### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-14-00079- CV

Texas P arks and Wildl if e De partm ent, Appellant

v. Nancy G allacher, Appellee

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 250 TH JUDICI AL DISTRICT NO. D-1 -GN-1 2-0 0145 8, H ONO RAB LE JO HN K. DIETZ, JUDGE PRESI DING

M E M O R A N D U M O P I N I O N

I n this i nterlocutory appea l, Texas Parks and Wil dlife Depa rtment (TPWD) challeng es the district cour t’s order denying its pl ea to the jur isdiction as to the suit brought by its former employ ee, Nanc y Gallac her, alleg ing employ ment discrimination an d re t aliation based on disability

. TPW D contends that the district court err ed in denying its plea beca use Gallac her failed
to demonstrate a prima fac ie case for her claims under the Texas Commi ssion on Human Rights Act (TCHRA) and thus, h ad fa i l ed to show there had been a waiver of TPW D’s sovere ign immunit y . We will reverse the district court’s or der a nd rende r judg ment dismiss ing G allache r’s suit.

BACK GR OUND I n 2000, Gallac her beg an employ ment with TPW D as an administrative assistant requiring her to pe rfor

m se cre tarial work. Fr om 2006 to 2010, Gallache r took paid absenc es fromwork using Fa mily and Medica l L eave Act (F ML A) leave , sick leave , and sick-pool leave beca use 1 of her husband’s declining health and later, her own. Gallac her herse lf was diag nosed with morbid obesity , diabetes, c ong estive hea rt failure , and chr onic ane mia. Matt Wagne r w as Gallac her’ s supervisor in the Wil dlife Diversity Prog ram at TPW D from 2006 until 2009. I n 2009, Gallac her was rea ssigne d briefly to work for TPW D’s Acting Direc tor of the Wil dlife Division, Ruben Cantu, who lived and worke d in San Ang elo but c ame to TPW D’s Austin office three day s per wee k. When Cantu was her supervisor, Gallac her would work

on wee kends to make- up for a bsence s exceeding her a

vailable lea

ve. At the end of 2009, Wagne r beca me Gallac her’ s supervisor ag ai n af t er being named TPW D’s Acting Deputy Direc tor of the Wil dlife Division. As a result of Wagne r’s promotion, Gallac her went from assisting him wi t h a prog ram to assi s t i n g h im with division-wide responsibilities. Wagne r worke d Monday throug h Fr iday , 7:30 a.m. to 5:30 p.m., and ref used Gallac her’ s reque st to continue using her wee kend time
to make up for her regular work-w ee k ab s en ce s . He informed Gallac her that beca use he had accepted more responsibilities with his new position, her consistent attendanc e at wor k wa s

nece ssary . Gallac her’ s daily functions included answe ring telephones, keeping Wagne r’s cale ndar and updating it with him daily , direc ting people to appropr iate office personne l, ty ping memos and repor ts, procur ement order ing, taking minutes at meeting s, and supporting staff whom Wagne r supervised. But in her last y ear of emp loy ment at TPW D Gallac her was absent fre quently , often without prior notice t o W agn er , depleting all her monthly leave and all her FML A leave , plus

Sick-pool leave is additional paid l eave available under certa in con d i t i o ns to employ ees 1 who have exhausted all available leave beca use of a cata strophic illness or injury

. Hours in the pool are donated f

rom other e mploy ees w ho do not use them for use by employ ees w ho may

. 2174 hours of sick-pool leave

. During these absenc es, other administrative assistants at TPW D would

take ove r per formanc e of G allache r’s job duties.

Gallac her complains that Wagne r di scrimi n at ed against her during an eight-month period from April to Dec ember of 2010. I n ear ly 2010, Gallac her contends that she complained to TPW D’s Human Resource s Represe ntative Errol Har din that Wag ner had alleg edly made rema rks about her health and a

ttempted to contact he r doctors “ but they ref used to talk to him.” Gallac her
states that Har din met with her and Wagne r to addre ss her complaints. Towar d t h e end of 2010, Gallac her rec eived a draf t employ ee evalua tion from Wagne r with a “Ne eds I mprovement” rating in the cate g ories of “I nteg rity /Accounta

bility ” and “Te amwork” but an o v era ll rating of “Mee ts Ex pecta tions.” Gallac her’ s draf t evalua tion l i s t ed two bases for the lower rating in the “I nteg rity /Accounta

bility ” cate g ory . The first involved an e-ma il with relig ious subject matter that she sent from her work computer, which cause d an internal-a ffa irs investigation afte r a member of the publ ic formally complained t o TPW D about being forwa rded a “prose ly

tiz ing” e-ma il cre ated using g overnme ntal-ag ency resour ces d u ri n g g overnme ntal-ag ency time. Wagne r noted that this incident require d him to speak with the complainant, issue a repor t, and divert his attention from important ag ency tasks. The second indicated basis for the lower “I nteg rity /Accounta

bility ” rating

was Gallac her’ s handling of a disag ree ment about leave -without-pay issues in which she, acc ording
to Wagne r, beca

me upset with an employ ee in Human Resource s. Wagne r stated that this incident

cause d a stressful environment for all involved and require d him to hold a meeting in an eff ort to reestablish communications. Gallac her also rec eived a lower rating in the “Te amwork” cate g ory , with Wagne r citing her err atic work attendanc e. Wagne r noted that Gallac her’ s unpredic table attendanc e had hamper ed prog ress in improving the divi s i o n ’s eff iciency

. Gallac her perc eived that Wagne r

3disli k ed h er b eca use of her health problems, but she acknow ledg ed that Wagne r had viewed her absenc es to be de trimental to the division and to cause him diffic ulties.

