CAUSE NO PLAINTIFF S REPLY TO DEFENDANT S RESPONSE TO PLAINTIFF S MOTION FOR SUMMARY JUDGMENT. Respectfully submitted, ROB WILEY, P.C.

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1 CAUSE NO Filed 12 December 31 P4:25 Gary Fitzsimmons District Clerk Dallas District CARLOTTA HOWARD, v. Plaintiff, STATE OF TEXAS, TEXAS DEPARTMENT OF FAMILY AND PROTECTIVE SERVICES Defendant. IN THE DISTRICT COURT 160th JUDICIAL DISTRICT DALLAS COUNTY, TEXAS PLAINTIFF S REPLY TO DEFENDANT S RESPONSE TO PLAINTIFF S MOTION FOR SUMMARY JUDGMENT Respectfully submitted, ROB WILEY, P.C. Texas Bar No Board Certified Specialist, Labor & Employment Law, Texas Board of Legal Specialization Colin Walsh Texas Bar No LAW OFFICE OF ROB WILEY, P.C San Jacinto Blvd, Ste 401 Austin, TX Telephone: Facsimile: cwalsh@robwiley.com ATTORNEYS FOR PLAINTIFF JUDGMENT Page i

2 TABLE OF CONTENTS TABLE OF CONTENTS ii TABLE OF AUTHORITIES iv SUMMARY OF THE ARGUMENT 1 ARGUMENTS AND AUTHORITIES 3 I. The Department does not apply the correct definition of disability in its response. 3 A. The Amendments changed both the substance and focus of disability analysis in every case 3 B. All cases applying the pre-amendments definition of disability are inapplicable to this case. 5 II. Applying the correct standard, the Department s own evidence establishes that Ms. Howard has a disability and the department knew of her limitations. 6 III. The Department s own response establishes that Plaintiff requested a reasonable accommodation. 8 IV. The Department s own response establishes that Ms. Howard could perform the essential functions of her job. 9 V. The Department attempts to distract this Court from the uncontested facts establishing that Defendant failed to accommodate Ms. Howard by attacking Ms. Howard s character. 11 CONCLUSION 12 CERTIFICATE OF SERVICE 13 JUDGMENT Page ii

3 CASES TABLE OF AUTHORITIES Chevron U.S.A. Inc. v. Echazabal, 536 U.S. 73 (2002) Cohen v. CHLN, Inc., 2011 WL (E.D. Pa. July 13, 2011)... 7 Davis v. City of Grapevine, 188 S.W.3d 748 (Tex. App. Fort Worth 2006, no pet.). 2, 11 Dube v. Texas Health and Human Services Com n, 2011 WL (W.D. Tex. Sept. 6, 2011)... 5 EEOC v. Chevron Phillips Chem. Co., 570 F.3d 606 (5th Cir. 2009)... 8 Feldman v. Law Enforcement Associates Corp., 2011 WL (E.D.N.C. Mar.10, 2011)... 5, 7 Meinelt v. P.F. Chang s China Bistro, Inc., 787 F. Supp. 2d 643 (S.D. Tex. 2011)... 5 Molina v. DSI Renal, Inc., 840 F.Supp.2d 984 (W.D. Tex. 2012)... 5 Norton v. Assisted Living Concepts, Inc., 786 F. Supp. 2d 1173 (E.D. Tex. 2011)... 4 Patton v. ecardio Diagnostics LLC, 793 F. Supp. 2d 964 (S.D. Tex. 2011)... 5 STATUTES 42 U.S.C U.S.C.A Acts 2009, 81st Leg., R.S., Ch. 337, Sec. 1, eff. September 1, ADA AMENDMENTS ACT OF 2008, PL , September 25, 2008, 122 Stat Pub. L , 2(b)(5), 122 Stat (Sep. 25, 2008)... 4 Tex Lab. Code Ann Tex. Lab. Code Ann Tex. Lab. Code Ann , 4 JUDGMENT Page iii

