CAUSE NO. DC CARLOTTA HOWARD IN THE DISTRICT COURT Plaintiff, v. 160th JUDICIAL DISTRICT

Transcription

1 CAUSE NO. DC Filed 12 December 27 P2:15 Gary Fitzsimmons District Clerk Dallas District CARLOTTA HOWARD IN THE DISTRICT COURT Plaintiff, v. 160th JUDICIAL DISTRICT STATE OF TEXAS, TEXAS DEPARTMENT OF FAMILY AND PROTECTIVE SERVICES Defendant. DALLAS COUNTY, TEXAS DEFENDANT S RESPONSE TO PLAINTIFF S MOTION FOR SUMMARY JUDGMENT TO THE HONORABLE DISTRICT JUDGE JIM JORDAN: NOW COMES Defendant THE TEXAS DEPARTMENT OF FAMILY AND PROTECTIVE SERVICES (DFPS) and files this response to Plaintiff s Motion for Summary Judgment. In support, DFPS respectfully offers the following for consideration by the Court: I. SUMMARY OF DEFENDANT S RESPONSE In her motion for summary judgment, Plaintiff offers more argument than evidence to support her single failure-to-accommodate cause of action against Defendant. In telling her woeful tale of mistreatment, Plaintiff omits material facts that would properly place this case in a long line of summary judgment causalities. This is because, as a matter of law, Plaintiff has not shown that she is a qualified individual with a disability who could perform the essential functions of her job (transporting children); that she was disabled or had a record of disability during the timeframe of her 1

2 dismissal; or that she ever requested a reasonable accommodation, as that term is defined under the statute and case law construing it. II. RESPONSIVE ARGUMENT AND RELEVANT RECORD FACTS Throughout her Motion, Plaintiff repeatedly represents that legal conclusions are undisputed. Although it is not clear why Plaintiff does this, it appears to be an attempt to create a fact issue so that summary judgment could not issue in DFPS s favor and Plaintiff would get her jury. Nevertheless, the record clearly reflects unconflicting facts that demonstrate, as a matter of law, Plaintiff cannot maintain her suit against Defendant. That is, even though Plaintiff characterizes the elements of her cause of action as undisputed, the undisputed facts will plainly demonstrate that Plaintiff cannot make out a prima facie case, and summary judgment should issue in Defendant s favor. The first in a series of undisputed issues is Plaintiff s declaration that It is undisputed that Ms. Howard had a disability, that she requested an accommodation, that the Department refused to accommodate her, and that the Department terminated her because she needed an accommodation. See P s MSJ at F. Defendant disputes these legal conclusions and offers the following summary judgment evidence and authority to dispute these legal conclusions: Plaintiff did not meet her evidentiary burden to show that she had a disability To be entitled to relief under the statute, Plaintiff has the burden to show that she was disabled at the time she was dismissed from her position. Griffin v. UPS, 661 F.3d 216, 222 (5th Cir. 2011). 2

