CASE NO. 03-14-00079-CV

__________________________________________________________________ 

IN THE COURT OF APPEALS FOR THE 

THIRD JUDICIAL DISTRICT OF TEXAS 

__________________________________________________________________ 

Texas Parks and Wildlife Department, 

Appellant.

vs.

Nancy Gallacher, 

Appellee, 

__________________________________________________________________ 

 On Interlocutory Appeal from the 250th Judicial District of Travis County, Texas 

__________________________________________________________________ 

APPELLEE’S MOTION FOR REHEARING

__________________________________________________________________ 

HOWARD & KOBELAN

Logan Howard 

Texas Bar No. 24069952 

Derek A. Howard 

Texas Bar No. 10064600 

100 Congress Avenue, Ste. 1720 

Austin, Texas 78701 

(512) 480-9300 

(512) 480-9374 facsimile 

ATTORNEYS FOR APPELLEE

January 14, 2015

ACCEPTED

03-14-00079-CV

3772626

THIRD COURT OF APPEALS

AUSTIN, TEXAS

1/14/2015 4:25:40 PM

JEFFREY D. KYLE

CLERK

 FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 1/14/2015 4:25:40 PM JEFFREY D. KYLE Clerk
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TABLE OF CONTENTS

TABLE OF CONTENTS ..........................................................................................i

TABLE OF AUTHORITIES .................................................................................... ii

ISSUES PRESENTED FOR REVIEW.....................................................................1

I. ISSUE ONE:..........................................................................................1

Whether the Court of Appeals erred in holding that the trial court 

lacked subject matter jurisdiction over Gallacher’s retaliation claim 

because she did not present evidence supporting a prima facie case of 

retaliation under the TCHRA.

A) Gallacher has presented evidence to show that TPWD 

departed from its policies and procedures.

B) Gallacher has presented evidence to show a “very close” 

temporal proximity between her protected activity and the 

adverse employment action against her.

ARGUMENT AND AUTHORITIES........................................................................2

PRAYER..................................................................................................................10

CERTIFICATE OF COMPLIANCE.......................................................................11

CERTIFICATE OF SERVICE ................................................................................12
ii

TABLE OF AUTHORITIES

Cases:

Ackel v. National Communications, Inc., 

339 F.3d 376 (5th Cir. 2003).....................................................................8, 10

Anderson v. Coors Brewing Co., 

181 F.3d 1171 (10th Cir.1999)........................................................................8

Bland Indep. Sch. Dist. v. Blue

34 S.W.3d 547 (Tex.2000) ..............................................................................9

Gee v. Principi,

289 F.3d 342 (5th Cir. 2002)...........................................................................8

Long v. Eastfield Coll.,

88 F.3d 300 (5th Cir.1996)............................................................................10

Pardo-Kronemann v. Jackson,

541 F.Supp.2d 210 (D.D.C. 2008) aff’d in part, rev’d in part on other 

grounds, 601 F.3d 599 (D.C.Cir.2010) ...........................................................9

San Antonio Water System v. Nicholas.,

441 S.W.3d 382 (Tex.App.-San Antonio, 2013).............................................9

Tex. Dep’t. of Parks and Wildlife v. Miranda,

133 S.W.3d 217 (Tex. 2004) .......................................................................2, 5
1

CASE NO. 03-14-00079-CV

__________________________________________________________________

IN THE COURT OF APPEALS FOR THE

THIRD JUDICIAL DISTRICT OF TEXAS

__________________________________________________________________

Texas Parks and Wildlife Department,

Appellant.

vs.

Nancy Gallacher,

Appellee,

__________________________________________________________________

TO THE HONORABLE THIRD COURT OF APPEALS:

COMES NOW, Appellee, Nancy Gallacher (hereinafter “Gallacher”, 

“Plaintiff”, or “Appellee”), and respectfully submits this Motion for Rehearing 

pursuant to Tex.R.App.P. 49.1 and would show the Court the following: 

ISSUE PRESENTED FOR REVIEW

Issue No. 1: Whether the Court of Appeals erred in holding that the trial court 

lacked subject matter jurisdiction over Gallacher’s retaliation claim 

because she did not present evidence supporting a prima facie case 

of retaliation under the TCHRA. More specifically, the Court 

ignored relevant evidence and incorrectly found (a) that TPWD did 

not depart from its policies and procedures and (b) that “Gallacher’s

‘mere temporal proximity’ argument is insufficient to show a causal 

link existed between protected activity she engaged in and an 

adverse employment action against her.” 
2

ARGUMENT AND AUTHORITIES

While this Court has correctly stated the elements of a prima facie claim of 

retaliation, Appellee contends that the Court has misstated relevant facts and, 

therefore, misapplied the law. 