4 RULES Tex. R. Evid REGULATIONS 29 C.F.R , 7, Fed. Reg JUDGMENT Page iv

5 CAUSE NO CARLOTTA HOWARD, v. Plaintiff, STATE OF TEXAS, TEXAS DEPARTMENT OF FAMILY AND PROTECTIVE SERVICES Defendant. IN THE DISTRICT COURT 160th JUDICIAL DISTRICT DALLAS COUNTY, TEXAS PLAINTIFF S REPLY TO DEFENDANT S RESPONSE TO PLAINTIFF S MOTION FOR SUMMARY JUDGMENT TO THE HONORABLE DISTRICT COURT JUDGE: NOW COMES Plaintiff, Carlotta Howard, and files this, her Reply to Defendant s Response to Plaintiff s Motion for Summary Judgment, and respectfully shows the following: SUMMARY OF THE ARGUMENT The Texas Department of Family and Protective Services ( the Department ) has failed to create a genuine issue of material fact regarding any of the elements of Ms. Howard s failure to accommodate claim. Under the relevant disability discrimination laws, Defendant s own evidence proves there is no dispute that the Department failed to reasonably accommodate Ms. Howard, in violation of Chapter 21 of the Texas Labor Code. JUDGMENT Page 1

6 An employer that fails to make reasonable accommodations to the known physical and mental limitations of an otherwise qualified individual with a disability violates chapter 21 of the Texas Labor Code ( Labor Code ). Tex Lab. Code Ann A plaintiff who claims failure to reasonably accommodate is entitled to summary judgment when there is no genuine dispute that: (1) she is disabled within the meaning of the Labor Code, (2) she was otherwise qualified for her job, (3) the employer knew of her limitations but failed to provide an accommodation requested by the employee, (4) the employee suffered an adverse action, and (5) the reasonable accommodation was not unduly burdensome. See Davis v. City of Grapevine, 188 S.W.3d 748, 758 (Tex. App. Fort Worth 2006, no pet.). Here, it is clear that the Department failed to reasonably accommodate Ms. Howard. Based on the evidence presented by both Plaintiff and Defendant, it is undisputed that Ms. Howard was an otherwise qualified employee with a disability, that the Department knew of Ms. Howard s physical limitation, and that it failed to provide an accommodation for her. Finally, it is undisputed that the Department s failure to accommodate Ms. Howard resulted in her termination. Therefore, summary judgment must be granted in Plaintiff s favor. JUDGMENT Page 2

7 ARGUMENT AND AUTHORITIES I. The Department does not apply the correct definition of disability in its response. This is a straightforward failure to accommodate case analyzed under the current definition of disability contained in the Texas Labor Code. The Department does not dispute that this definition adopts the 2008 amendments to the Americans with Disabilities Act. Yet, Defendant argues that the disability discrimination statute somehow does not apply to this disability discrimination case. (See Def. Resp. at 7: Defendant contends that the amendments are irrelevant to the facts presented in this matter. ). This is incorrect. The Texas Labor Code was amended to reflect the ADAAA effective September 1, See Acts 2009, 81st Leg., R.S., Ch. 337, Sec. 1, eff. September 1, Carlotta Howard was terminated on October 16, (See Def. Exhibit F.) Therefore, the new definitions apply to Ms. Howard s disability discrimination claim. A. The Amendments changed both the substance and focus of disability analysis in every case. The Department s argument that the amendments only directed courts to determine a disability without regard to mitigating measures is contradicted by the statute itself and its available case law. As discussed at length in Plaintiff s Motion for Summary Judgment and Plaintiff s Response to Defendant s Motion, the amendments adopted by Texas actually changed both the substance and focus of disability analysis. (See Pl. Br. at 14 and Pl. Resp. at ) JUDGMENT Page 3

8 First, in contrast to the pre-adaaa standards requiring strict, demanding, and severe application of the definition of disability, the law now requires that the definition of disability be construed in favor of broad coverage of individuals... to the maximum extent allowed by [Chapter 21 of the Texas Labor Code]. Tex. Lab. Code Ann (a)(1); see also Acts 2009, 81st Leg., R.S., Ch. 337, Sec. 1, eff. September 1, This change is not limited to the fact that an employee s mitigating measures are now irrelevant for the purpose determining coverage under the law. Instead, the standard for all of the elements necessary to establish the existence of a disability were lowered in order to cover a broad range of impairments, including those that may be episodic or even in remission. Tex. Lab. Code Ann (a)(2) As shown in Plaintiff s Motion for Summary Judgment and Plaintiff s response to Defendant s own motion, the amendments adopted by Texas now emphasize that the term substantially limit under the actual disability prong shall be interpreted as broadly as possible. Norton v. Assisted Living Concepts, Inc., 786 F. Supp. 2d 1173, 1185 (E.D. Tex. 2011). It has also directly abrogated the significantly restricts standard. ADA AMENDMENTS ACT OF 2008, PL , September 25, 2008, 122 Stat 3553; 29 C.F.R (j)(ii) At the same time, the amendments dramatically expanded the term major life activity by including major bodily functions. Tex. Lab. Code Ann (11-a). Second, the amendments adopted by Texas also changed the focus of the disability analysis to whether employers violated the Act. After Texas adopted the JUDGMENT Page 4