3 Plaintiff s motion points to no evidence that she was disabled or that she had a record of a disability in October See Plaintiff s Appendix ( P s App ) at Even in the light most favorable to her, the evidence she relies on in no way indicates that she was disabled in October Rather, the doctors notes she points to simply state that she is not released to work full-time. See P s App at 93, 96, 98, & 101. And the medical records relied upon merely list some symptoms and medical conditions that are not usually associated with being disabled, as that term is commonly understood. See P s App. at 95 (pain, weakness, Rx side effects, [and illegible]); 105 (initial report); D s Ex. R. Indeed, it appears that Plaintiff sustained rather superficial injuries in the December 2008 car accident. See P s App at 105 (listing only a bruised collarbone ). In her motion, Plaintiff lists her impairments as a cervicothorcic sprain (muscle strain in area of neck) 1 ; a lumbosacral dorsal sprain, (muscle strain in the lower back) 2 ; lumbar radiculitis (sciatica) 3 ; cervical radiculitis (radiating pain due to nerve compression 1 Defendant has requested the assistance of one or more experts to determine, in part, the extent of Plaintiff s injuries and to review the status of her condition by October 2009, to rebut Plaintiff s legal conclusion that she was disabled as a matter of law. Given that Plaintiff will not agree to produce medical records in relation to these injuries or a late designation of one or more experts, Defendant resorts to common definitions on the internet. 2 When the lumbar spine is strained or sprained, inflammation of the soft-tissues results. This inflammation causes pain and can cause muscle spasm. People are often surprised at how painful and debilitating a lumbar strain or sprain can be--these are not small injuries. They often force patients to remain in bed for a day or two, and can cause intermittent symptoms for weeks. That said, over 90% of patients are completely recovered from an episode of lumbar muscle strain or sprain within one month. See 3 In many sciatica cases, the specific cause is never identified. About half of affected individuals recover from an episode within a month. Some cases can linger a few weeks longer and may require aggressive treatment. In some cases, the pain may return or potentially become chronic. See 3

4 in the neck); and right and left arm ligament injuries. See P s MSJ at 15. However, it should be undisputed that much more is needed to establish a disability other than the mere assertion of these common conditions, all of which appear to have very short recovery periods. See, e.g., FN 2; see also D s Ex N (anticipated release of January 19, 2009); D s Ex. R (anticipated release of April 16, 2009); D s Ex U (work release never submitted to DFPS, indicating Plaintiff could not drive, but would be able to drive on January 1, 2009); D s Ex. V at 493, 495 (initial report of Plaintiff s treating physician, which was never given to DFPS, indicating that by January 13, 2009, Plaintiff s range of motion was normal, and that injuries were to soft-tissue only and that no further treatment would be necessary after six weeks). To satisfy her burden to prove she was disabled in October 2009, Plaintiff only offers conclusory argument and self-serving testimony that she had a physical impairment that substantially limits one or more of the major life activities. See P s MSJ at 10, 14-15; Zenor v. El Paso Healthcare Sys., Ltd., 176 F.3d 847, 859 (5th Cir. 1999); cf. Martin v. Finch, 415 F.2d 793, 794 (5th Cir. 1969) (self-serving testimony respecting the existence of these impairments inadequate to substantiate the claim of disability). Thus, Plaintiff s evidence that she had a disability in October 2009, is insufficient as a matter of law. Equally insufficient is the lay testimony Plaintiff points to, as it does not support a legal conclusion that she was disabled in October Plaintiff cites to deposition testimony of a former supervisor, Monica McFarland, who indicates that she visited Plaintiff in the hospital in December See P s MSJ at 20; D s Ex. B at 51. Plaintiff 4

5 makes much of Ms. McFarland s concern for Plaintiff, highlighting that she believed Plaintiff to be in pain and struggling with bodily functions at that time. However, the undisputed evidence reflects that this occurred on the day of the accident, December 16, This is important for four obvious reasons: (1) Plaintiff was terminated ten months after the accident; (2) this interaction took place no more than six hours after Plaintiff s car accident [D. Ex. L]; (3) Plaintiff never returned to the job site after the accident, except to meet with the Regional Director Lisa Black in October 2009; and (4) Ms. McFarland was not Plaintiff s supervisor Ms. Ogle was. See D s Ex. B at 19. This evidence is obviously stale and thus insufficient to carry Plaintiff s burden that she was disabled in October Defendant would point the Court to additional indications that Plaintiff was not disabled in October This evidence, which Plaintiff fails to bring to the Court s attention, tells a much different story. By her own admission, Plaintiff testified that by April 2009, she had improved to the point that she could attend school, drive herself to the store and to classes, and that she was feeling much better by April [2009]. See D s Ex. A at 83-84; D s Ex. L; D s Ex. K ( range of motion essentially normal in June 2009). However, Plaintiff avers that her impairments substantially limited [her] ability to perform the major life activities of walking, standing, lifting, bending, and seeing, at least. See P s MSJ at 15 (citing initial injury report). Her injuries, Plaintiff continues, substantially limited the operation of her muscular and nervous systems, which are major bodily functions. See id. However, when DFPS asked Plaintiff to produce a work release in October 2009, she only produced 5