Gallacher has produced sufficient evidence to support a prima facie claim of 

retaliation under the TCHRA

First, Gallacher would argue that the Court has exceeded its role in reviewing 

the trial court’s denial of TPWD’s plea to the jurisdiction. The Court is to “take as 

true all evidence favorable to the nonmovant, indulging every reasonable inference 

and resolving any doubts in the nonmovant’s favor.” Texas Department of Parks 

and Wildlife v. Miranda, 133 S.W.3d 217, 228 (Tex.2004). Here, the Court did not 

adhere to this standard of review. 

Gallacher has produced sufficient evidence to establish the causation element 

of her retaliation claim by showing that TPWD departed from its policies and 

procedures.

The Court’s Opinion states that “[w]hether to approve the 320 hours of 

sick-pool leave that Gallacher requested was a decision left to Wagner’s discretion, 

and simply requesting that leave did not automatically entitle Gallacher to approval 

of it. While the Court is technically correct in stating that Wagner’s actions were 

“not prohibited by TPWD’s policies and procedures”, there is no fact in evidence to 
3

suggest that the decision was actually within “Wagner’s discretion” or actually 

authorized in TPWD’s policies and procedures. 

The Sick Leave Pool Request and Authorization form is to be filled out by 

the employee. SCR 246. The top portion of the form states “I hereby request 

_____ hours from the Sick Leave Pool.” CR 61-62. It then contains an 

“Employee Certification” and a place for the employee to sign the form. Id. The 

document clearly indicates that it is the employee, and not the employee’s 

supervisor, who is supposed to fill out the top half of the form. The supervisor is to 

sign the “Recommendation from supervisor” stating that “this employee is meeting 

job performance standards, observing TPWD policies and has properly managed 

use of his/her sick leave. I recommend approval of this request.” Id. Nowhere 

in the TPWD Sick Leave Pool Policy or on the Sick Leave Pool Request and 

Authorization does it state that the supervisor has the authority to alter the 

employee’s request, or make the final decision as to whether or not to grant or deny 

the employee’s request. Yet Wagner made the decision to alter Gallacher’s 

request, admittedly without notifying Gallacher or any other TPWD employee, and 

unilaterally denied her request. SCR 87; 175-177. It is Gallacher’s contention 

that TPWD Policy permits a supervisor to have input in an employee’s request for 
4

Sick Leave Pool, but does not impart on that supervisor the authority to ultimately 

make the decision. 

Appellee argues that the ambiguity in TPWD’s policies and procedures, 

along with the testimony of Wagner, should be a fact issue to be considered by a 

jury. It is clear that the TPWD policies and procedures concerning sick leave pool 

do not specifically authorize a supervisor to alter a sick leave pool request form or 

ultimately approve or deny an employee’s request for sick leave pool. To the 

contrary, the TPWD policies and procedures do specifically state that it is the Sick 

Leave Pool Administrator, Rebecca Gonzales, who has the authority to approve or 

deny the sick leave pool request. Additionally, the following is an excerpt from 

Wagner’s deposition:

Q: Is it still your belief that you have the authority to 

alter an employee’s sick leave pool request?

Ms. Connor: Objection, form.

A: I didn’t think about it.

Q: Well, after reviewing this policy, is that still your 

belief?

Ms. Connor: Objection, form.

A: Probably not, no.
5

SCR 176-177 at 69-70. After reviewing the TPWD policy regarding sick leave 

pool requests, Wagner admitted that he did not believe that he had the authority to 

alter an employee’s sick leave pool request as he did with Gallacher. Additionally, 

Ms. Gonzales even testified that had Gallacher’s request been submitted with the 

320 hours of sick leave pool she was requesting, there was “nothing that would have 

prevented her from granting the full 320 hours. CR 102 at 29; SCR 244-247. 