9 amendments, the primary inquiry in disability discrimination cases became whether [covered entities] have complied with their obligations, and to convey that the question of whether an individual s impairment is a disability the amendments adopted by Texas have lowered under the ADA should not demand extensive analysis. Pub. L , 2(b)(5), 122 Stat (Sep. 25, 2008); 42 U.S.C (emphasis added). The amendments adopted by Texas make it clear that the focus is no longer on the strict determination of an employee s disability. Thus, the amendments adopted by Texas broaden the scope of disability discrimination and affect every claim brought under them. B. All cases applying the pre-amendments definition of disability are inapplicable to this case. The amendments adopted by Texas were such a huge shift in disability discrimination law that cases applying pre-amendments standards of disability are not applicable and of little, if any, precedential value. Molina v. DSI Renal, Inc., 840 F.Supp.2d 984, 993 (W.D. Tex. 2012); Patton v. ecardio Diagnostics LLC, 793 F. Supp. 2d 964, 968 (S.D. Tex. 2011); Meinelt v. P.F. Chang s China Bistro, Inc., 787 F. Supp. 2d 643, 651 (S.D. Tex. 2011) (P.F. Chang s relies on pre- ADAAA cases to argue that Meinelt s brain tumor is not a disability...[but] does not, however, explain the relationship between that case law and the statutory amendments. ); Dube v. Texas Health and Human Services Com n, 2011 WL , at *4 (W.D. Tex. Sept. 6, 2011) ( Defendant relies upon cases applying the much narrower, pre- ADAAA definition of regarded as disabled, which are not relevant. ); Feldman v. Law Enforcement Associates Corp., 2011 WL , at *7 n.3 (E.D.N.C. Mar.10, JUDGMENT Page 5

10 2011) ( [A]ll of the cases cited by LEA, even those cases decided after the effective date of the ADAAA, involved alleged discrimination that took place before the ADAAA went into effect.... As a result, the cases cited by LEA carry little, if any, precedential weight with respect to the issue of whether the plaintiffs in this case were disabled under the ADAAA. ). Therefore, the Department s bold assertion that the amendments are irrelevant to the facts presented in this matter is without merit. (See Def. Resp. at 7). II. Applying the correct standard, the Department s own evidence establishes that Ms. Howard has a disability and the department knew of her limitations. As explained thoroughly in Plaintiff s Motion for Summary Judgment and its Response to Defendant s own affirmative motion, Ms. Howard has provided more than enough evidence to show that she has a disability and that the Department knew about her physical limitations. (See Pl. Br. at 15; Pl. Resp. at 19). In addition to Plaintiff s evidence, the Department s own evidence shows that Ms. Howard sustained many injuries and that the Department had notice of them. (See Def. Resp. at 3-4; Def. Ex. D, E, F, H, K, M, N, O, Q, R, S, U, W, Y) Defendant has also conceded that there are several medical records that show Ms. Howard s symptoms and medical conditions at the time she made her accommodation requests. (See Def. Resp. at 3 ( [T]he medical records relied upon merely list some symptoms and medical conditions.... ). This is more than enough to show that Ms. Howard had a disability and the department knew of her limitations. JUDGMENT Page 6

