No. 04-15-00042-CV

In the Court of Appeals 

for the Fourth Judicial District 

San Antonio, Texas 

TEXAS DEPARTMENT OF STATE HEALTH SERVICES, 

Appellant, 

v.

AMY W. ROCKWOOD

Appellee.

On Interlocutory Appeal from Cause No. 2011CI-04447 

in the 166th District Court of Bexar County, Texas 

APPELLANT’S REPLY BRIEF

KEN PAXTON

Attorney General of Texas

CHARLES E. ROY

First Assistant Attorney 

General

 JAMES E. DAVIS

Deputy Attorney General 

for Civil Litigation

ANGELA V. COLMENERO

Chief - General Litigation 

Division

 DREW L. HARRIS

 Assistant Attorney General

 State Bar No. 24057887

 OFFICE OF THE ATTORNEY GENERAL

 P.O. Box 12548 

 Austin, Texas 78711-2548

 Tel.: (512) 463-2120

 Fax: (512) 320-0667

 

Drew.Harris@texasattorneygeneral.gov

 COUNSEL FOR APPELLANT

ACCEPTED

04-15-00042-CV

FOURTH COURT OF APPEALS

SAN ANTONIO, TEXAS

5/12/2015 5:00:26 PM

KEITH HOTTLE

CLERK

 FILED IN 4th COURT OF APPEALS SAN ANTONIO, TEXAS 5/12/2015 5:00:26 PM KEITH E. HOTTLE Clerk
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SUMMARY OF ARGUMENT

Amy Rockwood makes three incorrect arguments in her Appellee 

Brief. First, regarding the prima facie element of being “qualified” to do 

her job, Rockwood argues she was “qualified” in August 2009, but notably 

does not contend that she was “qualified” at the relevant time of her 

adverse employment action in October 2009. 

Second, Rockwood relies upon the novel argument—not recognized 

by the courts—that her employer had the affirmative burden under 

disability accommodation law to proactively “inquire” with the 

employee’s doctor without the employee ever providing any medical 

forms or consent. 

Third, Rockwood argues she can meet the prima facie element of 

causation solely by showing temporal proximity of two-months-and-aweek—despite both Texas and federal courts holding that such temporal 

proximity alone is insufficient to show a causal link on summary 

judgment—where Rockwood has the burden to show “but-for” causation. 

Appellant Texas Department of State Health Services (“DSHS”) 

contends all of these arguments are wrong, but if this Court agrees that 

any of these three faulty arguments are incorrect, the Court should 
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reverse the denial of the plea to the jurisdiction on the appropriate 

claims. 

ARGUMENT

A. Rockwood Does Not Dispute She Was Not “Qualified” to 

Work at the Time of Her Adverse Employment Action. 

Rockwood asserts that she was a “qualified individual with a 

disability” because, prior to August 2009, she was “rated a ‘3’ Competent 

to perform her duties,” and she was still able to perform her duties in 

August 2009 despite lacking a rubber mat and chair. See Appellee Br. at 

15. But it is undisputed that after her September 4, 2009 car accident, 

Rockwood was completely incapable of performing her essential job 

functions. CR.47 at 44:7-12; 141:13-20.

At the time that mattered—at her October 13, 2009 termination—

there is no dispute that Rockwood was not “qualified” to perform the

essential requirements of her job. See Turco v. Hoechst Celanese Corp.,

101 F.3d 1090, 1093 (5th Cir. 1996). In Turco, even though the employee 

might have at one time been healthy and qualified, the Court of Appeals 

held that because his diabetes caused him to not be able to safely perform 

his essential job functions, he was “unqualified,” and summary judgment 

was warranted. Id. at 1094. 
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Here, Rockwood must show that she was “qualified” at the relevant 

time as an initial prima facie requirement for bringing any sort of

disability discrimination claim under Chapter 21 of the Labor Code. 

Davis v. City of Grapevine, 188 S.W.3d 748, 757 (Tex. App.-Fort Worth

2006, pet. denied). Because Rockwood cannot meet this prima facie

element, she cannot bring a Chapter 21 claim.

B. Rockwood Creates New “Interactive Process” 

Requirements for Employers Not Recognized by Any Court. 

As an initial matter, because Rockwood did not make a proper 

disability accommodation request, DSHS was not under an obligation to 

participate in the interactive process. As the Fifth Circuit explained:

[O]nce an accommodation is properly requested, the 

responsibility for fashioning a reasonable accommodation is 

shared between the employee and employer. Thus, it is the 

employee’s initial request for an accommodation which 

triggers the employer's obligation to participate in the 

interactive process of determining one. If the employee fails 

to request an accommodation, the employer cannot be 

held liable for failing to provide one.

Taylor v. Principal Financial Group, Inc., 93 F.3d 155, 165 (5th Cir. 1996)

(emphasis added). Even Rockwood acknowledges that she did not submit 

a formal accommodation request until after her October 2009 
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termination. See Appellee Br. at 9 (“Appellee submitted a formal 

reasonable accommodation request on March 12, 2010 .....”).

But even assuming DSHS was required to engage in an “interactive 

process,” DSHS fulfilled its burden because Safety Officer Martha Fritz 

tried repeatedly to meet with Rockwood in August 2009 to perform an

ergonomic workplace assessment, and Fritz even sought a temporary 

remedy for Rockwood. CR.106 at ¶ 7. Rockwood responds in her Appellee 

Brief by creating new requirements for employers regarding the 

interactive process.