TPWD also submitted the following position to the EEOC in response to the 

EEOC’s request for TPWD to “[e]xplain why Mr. Wagner determined how many 

hours Ms. Gallacher would be granted”:

“it is the [Sick Leave Pool] administrator’s responsibility 

to determine the employee’s eligibility to withdraw time 

from the SLP, including verifying that the employee is 

suffering from a catastrophic illness or injury and has 

exhausted all accrued available leave...” 

CR 127. By TPWD’s own admission, it is not the decision of the employee’s 

supervisor to make. 

The Texas Supreme Court has held that if the evidence creates a fact 

question, the court cannot grant a plea to the jurisdiction. Miranda, 133 S.W.3d 

217, at 228. Gallacher is only required to show that there is a disputed material 
6

fact, and the Court must take as true all evidence favorable to Gallacher and resolve 

any doubts in her favor. Id. Clearly, the evidence is not undisputed and there 

remains a fact question as to whether or not Wagner had the authority to unilaterally 

alter and deny Gallacher’s sick leave pool request form without notifying Gallacher 

or Ms. Gonzales. 

Gallacher has produced sufficient evidence to establish the causation element 

of her retaliation claim by showing the “very close” temporal proximity 

between her protected activity and the adverse employment action against 

her.

The Court’s Opinion further states that “[t]he only remaining basis for 

Gallacher’s causation argument is the three-month period between her complaint to 

Lopp about Wagner and the termination of her employment.” The “three-month” 

period cited by the Court is a gross mischaracterization of the time frame that the 

Court should be considering for Gallacher’s retaliation claim. While 

approximately three-months elapsed between the date that Gallacher complained to 

Jim Lopp and her last day of employment, the facts clearly show that far less time 

passed between the date that Wagner was actually made aware of Gallacher’s 

complaint and the date on which he decided to terminate Gallacher. It is this latter 

time frame that should have been considered by the Court in its review. 
7

The following is the timeline of events relevant to Gallacher’s retaliation claim:

September 2010 – Gallacher complained to TPWD Deputy Director 

Jim Lopp about alleged discriminatory treatment of her by Wagner.

CR 120-121, 124; SCR 102.

Early October 2010 – Lopp met with Wagner to discuss Gallacher’s 

complaints. SCR 102-103.

November 3, 2010 – Gallacher requested 320 hours of sick leave pool 

for open-heart surgery. CR 61-62

November 10, 2010 – Wagner sent Gallacher a letter notifying her that 

he was only approving 160 hours of sick leave pool and that he was 

“unable to commit to a longer period of approved leave and will be 

making a decision in the near future on whether the Wildlife Division’s 

business needs will allow for leaving [her] position open.” SCR 213. 

November 23, 2010 – Wagner emailed Gonzales about the termination 

process for Gallacher. SCR 177-178 at 73-74.

November 29, 2010 – Wagner sent Gallacher a letter notifying her that 

she was being terminated as of December 17, 2010. SCR 214.

Therefore, Wagner made his decision to deny Gallacher 160 hours of sick leave 

pool less than six (6) weeks after he was made aware of her complaint to Lopp

(Early October 2010 to November 10, 2010). Gallacher would argue that 

Wagner’s decision to deny Gallacher 160 hours of sick leave pool, knowing that she 

needed 320 hours of sick leave pool for open heart surgery, was, in effect, a 

decision to terminate Gallacher. Even if the Court takes the position that Wagner 

did not actually decide to terminate Gallacher until November 23, 2010 or 
8

November 29, 2010, the temporal proximity between Gallacher’s complaint and

Wagner’s decision to fire her is still less than two (2) months from the date he was

made aware of her complaint to Lopp. 

While the Tenth Circuit, as cited in the Court’s Opinion, has found that a 

“three-month gap”, by itself, is insufficient to infer a causal link, the Tenth Circuit 

has also found that a “one and one-half month period... may, by itself, establish 

causation.” Anderson v. Coors Brewing Co., 181 F.3d 1171, 1179 (10th 

Cir.1999). Here, Gallacher has produced evidence to show that approximately one 

and one-half months (or less) passed between Wagner being made aware of her 

complaint to Lopp (in early October 2010) and Wagner effectively terminating her 

employment (on or before November 10, 2010 when he denied Gallacher’s request 

for 320 hours of Sick Leave Pool). While Gallacher would argue that the adverse 

employment action occurred on or before November 10, 2010, the latest date that 

should be considered as the date of the adverse employment action against 

Gallacher should be November 29, 2010 (the date on which Wagner sent Gallacher

a letter notifying her that she was being terminated). 