6 a status report releasing Plaintiff to part-time work. See P s App at 93. There was no indication in the release that she was to refrain from any activity. Id. ( activity restrictions left blank); see also P s App at 95-98, 101, 105; D s Ex. R. In short, there is simply no evidence that Plaintiff communicated information to Defendant that would establish that Plaintiff was disabled in October And, as illustrated by the documents produced on Defendant s motion to compel, the treatment Plaintiff was seeking through her insurance carrier was not medically necessary and there were concerns that Plaintiff was malingering, doctor-shopping, faking bad, and exaggerating her injuries in order to obtain pain medication. See D s Ex M. 4 In fact, Plaintiff achieved maximum medical improvement on 12/15/2010, according to her treating physician. See D s Ex. W at 519. Plaintiff s self-serving and testimony that she was disabled in October 2009, is quite plainly belied by the evidence produced. In fact, one document that was never sent to Ms. Ogle or Ms. Black, indicated that Plaintiff was medically able to return to work as early as January 19, 2009, with no restrictions. See D s Ex. N (January 5, 2009, return-to-work release for January 19, 2009); D s Ex. V at 493, 495 (Plaintiff s range of motion normal in January 2009). Furthermore, it must be noted that Plaintiff had never returned to work; thus, there was no occasion for anyone at DFPS to make any kind of judgment as to her abilities or 4 See also, D s Ex. Y (pre-termination letter to Plaintiff s school, requesting accommodations due to serious neurological condition. ). This letter further indicates that Plaintiff had specifically requested a certain accommodation from her school but not from DFPS, and that she was attending school during the time DFPS was holding her job open for her. Plaintiff never communicated to Ms. Ogle or Ms. Black that she was attending school. See also, D s Ex. Q at 236 (noting that Plaintiff had graduated on or about July 19, 2011). 6

7 lack thereof. 5 It would not have mattered anyway, as no one could have returned her to her full-time job without a full-time work release from her physician. Cf. Burch v. City of Nacogdoches, 174 F.3d 615, 620 (5th Cir. 1999) (treating physician indicated that Burch could never be released to perform those duties again). In sum, there is absolutely no evidence in the record that Plaintiff was disabled in October Likewise, the evidence Plaintiff presents to the Court cannot establish that she had a record of disability, either. As noted in Defendant s motion for summary judgment, Plaintiff specifically denies (and thus judicially admits) that the problems related to her eye were not a disability. See D s Ex. A at 40. In addition, Plaintiff makes no mention of any issues relating to her eye in her workers compensation claim form. See D s Ex. O. And in any event, there was no specific request for accommodation relating to her eye, and no medical information was received by Ms. Ogle relating to Plaintiff s eye, except for a fax from and conversation with DARS in July 2009, regarding Plaintiff s blurry vision. See D s Ex. C at 41-43; cf. D s Ex. Y. Plaintiff, furthermore, makes much of the fact that this case is to be construed under the new amendments to the ADA. 6 See P s MSJ at 14. However, Plaintiff makes no effort to show how the amendments would affect this case. Id. at Defendant contends that the amendments are irrelevant to the facts presented in this matter. 5 Where the disability, resulting limitations, and necessary reasonable accommodations, are not open, obvious, and apparent to the employer, the initial burden rests primarily upon the employee... to specifically identify the disability and resulting limitations, and to suggest the reasonable accommodations." Taylor v. Principal Fin. Group, 93 F.3d 155, 165 (5th Cir. 1996). 6 The Texas Legislature adopted Congress amendments to the ADA into the Texas Labor Code. See Prairie View A&M Univ. v. Chatha, 381 S.W.3d 500 n.11 (Tex. 2012). 7