Gallac her asser

ts that in September 2010, she complained to TPW D Deputy Direc tor J im L opp about her perf

ormanc e evalua tion and Wagne r’s alleg edly discriminatory trea tment of her and reque sted a transfe r to another position within TPW D. L opp testified that he met with Wagne r in ear ly October 2010 to discuss the complaints Gallach er m ad e about her evalua tion and being unable to make up her time for work absenc es, along with her reque st to move to a differ ent position within the ag ency . After this meeting and based on L opp’s ex p l an at i o n t h at an employ ee using l ea ve under the FML A might not alway s be able to provide advanc e notice of absenc es, Wagn er chang ed the “Te amwork” rating in Gallac h er ’s final evalua tion from “Ne eds I mprovement” to “Mee ts Ex pectations.”

On November 3, 2010, Gallac her re q u es ted two months (320 hours) of sick-pool leave for open-he art surg ery that she elec ted to ha ve on November 16, during what she considere d

a “slow period of time at the office .” Gallac her left blank the “Employ ee Certifica tion” part of the leave -re quest form asking her to indicate whether she intended to return to work whe n re l ease d by her phy sician. Howeve r, Gallac her did attach to the form a cer tification from her surgeon Dr. Michae l Mueller, noting t h at s h e would be incapa citated from November 5, 2010 until approximately J anuar

y 10, 2011. Wagn er approve d half of the paid leave time that Gallac her

2 reque sted, g ranting her 160 hours of sick-pool leave and there by preve nting her from g oing into leave-w i t h o u t-pay status. Be cause Gallac her was absent from work on the wee k befor e her

The surg eon’s predic ted end date for Gallac her’ s period of incapa city was emphasized with 2 capital letters and double underlining as an estima t e (“ E S T

. ”)

. Gallac her admits that she was not rele ased to wor

k in J anuar

y 2011, and as of

November

2012 had still not been rele ased to wor k. 4schedule d surg ery , Wagne r notified her by letter of his de cision to a pprove 160 hours of sick- pool leave

. He also advised her that he would have to decide if TPW D’s business needs would allow her position to rema in open. I n late No v em b er 2010, afte r Gallac her had exhausted all of her leave , Wagne r informed Gallac her that her sick-pool leave would end on Dec emb er 15 and that her employ ment would be ter

minated af

ter Dec ember

17 due to “business ne cessity .” He also invited her to apply for any vaca

nt position for which she was qualified upon her rele ase to return to work. Gallag her’ s position was then posted and filled.

On J anuar

y 31 , 2 0 1 1 , Gallac her filed a Charg e of Discrimination with the Texas Workforce Commi ssion Civil Rights Div i s i o n and the Equal Employ ment Opportunity Commi ssion (EEOC) alleg ing disability discrimination and reta liation. She testified in her 3 deposition tha t f

or eig ht months in 2010, Wagne r discriminated ag ainst her based on her disability by talking to her about her absenc es and doctors’ visits, her weig ht, and why she could not do cer tain
t h i n gs or take differ ent medications. She further testified that in the same time fra me, W agn er reta liated ag ainst her for making a complaint to human resour ces about a problem with rec eipt of her pay chec k by

downg rading one categ ory of her perf ormanc e eva luation. The following month, Gallac her applied to the T e xas Employ ees’ Retirement Sy stem for disability retire ment benef its, cer tify ing under penalty of perjury that she was unable to hold her job, unable to hold any other position offe ring compar able pay , and her disab ling condition was likely to be perma

nent. The application included a statement from Gallac her’ s primary car e doctor, Stephen Dobber fuhl, attesting to Gallac her’ s various medical conditions including hy pothy roidism,

Gallac her’ s char g e of discrimination also alleg ed ag e discrimination and violation of the 3 Gene tic I nformation Nondiscr imination Act, but these claims ar e not pled in her petition. 5diabetes, anxiety disorder, morbid obesity , g out, chronic kidney disease, aortic and car otid stenosis,

pulmonary hy

perte nsion, anemia, and sleep apnea . Ulti ma te ly , D r . D o b b erf

uhl opined that Gallac her

was “inca pacitate d from work.” After revie wing the information in this application, ERS approve d Gallac her’ s disability

retire ment benef

its. There afte r, Gallac her filed the underly ing suit ag ainst TPW D alleg ing disability

based claims and reta liation. TPW D challeng ed her suit in a plea to t h e jurisdiction, which the district court denie d. This interlocutory appea l followed.

