violation of the Texas Commission on Human Rights Act

2

(“TCHRA”). See TEX. LAB. CODE §§ 21.051, 21.055, 21.128(a). The Harris Center

asserted governmental immunity from suit and sought dismissal of McLeod’s claims

in a combined second plea to the jurisdiction and motion for summary judgment, but

the trial court denied the combined motion.1

In a single issue with several subparts on appeal, the Harris Center contends

that the trial court erred by denying its combined motion. The Harris Center argues

that (1) it is a governmental unit entitled to assert immunity; and (2) it retains its

immunity under the TCHRA because McLeod did not establish a prima facie case

for any of her claims or raise a fact question on whether the Harris Center’s proffered

reasons for its challenged actions were pretextual. We reverse and render judgment.

Background

The Harris Center provides mental health and intellectual disability services

to eligible Harris County residents. McLeod worked for the Harris Center for nearly

seventeen years before her employment was terminated in January 2018.

In August 2016, McLeod accepted a position as a Licensed Practitioner for

the Healing Arts (“LPHA”) at the Harris Center’s northwest clinic. As an LPHA,

McLeod was responsible for providing clinical mental health services to patients,

1

This is the second interlocutory appeal filed by the Harris Center raising its

governmental immunity from McLeod’s claims. See Harris Ctr. for Mental Health

& IDD v. McLeod, No. 01-20-00838-CV, 2022 WL 1632173 (Tex. App.—Houston

[1st Dist.] May 24, 2022, no pet.) (mem. op.).

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including intake, case management, cognitive behavioral therapy to reduce or

eliminate symptoms of severe and persistent mental illness, and crisis intervention

services. The LPHA role also required McLeod to timely complete paperwork so

clients could receive appropriate mental health services. Mary Jane McLaggan

became McLeod’s supervisor when McLeod accepted the LPHA position, and

McLeod’s complaints in this lawsuit focus on McLaggan’s conduct.

In February 2017, McLeod submitted to the Harris Center a note from a

registered dietitian nutritionist stating that McLeod was not receiving a consistent

lunch schedule at work, which was “negatively impacting her overall health and

wellness goals[.]” The note concluded that it would be “in the best interest of

[McLeod’s] health to be able to have at least a 30 minute lunch around the same time

(give or take 1–2 hours) on a daily basis while working.” In her deposition after she

filed suit against the Harris Center, McLeod disclosed for the first time that she had

binge eating disorder. Shortly after McLeod submitted the note, the Harris Center

altered employees’ lunch schedules to provide more consistent lunch breaks, but

McLeod disputes that her lunch breaks became more consistent.

Around the same time, McLaggan issued McLeod a written reprimand for

discussing non-work matters with coworkers; failing to check the client schedule,

which caused one client to wait an extended time for an appointment with McLeod;

and behaving unprofessionally and inappropriately with a coworker who was

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conducting a training session for McLeod by stating that she did not need the

training. McLaggan prohibited McLeod from discussing non-work matters with

coworkers during business hours, taking extended lunch breaks without permission,

and speaking disrespectfully to coworkers. McLaggan also required McLeod to

regularly check and update the client schedule.

In early March 2017, McLeod filed an internal grievance with the Harris

Center. McLeod complained that she felt “singled out for harassment” in the

reprimand because she was the only employee who was prohibited from discussing

non-work matters with coworkers. McLeod also complained that McLaggan had

“repeatedly spoken to [her] in an impatient, derogatory and disrespectful manner in

front of [McLeod’s] peers.” McLeod denied taking extended lunch breaks, causing

clients to wait extended times for appointments, or speaking inappropriately to her

coworker. McLeod stated that the “work environment has come to feel hostile, based

on [McLaggan’s] behavior towards” McLeod. McLeod stated that she had been

treated by a psychologist to address the issues she was having with McLaggan,

which had caused her work-related stress, anxiety, and depression. As a resolution,

McLeod suggested that McLaggan attend training courses concerning how she

speaks to McLeod and to generally treat McLeod better.

The Harris Center conducted two investigations into McLeod’s complaints.

The investigations determined that the restriction on McLeod’s social interactions

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was “draconian,” but otherwise there was no evidence supporting McLeod’s

complaints. The second investigation, conducted by a senior manager, determined

that if problems arose in the future, McLeod should immediately report the issue to

senior management with at least two managers present.

In May 2017, McLeod received a second written reprimand from McLaggan

for continuing to keep clients waiting extended time periods for their

appointments—sometimes up to two hours—since McLeod’s previous reprimand.

The reprimand required McLeod to follow proper procedures for taking leave time,

regularly check and update the schedule, and attend monthly supervision sessions

with McLaggan.

McLeod took a medical leave of absence from June 8, 2017, to July 10, 2017.

On the day she returned to work, McLeod submitted a request for accommodation.

In the request, McLeod disclosed for the first time that she suffered from major

depressive disorder and anxiety. The request stated that McLeod’s “symptoms have

been triggered and greatly exacerbated since [she] switched positions almost a year

ago and began working under [her] current supervisor Jane McLaggan.” The request

further stated that McLaggan regularly spoke to McLeod in a derogatory,

disrespectful, and inappropriate manner, and McLeod “felt harassed by her.”

McLeod requested a reasonable accommodation, and she suggested “perhaps

reassignment.”

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McLeod attached a note from her treating psychologist stating that she had

treated McLeod with psychotherapy for nearly eighteen years, and McLeod’s

“distress” had increased since McLaggan became her supervisor. The psychologist

suggested that if McLeod requested reassignment, the request should be granted “to

aid her in maintaining good mental health while continuing to be a productive

employee.”

The Harris Center’s ADA committee reviewed McLeod’s request for

accommodation and approved it. The committee recommended transferring McLeod

to the same LPHA position at a different clinic. A committee member emailed

McLeod and offered her a reassignment “to a different supervisor with the same job

duties” she currently held. But McLeod declined the offer and requested to stay in

her current position. McLeod explained that since she had returned from medical

leave, McLaggan was treating her respectfully. McLeod reserved the right to re-

request accommodation if the circumstances changed, but the appellate record does

not indicate that McLeod made a subsequent request for accommodation.