8 The amendments, admittedly, broaden the definition of disability so that coverage embraces those excluded by a narrowing judicial doctrine, which required courts to consider any and all mitigating measures taken by the worker when determining whether the worker was disabled under the statute. EEOC v. Agro Distrib. LLC, 555 F.3d 462 (5th Cir. 2009). This amendment is clearly inapplicable in this case, as Plaintiff never returned to her job, nor took any mitigating measures that would have enabled her to perform the essential functions of her job transporting children. Plainly, Plaintiff cannot meet her burden to show that she is protected under the statute because she has offered no evidence that she was disabled in October Plaintiff s suit must be dismissed. Plaintiff did not meet her evidentiary burden to show that she requested a reasonable accommodation as a matter of law. Plaintiff argues that five communications with DFPS constitute reasonable accommodation requests under the law. Upon closer examination, however, the Court can easily conclude that none of the evidence she points to is supportive in this regard. Furthermore, the only exhausted claim relates to the verbal request allegedly made to Lisa Black in October See D s Ex. I. 1. First, Plaintiff asserts that a letter to Monica McFarland in January 2009, amounts to an accommodation request under the law. See P s App at 123. It should be very easy for the Court to conclude that this letter is not a reasonable accommodation request because (1) Ms. McFarland was not Plaintiff s supervisor at the time; (2) Plaintiff only 8

9 makes statements in the letter, and in no way asks for anything 7 ; (3) Plaintiff does not submit a form, which she is required to do under policy [see P s App at 121]; and (4) even if this letter were construed to be a reasonable accommodation request, it was cut off by Plaintiff s hostile subsequent communications with her supervisor, Nicole Ogle, [D s Ex. A at 87-88, ; D s Ex. P], wherein Plaintiff repeatedly tells Ms. Ogle that she has not been released to work at all. 8 Similarly, even if this Court were to consider the January 6, 2009, letter to Ms. McFarland as a request for an accommodation, it would be cut off by the intervening doctors notes indicating that Plaintiff could not return to work at all. See P s App at 96, Finally, this interaction cannot be considered a reasonable accommodation request because Plaintiff did not complain of this in her administrative charge. See Ex. I. 2. The second set of facts Plaintiff construes as a reasonable accommodation request is a verbal request to Nicole Ogle in June See P s MSJ at 6. Plaintiff alleges that, during a phone conversation initiated by Ms. Ogle, Plaintiff asked to just sit at the office and do stuff and do the visits. D s Ex. A at 72. This request, if believed by a jury, is not 7 An employee who needs an accommodation because of a disability has the responsibility of informing her employer. Taylor, 93 F.3d at 165. The employee must explain that the adjustment in working conditions or duties she is seeking is for a medical condition-related reason, but the employee does not have to mention the ADA or use the phrase reasonable accommodation. Plain English will suffice. EEOC v. Chevron Phillips Chem. Co., LP, 2009 U.S. App. LEXIS (5th Cir. 2009). 8 Under the ADA, once the employee presents a request for an accommodation, the employer is required to engage in the interactive process so that together they can determine what reasonable accommodations might be available. See, e.g., Cutrera v. Bd. of Supervisors, 429 F.3d 108, 113 (5 th Cir. 2005). However, because the responsibility for fashioning a reasonable accommodation is shared between the employer and the employee, the employer is not liable under the ADA if the breakdown in the interactive process is traceable to the employee. Loulseged v. Akzo Nobel Inc., 178 F.3d 731, 736 (5th Cir. 1999). Plaintiff admits being hostile toward Ms. Ogle when Ms. Ogle called Plaintiff. Further, a breakdown in the process naturally occurred each time Plaintiff told Ms. Ogle that Plaintiff could not return to her job at all. 9