11 Because the Department cannot dispute the existence of these facts, the Department argues without legal support that common and temporary injuries cannot be disabilities. 1 Both the ADAAA and the EEOC regulations make it clear that this is incorrect. First, Defendant misunderstands the nature of Plaintiff s physical impairments, which have lasted many years. The summary judgment evidence submitted by Defendant shows that Ms. Howard has never fully recovered from her injuries. (See Def. Ex. W at Howard (stating five impairments constituting Ms. Howard s final diagnosis and giving her a whole person permanent impairment rating of 10%). However, this is irrelevant because the Amendments adopted by Texas do not have a duration requirement for actual disabilities. Under the Amendments adopted by Texas there is no minimum required duration for an impairment to be considered a disability. Cohen v. CHLN, Inc., 2011 WL , at *8 (E.D. Pa. July 13, 2011) ( As discussed above, the ADAAA mandates no strict durational requirement for plaintiffs alleging an actual disability. ); Feldman v. Law Enforcement Associates Corp., 2011 WL , at *9 (E.D.N.C. Mar. 10, 2011) ( [E]ven if Feldman s TIA only temporarily limited [his] ability to work, the stringent requirements of Toyota Motor may be rejected by the amended statute in favor of a more inclusive standard. ). An impairment that lasts 1 Plaintiff will not discuss the Department s argument that common afflictions cannot be disabilities. Almost 10% of the US population has diabetes, which is a disability under the ADAAA. (available at Similarly, millions of adults and children have cancer. Defendant s argument, if true, would deny protection under the law to almost 40 million Americans. JUDGMENT Page 7

12 less than six months can now be substantially limiting. 29 C.F.R (j)(1)(ix); See also 76 Fed. Reg. at (a disability need not last as long as six months). Because Defendant s own evidence establishes that there is no genuine issue of material fact for this element, summary judgment should be granted in favor of Ms. Howard on the issue of disability. III. The Department s own response establishes that Plaintiff requested a reasonable accommodation. While Ms. Howard requested and was denied a reasonable accommodation on five different occasions, a violation of Chapter 21 of the Labor Code occurs even if only one request is made and denied. 2 Here, the Department s own response admits that Ms. Howard was terminated because she asked for an accommodation from Lisa Black in September On page 13 of the Department s response, it states, Plaintiff asked to use annual leave to make up for the time she would miss due to her open-ended parttime work release. First, the request was not open-ended. As established by an sent to Ms. Black by Ms. Black s assistant, Ms. Howard was only requesting an accommodation for 2 to 3 weeks. (See October 12, to Ms. Black at Pl. Appx 106). The goes on to state that Ms. Howard offered to get a doctor s note saying as much. (See Id.). Therefore, The Department s argument that Ms. Howard failed to provide more detail from her doctor about that restriction, i.e., when the 2 Each of these occasions is discussed in both Plaintiff s original motion for Summary Judgment and in Plaintiff s response to Defendant s Summary Judgment Motion. (See Pl. Br. at 6-10; PL. Resp. at 7-10). JUDGMENT Page 8

13 need to work part-time would end is patently false. (See Def. Resp. at 14; October 12, to Ms. Black at Pl. Appx 106). Second, under the very standard quoted by the Department, this request is sufficient to establish a request for a reasonable accommodation under the law. (See Def. Resp. at n. 7, citing EEOC v. Chevron Phillips Chem. Co., 570 F.3d 606, 621 (5th Cir. 2009): 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. ). Thus, under the Department s own interpretation of the facts and law applicable to this case, Ms. Howard has established that she asked for a reasonable accommodation and was refused. Summary judgment should be granted in favor of Ms. Howard on the issue of reasonable accommodation. IV. The Department s own response establishes that Ms. Howard could perform the essential functions of her job. Finally, Ms. Howard could perform her essential functions with the reasonable accommodation of a modified work schedule. Both Ms. Howard s supervisor and the regional director for the Department have stated that Ms. Howard would have been able to perform the essential functions of her job with a modified work schedule. (Black Dep. in Pl. Appx. at 45-46; Ogle Dep. in Pl. Appx at 65). Defendant does not dispute this fact. Instead, the Department argues that Ms. Howard was not qualified because she was on medication and may not be able to drive. As previously explained, JUDGMENT Page 9