In August 2017, shortly after McLeod declined the Harris Center’s

accommodation offer, McLaggan issued McLeod a third written reprimand. This

reprimand alleged that McLeod “continued to demonstrate an inability to improve”

on the time management and professionalism concerns raised in the prior

reprimands. The reprimand detailed several instances in which McLeod had been

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late arriving to work or returning from a lunch break, causing clients to wait extended

times for their appointments. The reprimand also listed several instances in which

clients complained that McLeod had acted unprofessionally. The reprimand

addressed issues that arose before McLeod took the medical leave of absence and

requested the accommodation for her major depressive disorder, but the reprimand

stated that McLaggan had been unable to meet with McLeod sooner because

McLeod was on leave and her request for accommodation was pending.

On October 5, 2017, McLeod filed a formal charge of discrimination and

retaliation (the “charge”) with the Equal Employment Opportunity Commission and

the Texas Workforce Commission. In the charge, McLeod alleged that she had

submitted a request for accommodation concerning her lunch schedule, but the

Harris Center “did not perform any good faith analysis regarding this request to

[McLeod’s] understanding.” McLeod also alleged that “McLaggan spoke to [her] in

an impatient, derogatory, and disrespectful manner in front of [her] peers” and was

“rude and hostile to [McLeod] on a regular basis causing [McLeod] to work with a

psychologist to address these issues.”

In the charge, McLeod conceded that the Harris Center “offered [her] a proper

accommodation” in response to her July 2017 request to accommodate her major

depressive disorder. McLeod stated, however, that within days of declining the offer,

McLaggan issued her a written reprimand expressly noting that McLaggan waited

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to issue it until after McLeod returned from medical leave and her accommodation

request had been resolved.

In June 2019, McLeod sued the Harris Center for disability discrimination,

retaliation, and failure to accommodate in violation of the TCHRA.2 See TEX. LAB.

CODE §§ 21.051, 21.055, 21.128(a). McLeod alleged that the Harris Center “did not

perform any good faith analysis” of her request for more consistent lunch breaks,

and she was not aware that McLaggan had forwarded this request to the Harris

Center. McLeod also alleged that McLaggan spoke to her improperly and was

consistently rude and hostile to her, requiring McLeod to receive psychological

treatment.

McLeod alleged that she filed an internal complaint concerning McLaggan’s

behavior, and “[a]lmost immediately thereafter,” McLaggan retaliated against her

by writing her up and otherwise causing her significant anxiety and stress. McLeod

alleged that the Harris Center offered a proper accommodation for her major

depressive disorder by authorizing her transfer to another clinic, which she declined.

2

McLeod’s petition does not clearly state her causes of action. In the trial court and

on appeal, the Harris Center has construed McLeod’s petition as asserting claims of

disability discrimination, retaliation, and failure to accommodate under the

TCHRA. McLeod has not challenged the Harris Center’s construction of her claims,

and she has responded only to the challenges concerning her claims of disability

discrimination and retaliation. Moreover, McLeod’s petition expressly disclaimed

any cause of action based on federal law. Accordingly, we construe McLeod’s

petition as asserting claims for disability discrimination, retaliation, and failure to

accommodate under the TCHRA.

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But she alleged that McLaggan retaliated against her soon after she declined the

accommodation offer by writing her up, and McLaggan waited to write her up until

after she returned from medical leave and her accommodation request was resolved.

McLeod also alleged that McLaggan intentionally gave her performance tasks that

could not be completed within normal work hours in an attempt to provide grounds

for the termination of McLeod’s employment. McLaggan’s retaliatory actions

allegedly caused McLeod to go on medical leave a second time before she filed the

charge.3

The Harris Center filed an answer asserting numerous affirmative defenses,

including that it was entitled to governmental immunity from McLeod’s lawsuit. The

Harris Center also filed an original plea to the jurisdiction raising its immunity from

McLeod’s claims. The trial court denied the plea, and the Harris Center filed its first

interlocutory appeal in this case. A separate panel of this Court held that McLeod

did not exhaust her administrative remedies for claims based on the Harris Center’s

actions after McLeod filed the charge and that the trial court lacked subject-matter

jurisdiction over such claims. See Harris Ctr. for Mental Health & IDD v. McLeod,

3

McLeod’s petition also sought relief based on the Harris Center’s actions after she

filed the charge, including McLaggan’s prohibiting McLeod from staying after work

to complete work tasks, placing her on probation, and eventually terminating her

employment in January 2018. As discussed below, however, this Court previously

rendered judgment dismissing these claims in the Harris Center’s first interlocutory

appeal. See id. at * 6, 9.

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No. 01-20-00838-CV, 2022 WL 1632173, at *3–6 (Tex. App.—Houston [1st Dist.]

May 24, 2022, no pet.) (mem. op.). The Court therefore reversed the part of the trial

court’s order denying the Harris Center’s plea as to claims based on actions arising

after McLeod filed her charge and rendered judgment dismissing those claims. Id. at

*9. We affirmed the remainder of the trial court’s order, however, holding that the

Harris Center did not produce any evidence establishing that it was a governmental

unit entitled to assert governmental immunity. Id.

The Harris Center then filed a second plea to the jurisdiction combined with

a motion for summary judgment on both no-evidence and traditional grounds. The

Harris Center argued that it was a “community center” established under Health and

Safety Code chapter 534, and therefore it was a governmental unit entitled to assert

immunity. The Harris Center supported this argument with an affidavit from its

general counsel and its bylaws. The Harris Center also argued that it was entitled to

immunity because McLeod could not establish a prima facie case for any of her

claims or raise a fact issue on whether the Harris Center’s non-discriminatory, non-

retaliatory reasons for its challenged conduct were pretextual.

McLeod filed a response, but she did not address the challenge to her failure

to accommodate claim. Instead, she only addressed her discrimination and retaliation

claims. Concerning her discrimination claim, McLeod argued that she was

constructively discharged. Although she conceded that she was terminated and did

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not actually resign, McLeod argued that a reasonable person facing McLaggan’s

conduct would have felt compelled to resign.

