In The 

Court of Appeals 

Seventh District of Texas at Amarillo 

 

No. 07-24-00034-CV 

 

VERONICA BRATU, APPELLANT 

V. 

TEXAS DEPARTMENT OF MOTOR VEHICLES, APPELLEE 

On Appeal from the 48th District Court 

Tarrant County, Texas 

Trial Court No. 048-328940-21, Honorable Christopher Taylor, Presiding 

June 28, 2024 

MEMORANDUM OPINION1 

Before QUINN, C. J., and PARKER and DOSS, JJ. 

After being hired by the Texas Department of Motor Vehicles (department) to work 

with computers and answer phones, suffering injury in November 2017, experiencing 

various accommodations for her injuries over the ensuing 16 months, and her doctor 

ultimately restricting her from using a keyboard in toto and phones for more than a de 

minimis period of time, Veronica Bratu was discharged. That resulted in her claiming 

1 Because this appeal was transferred from the Second Court of Appeals, we apply its precedent 

should it conflict with that of the Seventh Court of Appeals. TEX. R. APP. P. 41.3.
2

discrimination based on age and nationality, retaliation, and failure to accommodate. In 

response to her suit, the department filed its plea to the jurisdiction of the trial court, which 

plea the court granted. Thus, the action was dismissed with prejudice. Before us is her 

appeal. Through one issue with numerous subparts, she contends sufficient evidence 

raised questions of fact regarding each element of her various causes of action. That, in 

her estimation, meant the trial court erred in granting the department’s plea to the 

jurisdiction. We affirm. 

Background

Bratu, a Romanian woman in her fifties, worked for the department’s Fort Worth 

Regional Service Center for a decade and until her discharge on April 30, 2019. Jeremiah 

Kuntz, the Director of the Vehicle Title and Registration Division, made the decision to 

end her employment. His reason “was based on Ms. Bratu’s exhaustion of all available 

leave and her inability to return to work and perform her essential job duties, even with 

accommodations.”

In November 2017, Bratu sustained a work-related injury resulting in visits to 

physicians and physical therapy. As of October 2018, the medical restrictions by which 

she had to abide precluded her from working more than 24 hours per week. So too was 

she required to attend physical therapy twice a week with each visit lasting eight hours. 

The department accommodated those and her earlier restrictions. 

In December 2018, Bratu went on leave per the Family and Medical Leave Act 

(FMLA), which leave was depleted by February 2019. Yet, when allowed to return on 

February 4, 2019, with additional restriction imposed by her doctors, she left the following 

day. Apparently, while at her desk, she experienced extreme pain. That led to a 
3

supervisor (Wilson) driving her to the emergency room. From then until her termination 

on April 30, 2019, Bratu never returned for work. This was so despite being released by 

her doctors to return as of April 15, 2019, and April 23, 2019. Discussion began among

the department and Kuntz about Bratu’s continued employment and its receipt of Bratu’s 

latest medical release. Through it, her physicians barred her from “using the keyboard or 

answering the phones for more than 1-5% of the day.”

Bratu was notified of the department’s discussions and its consideration of ending 

her employment. She responded and suggested that she be accommodated by allowing 

her to process salvage titles and work at the information desk. Kuntz ultimately decided 

to release Bratu for the reasons stated earlier.

Standard of Review

The standard of review is settled and needs little explanation here. We refer the 

parties to discussion in Univ. of Tex. M.D. Anderson Cancer Ctr. v. McKenzie, 578 S.W.3d 

506 (Tex. 2019), Alamo Heights Indep. Sch. Dist. v. Clark, 544 S.W.3d 770-71 (Tex. 

2018), Hous. Belt & Terminal Ry. Co. v. City of Hous., 487 S.W.3d 154 (Tex. 2016), and

Tex. Dep’t of State Health Servs. v. Kerr, 643 S.W.3d 719 (Tex. App.—Amarillo 2022, no 

pet.).

Disability Claim or Failure to Accommodate

To establish a prima facie case of disability discrimination, a plaintiff must show 

that 1) she has a “disability”; 2) she is “qualified” for the job; and 3) she suffered an 

adverse employment decision because of the disability. Davis v. City of Grapevine, 188 
4

S.W.3d 748, 757 (Tex. App.—Fort Worth 2006, pet denied).2 In other words, one claiming 

an employer failed to provide reasonable accommodations, or otherwise discriminated 

against her based upon a disability, must show that: 1) with reasonable accommodations 

she could perform the essential functions of the position and 2) the employer refused to 

make such accommodations. Id. at 758. Below, the department argued that Bratu was 

not a qualified individual with a disability because her condition at the time of her

separation from employment was such that she could not perform the essential functions 

of her job, even with reasonable accommodations. 