10 a reasonable accommodation request as a matter of law. It is well-settled that a defendant need not create a new position for a worker or provide light duty work that would make other employees duties harder. See Turco v. Hoechst Celanese Chem. Group, 101 F.3d 1090, 1094 (5th Cir. 1996). Plaintiff has not shown that there was any legal duty whatsoever to create a position for Plaintiff where she could just sit around the office and do stuff. D s Ex. A at 72. In Burch v. City of Nacogdoches, 174 F.3d 615 (5th Cir. 1999), the district judge concluded and the Fifth Circuit agreed that the ADA does not require an employer to reassign or give light duty to an employee who cannot perform the essential functions of her position. The law in this area is crystal clear: an otherwise qualified person is one who is able to meet all of the program s requirements in spite of his handicap. Id. at 619. Burch was a firefighter who was seriously injured rescuing another firefighter. It was undisputed that Burch s injuries precluded him from performing the essential functions of a firefighter after the accident. Burch argued that his employer was required under the ADA to provide him with a different position or a light duty position. The federal courts disagreed, noting that for the accommodation of a reassignment to be reasonable, it is clear that a position must first exist and be vacant. Id. at 620. Plaintiff offers no evidence that she asked Ms. Ogle (or Ms. Black) for any other existing or vacant position or explained what duties she could or could not perform. Thus, the law did not require DFPS to employ Plaintiff to sit around the office and do stuff, or otherwise relieve her of the essential functions of the HST job. 10

11 3. In a third point, Plaintiff argues that DFPS had an independent duty to suggest accommodations during a telephone call Ms. Ogle made to Plaintiff in July See P s MSJ at 6-7. Plaintiff s position is that, even though Plaintiff made no verbal request during this July call initiated by Ms. Ogle, somehow, it was a violation of the statute for Ms. Ogle not to suggest accommodations to the absence of a request. Not only was this non-request not exhausted, the Court can conclude it produced no duty for Ms. Ogle to suggest accommodations. With respect to this non-request and the alleged request in June, it was incumbent upon Plaintiff to make some effort to suggest the positions she would be able to perform full-time. See Burch, 174 F.3d at 617 (employee did not offer any suggestions or determine which job he could perform; doctor s note also lacking in such detail). To be entitled to relief under the statute, an employee must suggest measures that would allow her to perform her essential job functions. Id. at 621 ( the record does not offer a single example of Burch s asking the City to transfer him to a specific light-duty job, or even implying that he wanted one. ). And in any event, Ms. Ogle took the affirmative step in July of faxing Plaintiff a copy of the proper form to submit to her treating physician. See D s Ex. X. Further, cases construing the ADA have concluded that a request for light duty and part-time employment are not reasonable accommodations requests. See Turco v. Hoechst Celanese Chem. Group, 101 F.3d at 1094 (an employer is not required to create light duty jobs to accommodate disabled employees); Daugherty v. City of El Paso, 56 F.3d 695, 700 (5th Cir.1995) ( an employer] is not required to fundamentally alter its 11

12 program. Nor is the [company] required to find or create a new job for the [plaintiff] ) (quoting Chiari v. City of League City, 920 F.2d 311, 318 (5th Cir.1991). Ms. Black testified that Plaintiff s position is a full-time position; that no other Unit operated with a part-time HST; and that an investigator was once allowed to work part-time due to a car accident, but the arrangement was ultimately unsuccessful and the employee voluntarily separated from her position. See D s Ex. G at 77-78; D s Ex. B at 17-18; cf. Davis v City of Grapevine, 88 S.W.3d 748, (Tex. App. Fort Worth 2006, pet. denied); Hammond v. Jacobs Field Servs., 2012 U.S. App. LEXIS (5th Cir. Dec. 2012) (finding no violation of ADA where employer told employee that no light-duty position was available and employee could not return to work until he obtained a full medical release). And again, it would be irrelevant in any event because Plaintiff still had not produced a work-release to perform any job by July Furthermore, Plaintiff became hostile with Ms. Ogle, and told Ms. Ogle that she would not be making the decision to return to work that only her doctor could make that decision. See Ex. A at ; D s Ex. P. Plaintiff also failed to complain of the June/July interactions in her administrative charge. See D s Ex. I. 4. Plaintiff s fourth (and also unexhausted) assertion that she made a reasonable accommodation request came in the form of a letter faxed in July 2009, by a DARS employee, April Gonzalez. See P s MSJ at 7; D s Ex. D at 115 & 119. Although the letter seeks accommodations for Plaintiff s eye, it does not specify what accommodations would be beneficial to Plaintiff s pleaded and exhausted issues relating to her December 2008, injuries. See P s App at 108 (Ms. Ogle s to Larry Barnes indicating that 12