Concerning her retaliation claim, McLeod argued that she engaged in

protected activity by submitting the March 2017 internal grievance against

McLaggan, which mentioned her prior request in February 2017 for more consistent

lunch breaks, and by submitting the July 2017 request for an accommodation for her

major depressive disorder and anxiety. McLeod further argued that she suffered

adverse employment actions when McLaggan targeted and harassed her, forbade her

from socializing with coworkers, issued her written reprimands, and assigned her

unachievable work tasks. Finally, McLeod argued that a causal link existed between

her engagement in these protected activities and her experiencing adverse

employment actions based on their temporal proximity. McLeod also argued that the

Harris Center’s proffered reasons for its conduct were a pretext for discrimination

and retaliation.

The parties primarily relied on the same summary judgment evidence, which

included a transcript of McLeod’s deposition; affidavits from McLaggan and another

supervisor of McLeod’s; the February 2017 nutritionist’s note; the March 2017

internal grievance and the Harris Center’s responses to it after investigating the

grievance; the written reprimands; the July 2017 request for reassignment as a

reasonable accommodation for McLeod’s major depressive disorder and anxiety; the

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Harris Center’s approval of the accommodation request, its offer to reassign her to a

different clinic, and McLeod’s denial of the offer; and the charge.4

The trial court denied the Harris Center’s combined second plea to the

jurisdiction and motion for summary judgment without stating the basis for its

ruling. This appeal followed.5

Governmental Immunity Under the TCHRA

The Harris Center contends that the trial court erroneously denied its

combined plea to the jurisdiction and motion for summary judgment because

McLeod cannot demonstrate a waiver of the Harris Center’s governmental

immunity. For ease of reference, we refer to the Harris Center’s combined motion

as a motion for summary judgment.

4

The parties also relied on documents concerning allegations of the Harris Center’s

actions after McLeod filed the charge. As discussed above, however, these actions

are not relevant to this appeal.

5

Civil Practice and Remedies Code section 51.014(a)(8) provides this Court with

jurisdiction over this appeal from the trial court’s interlocutory order denying the

Harris Center’s combined plea to the jurisdiction and motion for summary judgment

asserting immunity from suit. See TEX. CIV. PRAC. & REM. CODE § 51.014(a)(8)

(authorizing party to appeal interlocutory order granting or denying plea to

jurisdiction filed by governmental unit); Town of Shady Shores v. Swanson, 590

S.W.3d 544, 549 (Tex. 2019) (stating that section 51.014(a)(8) authorizes

interlocutory appeal when trial court denies governmental unit’s assertion of

governmental immunity, whether asserted by plea to jurisdiction, motion for

summary judgment, or otherwise).

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A. Standard of Review

“[S]overeign immunity protects the State of Texas against lawsuits for

damages unless the State consents to be sued.” Gulf Coast Ctr. v. Curry, 658 S.W.3d

281, 283 (Tex. 2022). Governmental immunity provides similar protection to

subdivisions of the State, including “community centers” established under Health

and Safety Code section 534.001. TEX. HEALTH & SAFETY CODE § 534.001(a), (b)(3)

(defining “community center” to include “a community mental health and

intellectual disability center that provides mental health and intellectual disability

services”), (c)(1) (providing that “community center” is governmental unit as

defined and specified by Texas Tort Claims Act); Dallas Metrocare Servs. v. Pratt,

124 S.W.3d 147, 148–49 (Tex. 2003) (per curiam) (concluding that Metrocare, “a

local governmental unit” under Health and Safety Code section 534.001(c)(1) that

provided mental health services, was entitled to governmental immunity from

whistleblower claims); see also Harris Cnty. v. Sykes, 136 S.W.3d 635, 638 (Tex.

2004) (“Governmental immunity operates like sovereign immunity to afford similar

protection to subdivisions of the State, including counties, cities, and school

districts.”).

“Governmental immunity has two components: immunity from liability,

which bars enforcement of a judgment against a governmental entity, and immunity

from suit, which bars suit against the entity altogether.” Tooke v. City of Mexia, 197

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S.W.3d 325, 332 (Tex. 2006). Immunity from suit “thus presents a jurisdictional

question of whether the State has expressly consented to suit.” Curry, 658 S.W.3d

at 284; see also Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225

(Tex. 2004) (stating that immunity from suit “defeats a trial court’s subject matter

jurisdiction”). The plaintiff has the burden to affirmatively demonstrate that the trial

court has jurisdiction, which “encompasses the burden of establishing a waiver of

sovereign immunity in suits against the government.” Town of Shady Shores v.

Swanson, 590 S.W.3d 544, 550 (Tex. 2019).

A party may challenge a trial court’s subject-matter jurisdiction through

various procedural vehicles, including a plea to the jurisdiction or a motion for

summary judgment. Alamo Heights Indep. Sch. Dist. v. Clark, 544 S.W.3d 755, 770

(Tex. 2018); see Swanson, 590 S.W.3d at 550–52 (holding that governmental

defendant may assert immunity in no-evidence summary judgment motion). To

assert immunity, a governmental defendant may challenge the jurisdictional

allegations in the pleadings, the existence of jurisdictional facts, or both. Tex. Dep’t

of Transp. v. Lara, 625 S.W.3d 46, 52 (Tex. 2021). When, as here, the defendant

challenges the existence of jurisdictional facts, the court “must move beyond the

pleadings and consider evidence.” Id. (quoting Clark, 544 S.W.3d at 770). In doing

so, our analysis “mirrors that of a traditional summary judgment.” Id. (quoting

Mission Consol. Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629, 635 (Tex. 2012)).

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We review de novo a trial court’s rulings on both a plea to the jurisdiction and

a summary judgment motion. City of Waco v. Lopez, 259 S.W.3d 147, 150 (Tex.