In determining whether an adverse employment action was retaliatory, the 

Court must focus on “the final decisionmaker.” Ackel v. National 

Communications, Inc., 339 F.3d 376, 385 (5th Cir. 2003) (citing Gee v. Principi, 
9

289 F.3d 342, 346 (5th Cir. 2002). Here, the final decision maker is Wagner, and 

therefore, the time period relevant to Gallacher’s retaliation claim should focus on 

Wagner’s knowledge of her complaint and Wagner’s decision to terminate 

Gallacher. Further, the Fourth Court of Appeals in San Antonio has stated that 

“[e]specially where a defendant retaliates at the first opportunity that is presented, a 

plaintiff will not be foreclosed from making out a prima facie case despite a 

substantial gap in time.” San Antonio Water System v. Nicholas, 441 S.W.3d 382, 

392-393 (Tex.App.-San Antonio, 2013) (citing Pardo-Kronemann v. Jackson, 541 

F.Supp.2d 210, 218 (D.D.C. 2008) aff’d in part, rev’d in part on other grounds, 601 

F.3d 599 (D.C.Cir.2010). Gallacher would argue that the evidence supports the 

contention that Wagner retaliated at the first opportunity he had following her 

complaint; i.e. when Gallacher submitted a request for sick leave pool for open 

heart surgery on November 3, 2010 and Wagner discovered from HR that Gallacher 

would soon be running out of FMLA protected leave. SCR 174-175 at 61-62; SCR 

178 at 76. 

In addition to taking as true all evidence favorable to Gallacher, the Court 

must also make its decision “without delving into the merits of the case.” Bland 

Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex.2000). Gallacher is not 

required to “put on [her] case simply to establish jurisdiction.” Id. Gallacher has 
10

pled sufficient facts to establish a prima facie case of retaliation, and she has 

submitted evidence in support of those facts. At the prima facie stage, “the 

standard for satisfying the causation element is ‘much less stringent’ than a ‘but for’ 

causation standard.” Ackel, 339 F.3d 376, at 385 (citing Long v. Eastfield Coll., 88 

F.3d 300, 305 n. 4 (5th Cir.1996). Gallacher need only submit some evidence of a 

causal link between her protected activity and the adverse action taken against her 

to establish her prima facie claim of retaliation. Id. Gallacher has met this 

burden, and the trial court’s denial of TPWD’s Plea to the Jurisdiction with respect 

to Gallacher’s retaliation claim should be affirmed. 

PRAYER

Based on the reasons described hereinabove, Gallacher respectfully requests 

that this Court grant this motion for rehearing, modify its December 31, 2014 

Opinion to affirm the trial court’s denial of TPWD’s Plea to the Jurisdiction with 

respect to Gallacher’s retaliation claim, and grant such further relief to which 

Gallacher may show herself justly entitled.
11

Respectfully submitted,

HOWARD & KOBELAN

100 Congress Avenue, Ste. 1720

Austin, Texas 78701

(512) 480-9300

(512) 480-9374 facsimile

By: /s/ Logan Howard 

Logan E. Howard

State Bar No. 24069952

Derek A. Howard

State Bar No. 10064600

ATTORNEYS FOR APPELLEE

CERTIFICATE OF COMPLIANCE

I certify that this document contains 2,050 words (counting all portions of the 

document that are subject to the word limits of Texas Rule of appellate Procedure 

9.4(i)), according to the word-processing software used to produce this document.

/s/ Logan Howard 

Logan Howard
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CERTIFICATE OF SERVICE

I certify that a true and correct copy of the foregoing was forwarded in 

accordance with Texas Rules of Appellate Procedure to all counsel of record, as 

listed below, via e-mail on this the 14

th

day of January 2015.

Madeleine Connor, Assistant Attorney General

Office of Attorney General 

P.O. Box 12548

Austin, Texas 78711

Madeleine.connor@texasattorneygeneral.gov

/s/ Logan Howard 

Logan Howard