14 driving was only one of Ms. Howard s duties. Her job also required supporting Department investigators through several non-driving functions. (See Ogle dep. in Pl. Appx at 57). Ms. Howard could have completed those other functions easily with her accommodation. Furthermore, as the Department repeatedly points out, Ms. Howard began driving in April 2009 for short periods of time. (See Def. Resp. at 5: 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.... ; Def. Resp. at 15: Plaintiff testifies that she was feeling better in April 2009, and was able to drive herself around town.... ; see also Def. Ex. S, a doctor s note: We recommend that she drive no more than 30 minutes for 2 hours. ). Thus, Plaintiff could have performed her driving duties with an accommodation. Had the Department engaged Ms. Howard in an interactive process to determine a reasonable accommodation, they could have asked her to spend a percentage of her modified workweek driving. Again, the Department own interpretation of the facts establishes that there is no genuine dispute as to any material fact regarding this element. Thus, summary judgment should be granted in Plaintiff s favor on the issue of otherwise qualified. V. The Department attempts to distract this Court from the uncontested facts establishing that Defendant failed to accommodate Ms. Howard by personally attacking Ms. Howard s character. JUDGMENT Page 10

15 As shown above, the evidence as submitted by Department establishes each of the elements of a failure to accommodate case. Because Department cannot contest the facts as established by its own evidence, Defendant resorts to unsupported accusations against Ms. Howard. The Department has now three times accused Ms. Howard of malingering, doctor-shopping, faking bad, and exaggerating her injuries in order to obtain pain medication. (Def. Resp. at 6). Until now, Plaintiff has refrained from dignifying such inflammatory statements with a response. However, because Department doggedly persists in making such serious accusations, Plaintiff now feels compelled to respond. 3 First, these outrageous accusations are irrelevant to whether or not Ms. Howard had a disability and to whether or not she was accommodated by Defendant. See Davis, 188 S.W.3d at 758 (listing the elements of a failure to accommodate case). Second, these accusations consist of inadmissible character evidence under Texas Rule of Evidence 404, which prohibits evidence of a person s character for the purpose of showing action in conformity therewith. Tex. R. Evid Third, these accusations are not even supported by the evidence cited to by the Department. Defendant cites only to Exhibits M and Y for these statements. (See Def. Resp. at 6). Exhibits M and Y consist of 79 pages of doctor s notes and 3 To the extent that such accusations can be interpreted as the affirmative defense of direct threat, that defense is inapplicable to failure to accommodate cases. 42 U.S.C.A ; Chevron U.S.A. Inc. v. Echazabal, 536 U.S. 73 (2002); 29 C.F.R At any rate, Defendant failed to affirmatively plead this defense. JUDGMENT Page 11

16 doctor s reports. All but one of those reports was written after Ms. Howard was terminated. The one report written before Ms. Howard was terminated concerns withdrawing a request for precertification of a medical evaluation because precertification was not required for that evaluation. (See Def. Ex. M at Howard 352). Defendant fails to cite to a single specific report, page, or medical diagnosis within Exhibits M or Y that would negate any of the actual elements that must be proved in this case or could establish the accusations alleged against Plaintiff. (See Def. Resp. at 6). Furthermore, every single report and doctor s note contained in Exhibits M and Y do not address whether Ms. Howard had a disability. Instead, they show the degree to which her disability substantially impaired her. (See Def. Exhibits M and Y). Therefore, not only do these exhibits not support the Department s contentions, but they actually further establish that Ms. Howard was disabled. CONCLUSION For the foregoing reasons, there is no genuine dispute with regards to each element of Plaintiff s failure to accommodate claim. Therefore, Plaintiff respectfully requests this court enter summary judgment in favor of Plaintiff and set a hearing to determine damages and attorneys fees. Respectfully submitted, ROB WILEY, P.C. By: _/s/ Colin Walsh Robert J. Wiley Texas Bar No Board Certified Specialist, Labor & Employment JUDGMENT Page 12

17 Law, Texas Board of Legal Specialization Colin Walsh Texas Bar No LAW OFFICE OF ROB WILEY, P.C San Jacinto Blvd., Ste 401 Austin, TX Telephone: Facsimile: ATTORNEYS FOR PLAINTIFF CERTIFICATE OF SERVICE I certify that on December 31, 2012, I sent a true and correct copy of the foregoing to counsel for State of Texas, Texas Department of Family and Protective Services, Madeleine Connor, PO Box 12548, Austin, TX via certified mail. /s/ Colin Walsh Colin Walsh JUDGMENT Page 13