2008) (plea to jurisdiction); Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d

211, 215 (Tex. 2003) (summary judgment); Donaldson v. Tex. Dep’t of Aging &

Disability Servs., 495 S.W.3d 421, 431 (Tex. App.—Houston [1st Dist.] 2016, pet.

denied) (summary judgment). When a party moves for summary judgment on both

traditional and no-evidence grounds, we first review the trial court’s ruling under the

no-evidence standard of review. First United Pentecostal Church of Beaumont v.

Parker, 514 S.W.3d 214, 219 (Tex. 2017). We then review any claims that survive

no-evidence review under the traditional standard. Id. at 219–20; see Donaldson,

495 S.W.3d at 432.

After an adequate time for discovery, a party may move for no-evidence

summary judgment on the ground that no evidence exists of one or more essential

elements of a claim or defense on which an adverse party would have the burden of

proof at trial. TEX. R. CIV. P. 166a(i). Once raised, the burden shifts to the nonmovant

to produce evidence raising a genuine issue of material fact on each element

specified in the motion. Id.; Donaldson, 495 S.W.3d at 432. The trial court must

grant the motion unless the nonmovant presents more than a scintilla of evidence

raising a fact issue on each challenged element. TEX. R. CIV. P. 166a(i); Donaldson,

495 S.W.3d at 432.

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To prevail on traditional summary judgment grounds, the movant must

establish that no genuine issue of material fact exists and that it is entitled to

judgment as a matter of law. TEX. R. CIV. P. 166a(c); see also Garcia, 372 S.W.3d

at 635 (“Initially, the defendant carries the burden to meet the summary judgment

proof standard for its assertion that the trial court lacks jurisdiction.”). If the movant

meets its initial summary judgment burden, the burden shifts to the plaintiff to raise

a fact question on the jurisdictional issue. Garcia, 372 S.W.3d at 635; see Lara, 625

S.W.3d at 52 (stating that when governmental defendant challenges existence of

jurisdictional facts, analysis mirrors traditional summary judgment, thus requiring

plaintiff to raise fact issue on each challenged element of plaintiff’s claims).

In sum, because the Harris Center asserted its immunity in a combined plea to

the jurisdiction and motion for summary judgment, we must consider whether

McLeod met her burden to raise a genuine issue of material fact on each challenged

element of her claims. See Lara, 625 S.W.3d at 52. In making this determination,

we consider the evidence in the light most favorable to the nonmovant, crediting

favorable evidence if reasonable jurors could do so and disregarding contrary

evidence unless reasonable jurors could not. Zive v. Sandberg, 644 S.W.3d 169, 173

(Tex. 2022); Donaldson, 495 S.W.3d at 432. We must take as true all evidence

favorable to the plaintiff, indulging every reasonable inference and resolving any

doubts in the plaintiff’s favor. Clark, 544 S.W.3d at 771. When, as here, the trial

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court’s summary judgment order does not state the basis for the ruling, we must

uphold the order if any theory advanced in the motion is meritorious. Knott, 128

S.W.3d at 216; Donaldson, 495 S.W.3d at 432.

B. Whether the Harris Center is a Governmental Unit Entitled to Assert

Immunity From Suit

The Harris Center first contends that it is a “community center” established

under Health and Safety Code chapter 534 and entitled to assert immunity. McLeod

does not address this argument on appeal.

Only the State and its political subdivisions are authorized to assert immunity

from suit. See Garcia, 372 S.W.3d at 636 (stating that “immunity deprives a trial

court of jurisdiction over lawsuits in which the state or certain governmental units

have been sued, unless the state consents to suit”). “Community centers” established

under Health and Safety Code section 534.001 are governmental entities entitled to

assert immunity. TEX. HEALTH & SAFETY CODE § 534.001(a), (c)(1); see Pratt, 124

S.W.3d at 148–49. Section 534.001(b) defines “community center” to include “a

community mental health and intellectual disability center that provides mental

health and intellectual disability services.” TEX. HEALTH & SAFETY CODE

§ 534.001(b)(3).

To support its contention that it is a governmental unit entitled to assert

immunity, the Harris Center relied on an affidavit from its general counsel and its

bylaws. The general counsel averred that the Harris County Commissioners Court

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established the Harris Center in response to the enactment of the Texas Mental

Health and Mental Retardation Act of 1965, and the Harris Center operates as a

“community center” under Health and Safety Code chapter 534. The Harris Center’s

bylaws state that the Harris Center operates “as a community mental health and

intellectual disability center that provides mental health and intellectual disability

services to persons in Harris County, Texas, in accordance with chapter 534 of the

Texas Health and Safety Code” and other applicable law. See id. In response to the

Harris Center’s motion for summary judgment, McLeod did not dispute the Harris

Center’s status as a governmental unit entitled to assert immunity. The Harris

Center’s evidence on this issue is thus uncontroverted.

The undisputed evidence conclusively shows that the Harris Center is a

“community center” under section 534.001. A “community center” established

under section 534.001 to provide community mental health and intellectual disability

services is a governmental unit entitled to assert immunity. See id. § 534.001(a),

(b)(3), (c)(1); Pratt, 124 S.W.3d at 148; Castillo v. Tropical Tex. Ctr. for Mental

Health & Mental Retardation, 962 S.W.2d 622, 625–26 (Tex. App.—Corpus

Christi–Edinburg 1997, no pet.) (concluding that entity was entitled to governmental

immunity from suit based on uncontroverted affidavit from Commissioner of Texas

Department of Mental Health and Mental Retardation recognizing that entity

qualified as “community center” under prior version of section 534.001). We

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therefore conclude that the Harris Center has established its status as a governmental

unit entitled to assert immunity from suit.

C. Whether McLeod’s TCHRA Claims Waived the Harris Center’s

Immunity From Suit

The Harris Center next contends that it is entitled to governmental immunity

from each of McLeod’s claims of failure to accommodate, disability discrimination,

and retaliation.

The Texas Legislature enacted the TCHRA to address discrimination and

retaliation in the workplace and “to coordinate and conform with federal anti-

discrimination and retaliation laws under Title VII.” Prairie View A&M Univ. v.