Rockwood implicitly asks this Court to create new law imposing a 

requirement on employers to proactively inquire with disabled 

employees’ physicians about their possible health needs. Rockwood 

argues: “The Appellant’s failure to further inquire with Appellee’s 

physician and to accommodate Appellee concerning her request for a 

rubber mat and ergonomic chair constitutes a violation of the Act.” 

Appellee Br. at 19. 

Rockwood notably does not explain how DSHS would even know 

who her physician was, or how DSHS could get around medical privacy 

laws to talk to Rockwood’s physician. 
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Rockwood cites Cutrera v. Board of Sup’rs of Louisiana State 

University, 429 F.3d 108, 112 (5th Cir. 2005), as supposed authority that 

“the employer is required to ... consult with the employee’s physician.” 

Appellee Br. at 19. However, Cutrera contradicts this, noting that in 

general, “it is the responsibility of the individual with the disability to 

inform the employer that an accommodation is needed.” 429 F.3d at 12.

Moreover, Cutrera is readily distinguishable, since there the employer 

“refused to discuss any steps that could be taken to accommodate her 

disability, and instead terminated her immediately.” Id. In contrast, here 

Ms. Fritz repeatedly tried to discuss steps that could be taken, and the 

main reason Ms. Fritz was unsuccessful in her efforts was that after 

Rockwood’s September 4, 2009 car accident, Rockwood never returned to 

work. CR.102, at ¶ 6. 

Here, the “responsibility for breakdown of the interactive process is 

traceable to the employee.” Hagood v. County of El Paso, 408 S.W.3d 515, 

526 (Tex. App.–El Paso 2013, no pet.) (affirming summary judgment).

Accordingly, summary judgment on the reasonable accommodation claim 

is warranted.
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C. Rockwood Cannot Rely Upon Temporal Proximity Alone to 

Show “But-For” Causation. 

Under either her discrimination or retaliation claim, Rockwood must 

show “but-for” causation. Davis, 188 S.W.3d at 757; Hagood, 408 S.W.3d 

at 526. Moreover, Rockwood “must rebut each nondiscriminatory or 

nonretaliatory reason articulated by the employer.” McCoy v. City of 

Shreveport, 492 F.3d 551, 557 (5th Cir. 2007) (emphasis added). 

With respect to the leave exhaustion reason—which Rockwood does 

not factually dispute—Rockwood’s only response is that “she believed 

that reason was pretextual.” See Appellee Br. at 22. It is well-established 

that personal beliefs are insufficient to create a fact issue as to pretextual 

discrimination or retaliation. See e.g., Britt v. The Grocer’s Supply Co. 

Inc., 978 F.2d 1441, 1451 (5th Cir. 1992).

The only other argument for causation Rockwood puts forward is 

the “temporal proximity” between the August 5, 2009 request and her 

October 13, 2009 termination, which amounts to a little over two-monthsand-a-week gap. See Appellee Br. at 21. However, a very recent 2015 

Texas Court of Appeals case noted that “gap of about two months and one 

week between the protected activity and the adverse action was 

insufficient by itself to infer a causal link.” Texas Parks and Wildlife 
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Dept. v. Gallacher, 2015 WL 1026473, *7 (Tex. App.—Austin, March 4, 

2015). Recent federal law similarly found that two-months-and-a-week 

was insufficient by itself to show causation. Amsel v. Texas Water Dev. 

Bd., 464 Fed. Appx. 395, 402 (5th Cir. 2012) (noting that “timing alone 

will not always be enough for a prima facie case”).

Accordingly, Rockwood has not met her burden in rebutting the 

legitimate reasons for termination—and she has not even set forth a 

prima facie causation showing to the extent she is relying upon a twomonth-and-a-week timeframe. Gallacher, 2015 WL 1026473, *7. Thus, 

summary judgment on the issue of causation is warranted.

CONCLUSION

The Court should reverse the trial court’s denial of the Plea to the 

Jurisdiction, and dismiss Plaintiff’s claims with prejudice.

Respectfully submitted,

KEN PAXTON

Attorney General of Texas

CHARLES E. ROY

First Assistant Attorney General

JAMES E. DAVIS

Deputy Attorney General for Civil Litigation

ANGELA V. COLMENERO

Division Chief, General Litigation Division
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/s/ DREW L. HARRIS

DREW L. HARRIS

Assistant Attorney General

State Bar No. 24057887

Office of the Attorney General

General Litigation Division

P.O. Box 12548

Austin, TX 78711-2548

(512) 463-2120 / (512) 320-0667 FAX

drew.harris@texasattorneygeneral.gov

ATTORNEYS FOR APPELLANT TEXAS 

DEPARTMENT OF STATE HEALTH 

SERVICES

CERTIFICATE OF SERVICE

On May 12, 2015, the foregoing was served via certified mail, return 

receipt request, upon:

R. Chris Pittard

FORTE & PITTARD, P.P.L.C.

Counsel for Appellee

/s/ Drew Harris

DREW HARRIS

CERTIFICATE OF COMPLIANCE

In compliance with Texas Rule of Appellate Procedure 9.4(i)(2), this 

Appellant’s Reply Brief contains 1,504 words.

/s/ Drew Harris

DREW HARRIS