Evidence provided the trial court illustrated: 1) she suffered from an injury; 2) it 

impeded her ability to work; 3) accommodations were made by the department; 4) Bratu 

appeared and departed from work due to her injury and despite those accommodations;

and 5) she requested further accommodations immediately before her discharge. Other 

evidence of record described the essential functions of her job. They included 1) 

“process[ing] apportioned registration in person, by telephone and through the Texas 

International Registration Plan online application, 2) “retriev[ing] information from master 

files, mainframe systems and databases,” 3) “enter[ing] information into databases,” 4) 

“research[ing] information from manuals and electronic resources,” 5) “attend[ing] work 

regularly and observ[ing] approved work hours,” and 6) “communicat[ing] with and 

assist[ing] the public, government entities and industry stakeholders in person, by 

telephone (inbound/outbound), by e-mail and through correspondence.” Through the 

medical release obtained in late April 2019, the department was informed that Bratu could 

2 The Davis court further held that the McDonnell-Douglas test does not apply to a claim that the 

employer failed to make a reasonable accommodation. Davis, 188 S.W.3d at 758-59.
5

not “perform any keyboarding” and her “ability to answer phones” was limited “to only 1-

5% of the day.” 

Being unable to utilize a keyboard or answer phones save for de minimis periods

of time, coupled with her continual absence from work, illustrated her inability to perform 

essential job functions. Those functions she could not perform included maintaining 

regular attendance, retrieving electronic data, imputing electronic data, researching via 

electronic means, communicating through email, or communicating through the phone. 

Thus, the burden fell upon Bratu to offer evidence sufficient to raise a question of fact 

regarding whether she could perform them with reasonable accommodation. See Kerr,

643 S.W.3d at 728 (stating that if the defendant presents evidence negating jurisdiction, 

the claimant must present supporting evidence regarding the jurisdictional issue);

Mesquite Indep. Sch. Dist. v. Mendoza, 441 S.W.3d 340, 343 (Tex. App.—Dallas 2013, 

no pet.) (stating that if the defendant presents evidence negating the claimant’s prima 

facie case, the claimant must present supporting evidence); see also Posey-Glynn v. 

Camden Dev., Inc., No. 05-19-01454-CV, 2020 Tex. App. LEXIS 9709, at *16 (Tex. 

App.—Dallas Dec. 10, 2020, no pet.) (mem. op.) (stating that Posey-Glynn “was still 

required to provide summary judgment evidence sufficient to create a fact issue on 

whether she was qualified to do the job at the time she was terminated”). That, she did 

not do.

No one disputes that the department implemented numerous accommodations 

during the 16 months after Bratu’s injury. Nor is her inability to perform each essential 

function of her job (including regular appearance at work) throughout that 16-month

period despite the accommodations in reasonable dispute. Indeed, medical restrictions 
6

persisted, as did her absence from work. Furthermore, the latest accommodations sought 

consisted of processing salvage titles and manning the information desk. Whether those 

tasks enabled her to perform all essential functions of the job for which she was hired 

went undeveloped; in other words, she failed to present evidence that they did.

3 This 

omission is of import because an employer is not required to relieve an employee of any 

essential functions of the job, modify those functions or duties, reassign other employees 

to perform those jobs, or hire new employees to perform those functions. Dep’t of Aging 

& Disability Servs. v. Comer, No. 04-17-00224-CV, 2018 Tex. App. LEXIS 671, at *16 

(Tex. App.—San Antonio Jan. 24, 2018, no pet.) (mem. op.); Davis, 188 S.W.3d at 763. 

So, logically, if the proposed accommodation consisted of requesting an assignment that 

excluded those essential functions, the accommodation was not reasonable or one the 

employer had to provide. See Barber v. Nabors Drilling U.S.A., 130 F.3d 702, 709 (5th

Cir. 1997) (stating that an employee does not prove he can perform essential functions 

through accommodations if the only available accommodation is to relieve the employee 

of those functions). It means the employee would have to tender evidence illustrating the 

accommodations sought encompassed the essential functions of the job. Again, Bratu 

did not do that. 