Chatha, 381 S.W.3d 500, 504 (Tex. 2012); accord Lara, 625 S.W.3d at 52, 53, 58

(considering federal law in deciding claims of failure to accommodate,

discrimination, and retaliation under TCHRA). When analyzing a TCHRA claim,

we consider state cases as well as the analogous federal statutes and the case law

interpreting those statutes. Lara, 625 S.W.3d at 52; Anderson v. Houston Cmty. Coll.

Sys., 458 S.W.3d 633, 643 (Tex. App.—Houston [1st Dist.] 2015, no pet.).

“The TCHRA waives immunity, but only when the plaintiff states a claim for

conduct that actually violates the statute.” Lara, 625 S.W.3d at 52 (quoting Clark,

544 S.W.3d at 770); Garcia, 372 S.W.3d at 636 (“[T]he Legislature has waived

immunity only for those suits where the plaintiff actually alleges a violation of the

TCHRA by pleading facts that state a claim thereunder.”). To state a claim under the

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TCHRA, the plaintiff must “plead the elements of her statutory cause of action—

here the basic facts that make up the prima facie case—so that the court can

determine whether she has sufficiently alleged a TCHRA violation.” San Antonio

Water Sys. v. Nicholas, 461 S.W.3d 131, 135 (Tex. 2015) (quoting Garcia, 372

S.W.3d at 637). The plaintiff must also “strictly satisf[y] the procedural requirements

outlined in the TCHRA” to bring suit alleging a violation of the TCHRA against a

governmental unit. Chatha, 381 S.W.3d at 513–14.

A TCHRA plaintiff may rely on direct or circumstantial evidence. Tex. Tech

Univ. Health Scis. Ctr.-El Paso v. Flores, 612 S.W.3d 299, 305 (Tex. 2020). When,

as here, a plaintiff relies on circumstantial evidence, we follow the burden-shifting

framework established by the United States Supreme Court. McDonnell Douglas

Corp. v. Green, 411 U.S. 792, 802–04 (1973); Flores, 612 S.W.3d at 305. Under this

framework, (1) the plaintiff must first create a presumption of illegal discrimination

or retaliation by establishing a prima facie case; (2) the defendant must then rebut

that presumption by establishing a legitimate, nondiscriminatory reason for the

employment action; and (3) the plaintiff must then overcome the rebuttal evidence

by establishing that the defendant’s stated reason is a mere pretext. Flores, 612

S.W.3d at 305. But “the burden of persuasion remains at all times with the

employee.” Clark, 544 S.W.3d at 782.

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1. Failure to Accommodate Claim

The Harris Center argues that the trial court erred by denying its motion for

summary judgment challenging McLeod’s failure to accommodate claim because

McLeod did not respond to the Harris Center’s challenge to this claim in the trial

court. McLeod does not respond to these arguments in her appellate brief.

An employer violates the TCHRA if, with an exception not applicable here,

the employer “fail[s] or refuse[s] to make a reasonable workplace accommodation

to a known physical or mental limitation of an otherwise qualified individual with a

disability who is an employee.” TEX. LAB. CODE § 21.128(a). The elements of a

failure to accommodate claim are: (1) the individual has a disability; (2) the

employer had notice of the disability; (3) with a reasonable accommodation, the

individual could perform the essential functions of the position; and (4) the employer

refused to make the accommodation. Datar v. Nat’l Oilwell Varco, L.P., 518 S.W.3d

467, 474 (Tex. App.—Houston [1st Dist.] 2017, pet. denied). A failure to

accommodate claim is similar to but distinct from a claim for disability

discrimination. Compare TEX. LAB. CODE § 21.051 (disability discrimination) with

id. § 21.128(a) (failure to accommodate); see Lara, 625 S.W.3d at 51 (describing

traditional discrimination claim under section 21.051 and failure to accommodate

claim under section 21.128 as “two disability-discrimination theories”).

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In its summary judgment motion, the Harris Center argued that it was entitled

to summary judgment on McLeod’s failure to accommodate claim because she had

no evidence establishing any element of the claim. See Datar, 518 S.W.3d at 474.

The burden then shifted to McLeod to produce evidence raising a genuine issue of

material fact on all elements of her failure to accommodate claim. See TEX. R. CIV.

P. 166a(i); Donaldson, 495 S.W.3d at 432.

McLeod filed a response to the Harris Center’s summary judgment motion,

but she did not mention or rebut the Harris Center’s no-evidence challenge to her

failure to accommodate claim. See TEX. R. CIV. P. 166a(i); Donaldson, 495 S.W.3d

at 432. Nor did McLeod point to any evidence raising a fact issue on this claim.

Instead, McLeod’s prayer expressly requested that “this case be allowed to proceed

to the jury on her disability discrimination and retaliation claims.” Because McLeod

presented no evidence to support her failure to accommodate claim, the trial court

was required to grant summary judgment on this claim. See TEX. R. CIV. P. 166a(i);

Donaldson, 495 S.W.3d at 432. We therefore conclude that McLeod did not meet

her burden to affirmatively demonstrate a waiver of the Harris Center’s immunity

from her failure to accommodate claim, and we hold that the trial court erred by

denying summary judgment on this claim.6

6

Because we conclude that the Harris Center was entitled to summary judgment on

this claim on no-evidence grounds, we need not separately consider whether

summary judgment was appropriate on traditional grounds. See Donaldson v. Tex.

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2. Disability Discrimination Claim

The Harris Center next argues that the trial court erred by denying summary

judgment on McLeod’s disability discrimination claim because McLeod did not

present prima facie proof of two essential elements: (1) that she was qualified to

perform the job, and (2) that she experienced an adverse employment action because

of her disability. Because the question whether McLeod experienced an “adverse

employment action” is dispositive in our resolution of this claim, we need not

address whether she satisfied the remaining challenged elements. See TEX. R. APP.