13 DARS had contacted her and requested accommodations on behalf of Plaintiff, but DARS was not able to articulate what accommodations would permit her to transport children other than special glasses ). There is simply no logical reason that a person suffering from pain due to injuries of the back and neck, as asserted by Plaintiff, would be benefited by special glasses. And, Plaintiff offers no evidence and no argument to support a claim that a failure on the part of DFPS to provide special glasses would have allowed Plaintiff to perform the essential functions of her job, even on a part-time basis. And, again, even if this letter from a January 2009 eye exam, with a post-it note on it from April 2009, constitutes a reasonable accommodation request, the request was subsequently cut off by doctors notes indicating that Plaintiff could not return to her position. See P s App at 96, Lastly, the interaction with Ms. Black and Plaintiff in October 2009, reflected a request and a denial of use of leave rather than a request for a reasonable accommodation under the law. As pointed out by Ms. Black, Plaintiff never asked for a reasonable accommodation during their meeting. See Ex. G at Rather, Plaintiff asked to use annual leave to make up for the time she would miss due to her open-ended part-time work release. In this regard, DFPS was not required to permit the use of open-ended leave in any event as an accommodation. See Amsel v. Tex. Water Dev. Bd., 464 Fed. Appx. 395, 400 (5th Cir. 2012) (quoting Rogers v. Int l Marine Terminals, Inc., 87 F.3d 755, (5th Cir. 1996) ( Nothing in the text of the reasonable accommodation provision requires an employer to wait an indefinite period for an accommodation to achieve its intended effect. ). 13

14 Moreover, use of annual leave must be approved by management. See D s Ex G at This exact issue was considered and rejected by the Fifth Circuit, not only in Amsel, but also in Griffin v. UPS. Griffin submitted a letter to UPS, advising that Griffin should be eased back into full-time work over the course of three weeks. See 661 F.3d at 224. Much like the facts in Griffin, Plaintiff here failed to provide more detail from her doctor about the restriction, i.e., when the need to work part-time would end. Id. at 225 (holding that none of the information Griffin provided UPS indicated that his requested accommodation was necessary for the management of his diabetes); see also Amsel v. Tex. Water Dev. Bd., 464 Fed. Appx. At 400 ( Indefinite leave is not a reasonable accommodation. ). Mindful that Plaintiff had already exhausted all of her sick leave and FMLA leave, and that she had elected to use only her sick leave under the worker s compensation rules, DFPS still held Plaintiff s job open for an additional four months on a leave-without-pay basis. See P s App at 103. Only until all of these events occurred did Ms. Black make the decision to terminate Plaintiff s employment. Having held Plaintiff s job for 10 months; having received no explicit information about Plaintiff s physical condition; having no work-release to return to her full-time job; and after fruitlessly attempting to work with Plaintiff over the preceding months to determine her health status, DFPS did not violate any laws by refusing to allow Plaintiff to use her vacation leave in October Accordingly, Plaintiff is not entitled to relief as a matter of law. Plaintiff is not entitled to relief under the statute because she could not perform the essential functions of her position, with or without a reasonable accommodation 14