And, assuming arguendo that processing salvage titles and sitting at the 

information desk did encompass them, she cited us to no evidence indicating her physical 

condition allowed her to perform them while also “attend[ing] work regularly and 

3 Indeed, she described how working the information desk would allow her to avoid using the phone. 

Yet, using the phone was an essential function of her job.
7

observ[ing] approved work hours.” Indeed, her last departure from work on February 5, 

2019, occurred due to suffering extreme pain while merely at her desk. 

Given this, we conclude that Bratu failed to carry her burden to raise questions of 

fact illustrating a prima facie case of disability discrimination. Thus, the trial court did not 

err in granting that aspect of the department’s plea to the jurisdiction.

Discrimination Claims

Bratu also alleged that she was discharged due to her age and national origin. 

Unlike claims regarding the accommodation of disabilities, the McDonnell-Douglas

burden shifting procedure does apply to them. Here, we assume arguendo that Bratu 

met her initial burden. Thus, the burden fell to the department to proffer evidence of a 

legitimate, nondiscriminatory reason for its decision. Kerr, 643 S.W.3d at 729. 

The reasons it proffered was Bratu’s exhaustion of leave and failure to appear at 

work to perform the essential functions of her job. On their face, neither implicate age,

national origin, or other unlawful discrimination; in short, they were legitimate and 

nondiscriminatory. Consequently, the pendulum swung back to Bratu to offer evidence 

showing them to be false or a pretext for discrimination. City of San Antonio v. Diaz, No. 

07-23-00275-CV, 2024 Tex. App. LEXIS 3343, at *5-6 (Tex. App.—Amarillo May 15, 

2024, no pet.) (mem. op.). In other words, Bratu had to offer evidence sufficient to create 

a question of fact about whether her age or national origin was indeed a motivating factor 

in the decision to discharge.

That Bratu did not show up for work on April 23rd and had used her leave is clear. 

Nonetheless, she viewed the proffered reasons as pretext because Wilson and another 

supervisor conspired to force her to exhaust her leave. As explained by Bratu, she 
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appeared for work on December 5th and was met by the supervisor “who forced her to 

leave the building.” Before doing so, the supervisor apparently asked to see her medical 

restrictions, noted that she was not released to return to work that day, told her to return 

to her doctor to see if they could be changed, and walked her to her car. Bratu did not 

deny being medically restricted from returning to work on that day. Moreover, she saw 

her doctor immediately after leaving, and he told her not to return. Additionally, Bratu 

acknowledged during her deposition that Wilson sent her home due to her medical 

restrictions. And, when asked if she were “saying it was a bad thing that Amber Wilson 

looked at your medical restrictions and then asked you to comply with them,” Bratu 

answered “[y]es.” 

The foregoing is not evidence that the department or its representatives directed 

Bratu to remain gone. Nor is it evidence that the department or its representatives 

directed her to remain gone with the intent that she exhaust her leave. Per Bratu herself, 

her doctor refused to alter her restrictions; he directed her to not appear for work. 

Furthermore, Bratu cites us to no evidence of her attempting to return to work 

before February 4th or otherwise being prevented from doing so by anyone with the 

department. And though she appeared for work both February 4th and the morning of 

February 5th, she left on the 5th due to pain. That resulted in her doctor again extending 

restrictions against working through April 15th and then April 23rd. She did not appear 

on April 23rd though. Instead, her doctor again delayed her return until May and ordered 

she forego keyboarding and phone use to more than a de minimis extent. 

Nothing of record viewed in a light most favorable to Bratu supports her contention 

that the department forced her to exhaust her leave. And, that she may now subjectively 
9

believe her superiors acted with some ill motive towards that end matters not. Subjective 

beliefs are not enough. Dall. Cty. Hosp. Dist. v. Ballew, No. 05-22-01358-CV, 2024 Tex. 

App. LEXIS 2116, at *30 (Tex. App.—Dallas Mar. 26, 2024, no pet.) (mem. op.); see Tex. 

Dep’t of Aging & Disability Servs. v. Lagunas, 618 S.W.3d 845, 853 (Tex. App.—El Paso 

2020, no pet.) (requiring a plaintiff to do more than utter bare assertions or subjective 

beliefs that the employer’s reasons for its decision were both false and pretextual). 