P. 47.1.

The TCHRA provides that an employer commits an unlawful employment

practice if, because of a disability, the employer “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.” TEX. LAB. CODE § 21.051(1). The elements of a disability

discrimination claim are: (1) the individual has a disability; (2) she is qualified for

the job she held; and (3) she was subject to an adverse employment decision because

of her disability. Lara, 625 S.W.3d at 61; Deville v. Univ. of Tex. M.D. Anderson

Dep’t of Aging & Disability Servs., 495 S.W.3d 421, 432 (Tex. App.—Houston [1st

Dist.] 2016, pet. denied); TEX. R. APP. P. 47.1.

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Cancer Ctr., 634 S.W.3d 324, 333 (Tex. App.—Houston [1st Dist.] 2021, no pet.);

Donaldson, 495 S.W.3d at 436.

The TCHRA addresses only “ultimate employment decisions.”7 Anderson,

458 S.W.3d at 644 (quoting Winters v. Chubb & Son, Inc., 132 S.W.3d 568, 575

(Tex. App.—Houston [14th Dist.] 2004, no pet.)); Esparza v. Univ. of Tex. at El

Paso, 471 S.W.3d 903, 909 (Tex. App.—El Paso 2015, no pet.) (“[A]n adverse

employment action requires a significant change in employment status.”). The

statute does not address “every decision made by employers that arguably might

have some tangential effect upon employment decisions.” Anderson, 458 S.W.3d at

644 (quoting Winters, 132 S.W.3d at 575); Elgaghil v. Tarrant Cnty. Junior Coll.,

45 S.W.3d 133, 142 (Tex. App.—Fort Worth 2000, pet. denied) (stating that

TCHRA was “designed to address ultimate employment decisions, not every action

that occurs in the workplace that makes an employee unhappy”).

7

As this Court recently noted, the Fifth Circuit sitting en banc has recently concluded

that limiting Title VII’s anti-discrimination provision only to “ultimate employment

decisions” was inconsistent with the language of Title VII itself, and the court

abandoned this requirement for demonstrating an adverse employment action. See

City of Pasadena v. Poulos, No. 01-22-00676-CV, 2023 WL 7134974, at *10 n.1

(Tex. App.—Houston [1st Dist.] Oct. 31, 2023, no pet.) (mem. op.) (citing Hamilton

v. Dallas Cnty., 79 F.4th 494, 499–502 (5th Cir. 2023) (en banc)). Absent contrary

authority from the Texas Supreme Court or this Court sitting en banc, however, we

continue to be bound by our prior precedent holding that the TCHRA’s anti-

discrimination provision applies only to “ultimate employment decisions.” Id.

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Generally, adverse employment actions involve hiring, granting leave,

discharging, promoting, and compensating employees. Anderson, 458 S.W.3d at

644. Adverse employment actions do not include disciplinary filings, reprimands

from a supervisor, poor performance reviews, hostility from fellow employees,

verbal threats to fire, criticism of the employee’s work, or negative employment

evaluations. Id.

On appeal, the Harris Center construes McLeod’s pleadings as complaining

that she was subject to adverse employment actions when McLaggan issued McLeod

written reprimands and micromanaged her. The Harris Center argues that these

actions are insufficient to constitute adverse employment actions in the context of a

TCHRA disability discrimination claim.

In her petition, McLeod made numerous allegations against McLaggan,

including that McLaggan spoke to McLeod in an impatient, derogatory, and

disrespectful manner; was rude and hostile to her; issued her written reprimands; and

gave her unachievable work tasks intended to result in the termination of her

employment. The Harris Center specifically moved for no-evidence summary

judgment on the adverse employment action element of McLeod’s disability

discrimination claim. Thus, the burden shifted to McLeod to raise a fact question on

this element. See TEX. R. CIV. P. 166a(i); Donaldson, 495 S.W.3d at 432.

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In her summary judgment response, McLeod did not dispute the Harris

Center’s characterization of her pleadings as complaining only of McLaggan’s

written reprimands and micromanagement. Nor does McLeod specifically address

this argument on appeal. Instead, she argues that she was constructively discharged

because McLaggan’s conduct would have compelled a reasonable employee to

resign. McLeod acknowledges, however, that she did not resign; instead, the Harris

Center terminated her employment several months after she filed the charge.

An employee can satisfy the adverse employment action element of a

discrimination claim by proving that she was constructively discharged. Harris Cnty.

Hosp. Dist. v. Parker, 484 S.W.3d 182, 194 (Tex. App.—Houston [14th Dist.] 2015,

no pet.); Winters, 132 S.W.3d at 575. A constructive discharge occurs when an

employer makes working conditions so intolerable that an employee reasonably feels

compelled to resign. Waffle House, Inc. v. Williams, 313 S.W.3d 796, 805 (Tex.

2010); Parker, 484 S.W.3d at 194; Winters, 132 S.W.3d at 575. McLeod focuses on

this reasonableness language, arguing that even though she did not resign,

McLaggan’s conduct would have compelled a reasonable employee to do so.

McLeod’s argument is belied by Green v. Brennan, in which the United States

Supreme Court stated that a Title VII claim of constructive discharge has two

elements: “A plaintiff must prove first that he was discriminated against by his

employer to the point where a reasonable person in his position would have felt

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compelled to resign. But he must also show that he actually resigned.” See 578 U.S.

547, 555 (2016) (emphasis added); see also Pa. State Police v. Suders, 542 U.S. 129,

148 (2004) (“A constructive discharge involves both an employee’s decision to leave

and precipitating conduct[.]”); Sacks v. Tex. S. Univ., 83 F.4th 340, 345 (5th Cir.

2023) (concluding that employee could not bring constructive discharge claim until

she actually resigned); Quality Dialysis, Inc. v. Adams, No. 13-05-086-CV, 2006

WL 1553353, at *4 (Tex. App.—Corpus Christi–Edinburg 2006, no pet.) (mem. op.)

(“To argue constructive discharge [in age discrimination suit under TCHRA], it

follows that the employee must actually resign his employment.”).