15 There is no evidence in the record to support that Plaintiff was able to transport children, an essential function of the position. Even Plaintiff admitted that 75% of the HST job was driving. See D s Ex. A at 68:24-25; cf. D s Ex. T at 327 (Plaintiff s complaint to Texas Department of Insurance, noting that 95% of her job was driving). Although Plaintiff testifies that she was feeling better in April 2009, and was able to drive herself around town and take the bus and the train, there is no denying that the medications as she was on would create a hazard to herself and others. See D s Ex. Q; Turco,101 F.3d at 1094 ( Turco is not only unqualified because he cannot perform the essential functions of his job, but he is also unqualified due to the safety risk that he imposes upon himself and others. ). Plaintiff admits that driving on the drugs she was taking would have created unnecessary risk to the children in DFPS custody and to others on the road. D s Ex. A at ; D s Ex. Q. The evidence is truly undisputed that Plaintiff was in no condition to transport children in a motor vehicle, as she readily admitted in her deposition. See D s Ex. A at 103 ( That would be a liability. ); D s Ex. Q. Thus, a modification to work part-time would not have ameliorated the risk associated with operating a motor vehicle under the influence of major psychotropic drugs on public roads. See Turco, 101 F.3d at In addition to the medication Plaintiff was taking after the accident, (and continues to take until this day), the evidence shows that Plaintiff was taking strong musclerelaxing medication on the day of and prior to the accident. See D s Ex. L (hospital release reflecting that Plaintiff s current medications included a strong muscle relaxer and 15

16 anti-depressant). Thus, as the undisputed facts demonstrate, Plaintiff was unable to perform the essential functions of her position transporting children. Accordingly, Plaintiff s Motion for Summary Judgment must be denied. See Adams v. Artco-Bell Corp., 2010 Tex. App. LEXIS 2774 (Tex. App. Austin 2010, (Artco-Bell conclusively negated the qualification elements of plaintiff s prima facie accommodation claim by showing that no accommodation could be made to enable plaintiff to perform the essential functions of the position). Having failed to make out a prima facie case that she disabled as a matter of law; that she requested a reasonable accommodation as a matter of law; and that she was qualified for the HST position, Plaintiff s lawsuit must be dismissed. See Turco, 101 F.3d at III. CONCLUSION Plaintiff s claim that DFPS refused a reasonable accommodation should be denied as a matter of law. The record facts undisputably show that DFPS made repeated attempts to engage Plaintiff in an interactive process. Contrary to Plaintiff s claims, DFPS worked with Plaintiff by keeping her job open several months past any legal duty to do so; repeatedly calling Plaintiff for information and engaging in return-to-work dialog, and providing Plaintiff with the proper work-release form; giving Plaintiff notice of the recommendation to terminate and an opportunity to respond to it, and giving Plaintiff an additional chance to submit a more specific work release. These are the efforts taken on the part of DFPS to work with Plaintiff, even though there was no legal duty to do so because Plaintiff did not provide information to DFPS that she was disabled or that she could perform the essential functions of her job. 16

17 WHEREFORE, PREMISES CONSIDERED, DFPS prays that the Court grant its cross-motion for summary judgment and deny Plaintiff s motion for summary judgment in all respects. Respectfully Submitted, GREG ABBOTT Attorney General of Texas DANIEL T. HODGE First Assistant Attorney General DAVID C. MATTAX Director of Defense Litigation JAMES BEAU ECCLES General Litigation Division Chief /s/ Madeleine Connor MADELEINE CONNOR Texas State Bar No Assistant Attorney General General Litigation Division P. O. Box 12548, Capitol Station Austin, Texas Phone No. (512) Fax No. (512) ATTORNEYS FOR DEFENDANT CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing document has been sent via Certified Mail, Return Receipt Requested, and electronic mail, on this the 27th day of December, 2012, to: Colin Walsh, LAW OFFICE OF ROB WILEY, P.C San Jacinto Blvd., Ste. 401, Austin, Texas 78701, (512) (FAX). /s/ Madeleine Connor MADELEINE CONNOR Assistant Attorney General 17

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