Bratu also attempted to prove the reasons for her termination were pretextual 

through arguing that the department “falsely accused [her] of ‘failing’ to show up for work, 

or a ‘refusal’ to return to work.” The actual reason given for termination was her 

“exhaustion of all available leave and her inability to return to work and perform her 

essential job duties, even with accommodations.” (Emphasis added). So, Bratu 

inaccurately represents the department’s reason for termination; it was not because of 

her “failing to show up . . . or a ‘refusal’ to return to work.” It was her “inability to return” 

and do her job. 

Nor has Bratu cited us to evidence supporting her allegation. That to which we 

were directed revealed questions about whether Bratu or her physician modified the date 

of return appearing on the initial April 2019 medical release. The document described 

the return date as April 15, 2019. The second release tendered by Bratu illustrated that 

someone manually struck April 15, 2019, and replaced it with April 23, 2019. According 

to Bratu, upon one of her supervisors observing this, the individual first asked who made 

the change and then told Bratu “to stay home because they wanna know, you know, who 

made the mistake. They want the doctor to -- to -- to receive something from the doctor 

to see if the doctor did it or me.” Bratu also admitted to not returning to work on either 
10

April 15th or the 23rd. Instead, she revisited her doctor who again extended her leave 

until the first week of May 2019. Irrespective of whether the tendering of medical releases,

which continually postponed Bratu’s return date evinced her own desire to eschew work, 

the evidence does not support a reasonable inference that the department accused her 

(rightly or wrongly) of refusing to return or work. It merely concluded that she had 

exhausted her leave and was unable to return and perform the essential functions of the 

job for which she was hired.

Bratu next posited that the department’s “refusal to consider additional reasonable

accommodations was additional evidence of pretext.” As said earlier, we were cited to 

no competent evidence suggesting that she was capable of performing all the essential 

functions of the job for which she was hired. The least of them was to show up regularly 

for work, and the record evidence clearly illustrated she did not do that. Nor were we 

cited to competent evidence suggesting the last two accommodations sought (i.e.,

processing salvage titles and sitting at the information desk) either fell within the ambit of 

those essential functions or were tasks which she was actually capable of performing. 

And, her subjective belief that processing salvage titles or sitting at the information desk 

encompassed all essential functions of her job which she could capably perform is not 

competent evidence of either. Indeed, we cannot reasonably ignore the undisputed 

evidence that on the last day she actually worked (i.e., February 5, 2019) her pain 

required her to leave. Whether she could do any work, therefore, was speculation. 

In sum, Bratu directed us to no competent evidence from which a rational juror 

could infer that the reasons given for her termination were pretext. So, she again failed 

to carry her burden of proof assigned her by controlling legal authority. That leads us to 
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again conclude the trial court did not err in granting the department’s plea to the 

jurisdiction on Bratu’s discrimination claims.

Retaliation Claim

The final claim we address pertains to retaliation. Allegedly, the department fired 

her because she complained to one supervisor of Wilson’s purported mistreatment of her 

in December 2018. Allegedly, the supervisor and Wilson then became part of the team 

ultimately determining Bratu’s fate five months later. In so arguing, Bratu alluded to the 

elements of a prima facie case for retaliation. They included causation. That is, the 

complainant must illustrate a causal link between the protected activity and adverse 

action. Alamo Heights Ind. Sch. Dist., 544 S.W.3d at 782. 

Initially satisfying the causal link is not onerous and may be done through mere 

comparison of the timing between the protected activity and the adverse action. Id. If 

close in time, then the link may be satisfied. Id. Yet, that is not true if the employer 

provides evidence of a legitimate reason for the adverse action. Then, the employee 

must present evidence illustrating the action would not have occurred but for the 

protected activity. Id.; see Ptomey v. Tex. Tech Univ., 277 S.W.3d 487, 497 (Tex. App.—

Amarillo 2009, pet. denied) (stating that the proper standard of causation for retaliation 

claims is the traditional but-for measure). As said by our Supreme Court, that nexus is 

significantly harder to prove. Alamo Heights Ind. Sch. Dist., 544 S.W.3d at 782. And, we 

focus on it here.

As said earlier, the department proffered legitimate, non-discriminatory reasons for 

terminating Bratu. Thus, to survive dismissal, she had to proffer evidence sufficient to 

raise a material question of fact on the element of causation. She had to proffer evidence 
12

from which a rational juror could reasonably deduce that but for her complaint about 

Wilson, she would have retained her job. 