McLeod does not dispute that she did not actually resign, and the

uncontroverted summary judgment evidence establishes that she was terminated in

January 2018.8 Because McLeod did not actually resign, we conclude that she cannot

establish constructive discharge as a matter of law. See Green, 578 U.S. at 555

(“[A]n employee cannot bring a constructive-discharge claim until he is

constructively discharged.”); Sacks, 83 F.4th at 345; Adams, 2006 WL 1553353, at

*4. McLeod did not rely on any other evidence to support the element of an adverse

employment action, and thus the trial court was required to grant summary judgment

8

As stated above, McLeod did not exhaust her administrative remedies concerning

her termination, and therefore the termination of her employment cannot serve as

an adverse employment action.

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on McLeod’s disability discrimination claim.9 See TEX. R. CIV. P. 166a(i);

Donaldson, 495 S.W.3d at 432. We conclude that McLeod did not meet her burden

to establish a waiver of the Harris Center’s governmental immunity from her

disability discrimination claim. Accordingly, we hold that the trial court erred by

denying summary judgment on this claim.

3. Retaliation Claim

The Harris Center argues that the trial court erred by denying summary

judgment on McLeod’s retaliation claim because McLeod did not present any

evidence establishing that she engaged in an activity protected by the TCHRA,

which is an essential element of her retaliation claim.

The TCHRA prohibits an employer from retaliating against an employee for

engaging in certain protected activities. TEX. LAB. CODE § 21.055; Anderson, 458

S.W.3d at 647; see also Clark, 544 S.W.3d at 763 (“A retaliation claim is related to,

but distinct from, a discrimination claim, and one may be viable even when the other

is not.”); Davis v. Educ. Serv. Ctr., 62 S.W.3d 890, 894 (Tex. App.—Texarkana

2001, no pet.) (“Retaliation is an independent violation of the TCHRA[.]”). The

9

Based on this conclusion, we do not separately consider the Harris Center’s

alternative argument that McLeod did not exhaust her administrative remedies for

her claim of constructive discharge. See TEX. R. APP. P.47.1. Moreover, because the

Harris Center was entitled to no-evidence summary judgment on McLeod’s

disability discrimination claim, we need not separately consider whether traditional

summary judgment was proper on this claim. See Donaldson, 495 S.W.3d at 432.

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elements of a TCHRA retaliation claim are: (1) the employee engaged in an activity

protected by the TCHRA; (2) she experienced a material adverse employment

action; and (3) a causal link exists between the protected activity and the adverse

employment action. Lara, 625 S.W.3d at 58; Anderson, 458 S.W.3d at 647.

The Harris Center characterizes McLeod’s retaliation claim as alleging three

protected activities: submission of the February 2017 nutritionist’s note requesting

more consistent lunch breaks at work; submission of the March 2017 internal

grievance concerning McLaggan’s first written reprimand; and submission of the

July 2017 request for accommodation due to McLeod’s major depressive disorder.

The Harris Center argues that these three actions do not constitute protected

activities as required to prove retaliation under the TCHRA.10 McLeod does not

dispute the Harris Center’s characterization that these are the only three protected

10

The Harris Center also argues that McLeod did not disclose her major depressive

disorder and anxiety until she filed the July 2017 request for accommodation, and

she did not disclose that she had binge eating disorder until her deposition in the

underlying litigation, and therefore the Harris Center could not have inferred that

McLeod was complaining about any disability or discrimination due to any

disability. But whether the Harris Center knew McLeod had a disability when she

requested an accommodation is immaterial to our analysis of whether she engaged

in protected activity. See Flores v. Tex. Dep’t of Crim. Just., 634 S.W.3d 440, 455

(Tex. App.—El Paso 2021, no pet.) (“Whether TDCJ knew Appellant suffered from

a disability at the time the request was made, if in fact she did, is immaterial to our

analysis of whether she engaged in a protected activity by making an

accommodation request; what matters is whether the accommodation request

notified TDCJ she believed she was being discriminated against for that

disability.”).

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activities alleged in her petition, but she argues that these three activities are

protected under the TCHRA.

TCHRA section 21.055 expressly prohibits retaliating against a person who:

(1) opposes a discriminatory practice; (2) makes or files a charge of discrimination;

(3) files a complaint; or (4) testifies, assists, or participates in any manner in an

investigation, proceeding, or hearing. TEX. LAB. CODE § 21.055; Anderson, 458

S.W.3d at 647. Additionally, the Texas Supreme Court has held that to constitute

protected activity under section 21.055, “the conduct relied on by the employee

‘must, at a minimum, alert the employer to the employee’s reasonable belief that

unlawful discrimination is at issue.’” Lara, 625 S.W.3d at 59 (quoting Clark, 544

S.W.3d at 786). Invoking the TCHRA’s anti-retaliatory provision does not require

“magic words,” but it does require more than merely complaining of “harassment,”

“hostile environment,” “discrimination,” “bullying,” or rude, offensive, or

inappropriate conduct. Clark, 544 S.W.3d at 786–87.

McLeod’s submission of the February 2017 nutritionist’s note did not

constitute a protected activity under the TCHRA. According to the note, the

nutritionist had been addressing McLeod’s “need for consistent eating patterns at

work to help with her overall health and well being,” but inconsistent lunch breaks

were “negatively impacting [McLeod’s] overall health and wellness goals[.]” The

note concluded that it would be “in the best interest of [McLeod’s] health to be able

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to have at least a 30 minute lunch around the same time (give or take 1–2 hours) on

a daily basis while working.”

A request for accommodation can constitute opposition to a discriminatory

practice for purposes of establishing a TCHRA retaliation claim if the request

“alert[s] the employer to the employee’s reasonable belief that unlawful

discrimination is at issue.” See Lara, 625 S.W.3d at 59 (quoting Clark, 544 S.W.3d

at 786). Here, nothing in the nutritionist’s note indicates that McLeod believed

unlawful discrimination was at issue. To the contrary, the note states that consistent

lunch breaks were necessary for McLeod’s “overall health and wellness goals.” Cf.