Yet, the individual who made the decision to terminate, i.e., Kuntz, averred that he 

knew not about Bratu’s age, national origin, or complaints of discrimination. He further 

averred that: “I made the decision to administratively separate Ms. Bratu . . . My decision 

was not based on [her] age, national origin, disability, or any complaints of discrimination. 

My decision was based on [her] exhaustion of all available leave and her inability to return 

to work and perform her essential job duties, even with accommodations.” 

As explained earlier, Bratu did not succeed in establishing a question of fact 

regarding the supposed pretextual nature of the grounds upon which Kuntz relied. So, 

they do not serve to show that but for some protected activity, she would have remained 

employed. See Alamo Heights Ind. Sch. Dist., 544 S.W.3d at 791-92 (considering 

whether the reasons given for the adverse action were shown to be pretext when applying 

the but-for causal link).

Nor did Bratu cite us to evidence contradicting Kuntz’s statement that he knew not 

of any complaints about discrimination. See id. at 790 (including the decision-maker’s

knowledge of the protected activity in the litany of circumstances to consider when 

assessing the but-for nexus); see also Manning v. Chevron Chem. Co. LLC, 332 F.3d 

874, 883 (5th Cir. 2003) (stating that “to establish the causation prong of a retaliation 

claim, the employee should demonstrate that the employer knew about the employee’s

protected activity”). Instead, she posits that one or more of her supervisors were part of 

the “team” considering what to do about her. From that, in her view, 1) a “reasonable 

juror could have concluded” her supervisors “disclosed to the other decision-makers who 
13

terminated Bratu that Bratu had reported . . . discriminatory animus . . . in which case the 

other decision-makers were complicit in the retaliation decision,” or 2) the “retaliatory 

motive” of her supervisors could be “imputed to the other decision-makers under the ‘cat’s 

paw’ theory the United States Supreme Court has recognized.” See Staub v. Proctor 

Hosp., 562 U.S. 411, 421 (2011) (observing that an employer may be deemed at fault if

one of its agents committed an act based on discriminatory animus that caused an 

adverse employment action). 

Regarding the latter and assuming the “agents committed an action based on 

discriminatory animus,” Bratu still had to proffer evidence that the action caused the 

adverse employment decision. Proof of the supervisors merely being part of the “team” 

who investigated the circumstances does not suffice. This is so because we are left to 

speculate not only about what they said or did but also their motivation. We are left to 

speculate that they somehow nudged Kuntz to act in a way they wanted. Yet, Bratu cites 

us to no evidence indicating they said or did anything as part of the “team.” Indeed, 

individuals may sit on committees and say or do nothing of consequence the entire time. 

We are merely left to assume that because they were part of the “team” they said or did 

anything. And, assumptions are not evidence. Terry v. State, 296 S.W.3d 905, 907 (Tex. 

App.—Amarillo 2009, pet. ref’d).

Nevertheless, Bratu again attempts to fill that void by arguing her supervisors 

intended Bratu “exhaust her leave rather than work with restrictions” while knowing and 

intending “she would be fired for it . . . and she was fired for it.” Yet, we know that 

argument to be deficient as explained earlier. Simply put, Bratu’s own physician directed 

her to stay away from the office, not her supervisors. He, not her supervisors, extended 
14

those restrictions through January into February 2019. He, not the supervisors, sent the 

April 2019 medical release which served to continue her absence from work. So, the 

supposed machinations alluded to by Bratu were and are not evidence of her supervisors’

causing her discharge per Staub.

Nor can jurors reasonably conclude Bratu’s supervisors “disclosed to the other 

decision-makers who terminated Bratu that Bratu had reported . . . discriminatory 

animus.” Again, she cites us to no evidence indicating such a report to Kuntz. Nor does 

mere membership on a team assessing Bratu’s circumstances suffice. That would entail 

assuming the supervisors not only offered Kuntz input but also that the input offered 

included reference to purported complaints about discrimination. Neither assumptions 

nor surmises are evidence of missing facts. Terry, supra; USLIFE Title Ins. Co. v. Rossco, 

Inc., 550 S.W.2d 419, 422 (Tex. App.—Eastland 1977, writ ref’d n.r.e.). Speculation, 

personal belief, or insupportable inferences like that here do not raise questions of fact. 

Ptomey, 277 S.W.3d at 497-98. And, this leads us to conclude that Bratu failed to present 

evidence sufficient to raise a question of fact on the element causation. 

We overrule Bratu’s contentions and affirm the order of dismissal.

Brian Quinn

Chief Justice