Metro. Transit Auth. of Harris Cnty. v. Ridley, 540 S.W.3d 91, 99–100 (Tex. App.—

Houston [1st Dist.] 2017, pet. denied) (concluding that employee engaged in

protected activity by making internal complaint stating that supervisor’s criticisms

were due to employee’s race and gender and by making separate complaint stating

that Metro retaliated against employee by refusing to allow her to return after

medical leave with physical restrictions). McLeod does not rely on any other

evidence raising a fact question on whether her request for consistent lunch breaks

constituted actionable protected activity. See TEX. R. CIV. P. 166a(i); Donaldson,

495 S.W.3d at 432. We therefore conclude that the February 2017 nutritionist’s note

did not constitute protected activity as required to establish a prima facie retaliation

claim under the TCHRA.

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We also conclude that McLeod’s submission of the March 2017 internal

grievance against McLaggan did not constitute protected activity. In this grievance,

McLeod complained that McLaggan’s first written reprimand prohibited her from

speaking to coworkers about non-work matters during business hours, which made

McLeod feel “singled out for harassment.” McLeod also complained that she was

reprimanded for taking extended lunch breaks, which caused clients to wait extended

times for their appointments. Finally, McLeod complained that McLaggan had

“repeatedly spoken to [her] in an impatient, derogatory and disrespectful manner in

front of [McLeod’s] peers.” The grievance concluded that “[t]he work environment

has come to feel hostile, based on [McLaggan’s] behavior toward [McLeod]”;

McLeod was addressing the issue with a psychologist; and McLaggan’s conduct

caused McLeod to have work-related stress, anxiety, and depression.

Although filing a complaint is expressly listed in section 21.055, see TEX.

LAB. CODE § 21.055(3), such a complaint only constitutes protected activity if it

alerted the Harris Center that McLeod reasonably believed McLaggan’s conduct

constituted unlawful discrimination. See Lara, 625 S.W.3d at 59. Although magic

words are not required, McLeod’s complaints of a hostile work environment,

harassment, and McLaggan’s rude, inappropriate, and offensive comments are

insufficient to constitute protected activity. See Clark, 544 S.W.3d at 786–87. The

internal grievance did not state or imply that McLaggan’s conduct was motivated by

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unlawful discrimination. See id.; Democratic Schs. Rsch., Inc. v. Rock, 608 S.W.3d

290, 313 (Tex. App.—Houston [1st Dist.] 2020, no pet.) (“Rock complained only of

behavior she considered offensive, but that does not invoke the TCHRA’s anti-

retaliation protection.”).

McLeod argues that the March 2017 internal grievance referenced her prior

request for “a regular and sufficient lunchtime at the office,” and that after making

this request, McLaggan began targeting her and lying about the amount of time she

spent at lunch. We agree with McLeod that her internal grievance mentioned her

nutritionist’s note, but we disagree with the remainder of McLeod’s argument. The

internal grievance merely mentioned the nutritionist’s note in passing. It did not state

that McLaggan targeted McLeod and lied based on the nutritionist’s note or any

disability. Thus, the March 2017 internal grievance did not constitute protected

activity as required to state a prima facie retaliation claim.

Finally, we conclude that McLeod’s submission of the request for

accommodation in July 2017 did not constitute a protected activity. In the request,

specifically identified as a “Request for reasonable accommodation under ADA,”

McLeod expressly disclosed for the first time that she had major depressive disorder

and anxiety. McLeod stated that her symptoms had been “triggered and greatly

exacerbated” since she had begun working under McLaggan’s supervision. The

request also stated that McLaggan regularly spoke to her “in a derogatory,

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disrespectful, inappropriate manner,” making McLeod feel harassed. McLeod

requested “reasonable accommodations to help with her disability—perhaps

reassignment.”

McLeod’s accommodation request attached a letter from a psychologist

stating that the psychologist had been treating McLeod for nearly eighteen years.

According to the letter, McLeod’s “distress” had increased since she began working

under McLaggan’s supervision, and McLeod’s depression and anxiety symptoms

were triggered and exacerbated by the stress caused by McLaggan. The letter

disclosed that McLeod’s recent medical leave was due to her worsening depression

symptoms. The psychologist recommended that if McLeod were to request an

accommodation, including reassignment, the request should be granted.

As stated above, a request for accommodation can constitute opposition to a

discriminatory practice sufficient to state a TCHRA retaliation claim so long as the

request alerts the employer to the employee’s reasonable belief that unlawful

discrimination is at issue. See Lara, 625 S.W.3d at 59. Although the request states

that McLaggan’s conduct caused McLeod’s disability symptoms to worsen, the

request does not state or imply that McLaggan’s conduct was motivated by

discriminatory animus. See id. To the contrary, the request merely complains of

McLaggan’s conduct generally, including McLaggan’s allegedly rude,

inappropriate, and offensive comments and harassment. These statements were

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insufficient to alert the Harris Center to a reasonable belief that McLaggan was

engaged in unlawful discriminatory conduct. See id.

We conclude that McLeod did not present any evidence raising a fact issue on

whether she engaged in a protected activity as required to establish a prima facie

case of retaliation under the TCHRA, and therefore the Harris Center was entitled to

immunity from McLeod’s retaliation claim.11 See id. at 52; Swanson, 590 S.W.3d at

550. Accordingly, we hold that the trial court erred by denying summary judgment

on McLeod’s claim for retaliation under the TCHRA.

We sustain the Harris Center’s sole appellate issue.

11

Because we conclude that the trial court erred by denying summary judgment on

no-evidence grounds on this claim, we need not separately consider whether

traditional summary judgment was proper on this claim. See Donaldson, 495

S.W.3d at 432. Furthermore, because McLeod did not meet her burden to establish

a prima facie case for her claims, we need not consider whether the Harris Center’s

reasons for its actions were pretextual. See TEX. R. APP. P.47.1; Tex. Tech Univ.

Health Scis. Ctr.-El Paso v. Flores, 612 S.W.3d 299, 305 (Tex. 2020).

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Conclusion

We reverse the trial court’s order denying the Harris Center’s combined

second plea to the jurisdiction and motion for summary judgment, and we render

judgment dismissing McLeod’s claims against the Harris Center. See TEX. R. APP.

P. 43.2(c).

April L. Farris

Justice

Panel consists of Justices Goodman, Countiss, and Farris.

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