DISCUSSIO N TPW D asser

ted in its plea, as it does on appea l, that Gallac her’ s suit should have been dismiss ed for want of subject-matter jurisdiction beca use she failed to provide evidenc e supporting a prima f acie case for he r disability -base d claims and he r re taliation claim. Plea to the juri

sdiction an d standard of review A plea to the jurisdiction is a dilatory plea that functions g ener ally to defe at an action without reg ard to whether the pl aintiff’s asserted claims have merit. Mission C o n s o l

. Indep. Sch. Dist. v. Garcia , 372 S.W .3d 629, 635 (Tex. 2012). Ty pically , a plea to the jurisdiction challeng es whether the plaintiff has alleg ed fac ts that aff irmatively demonstrate the court’s jurisdiction to hear the case , but a plea can also challeng e whether the jurisdictional fac ts alleg ed by the plaintiff exis t. Id

. I n such case s, the court can consider ev i d en ce as nece ssary to resolve any dispute over those fac ts, even if that evidenc e “implicates both the subject-matter jurisdiction of the court and the merits of the case .” Id

. (quoting Texas Dep’ t of Parks & W

ildlif e v. Miranda , 133 S.W .3d 217, 226 (Tex. 2004)).

6When, as here , a plea to the jurisdiction ch al leng es the exis tence of jurisdictional

fac ts and the jurisdictional inquiry implicates the merits of the case , a trial court’s revie w mirrors that of a tradition al summary judgme nt motion. See id

. We revie w de novo a trial court’s ruling on a challeng e to its subject-matter jurisdiction. Id

. at 228. When revie wing a plea to the jurisdiction in which the pleading require ment was met and evidenc e was submitt ed to support th e p l ea that implicates the merits of the case , we take as true all evidenc e favor able to the nonmovant, indulging

ever y rea sonable infe renc e and r esolving any doubts in the nonmovant’s favor

. Id

.
Prim a facie

case under TCHRA A p l ai ntiff may establish a claim of employ ment discrimination under the Texas Commi s sion on Human Rights Act (TCHRA) in two way s. One method is with direc t evidenc e of what the defe ndant d i d and said. Id. at 634. But beca use direc t evidenc e of discriminatory m o t i v e ca n be hard to come by , the courts adopted a second method, the burden- shifting mechanism of McD onnell Douglas Corp. v. Gre en , 411 U.S. 792, 802-05 (1973). Garcia , 372 S.W .3d at 634. Under the McD onnell Douglas burden- shifting framework, the plaintiff is entitled to a presumption of discrimination if she m ee t s an i n i tial burden of establishing a prima fac ie case of discrimination. Id

. A plaintiff must plead basic fac ts establishing a prima fac ie

case , but the defe ndant may prese nt evidenc e neg ating one of the fac ts supporting an element of her claim. Id

. at 637. I f t he defenda nt does so, the plaintiff must submit evidence in support of those fac ts. Id

. The Texas Supreme Court has stated that unless a plaintiff mak i ng an employmentdiscrimination claim under the TCHRA can meet her burden of demonstrating a prima fac ie case on her c laims, there is no wa iver of sove reig n immunit y and the tria l court has no jurisdiction. Id

.

7The TCHRA prohibi t s an employ er from discharg ing an individual, depriving an

individual of any employ

ment opportunity , or adver sely aff ecting the status of an employ ee beca use of disability

. Tex. L ab. Code § 21.051. The TCHRA also prohibits an employ er from reta liating or discriminating ag ainst a person who oppos es a discriminat o ry p ractice, or makes or files a char g e or complaint of di scrimination. Id

. § 21.055. Additionally , in the absence of a showing of undue hardship, the TCHRA prohibits an employ er f r o m f a iling or ref

using to make a rea sonable workplac e

acc ommodation for a known phy sical or mental limit ation of an otherwise qualified individual with

a disability who is a

n employ ment applicant or employ ee. Id

. § 21.128. But employ ers are liable 4 only for discrimination that occur s “bec ause of or on the basis of a phy sical or mental condition that does not impair an individual’s ability to rea sonably perf orm a job.” Id

. § 21.105 (empha sis added)

. Thus, whether the TCHRA applies can turn on whether an individual with a particula r condition has the ability to rea sonably

perf orm a job.

Disabilit y claim s G a ll a c h e r ’ s p e ti ti o n p le a d e d tw o d is a b il it y -base d claims: (1) disability discrimina ti o n and (2) fa i l u re t o acc ommodate her disability

. To establish a prima fac ie case of disability 5

We use “employ er” for convenie nce but note the statute applies to a “re spondent” cover ed 4 under chapte r 21 of the L abor Code, which means a person char g ed in an empl o y me n t- d isc rimination complaint fi l ed under this chapte r and may include an employ er, employ ment ag ency , labor org anization, or cer

tain joint labor-ma

nag ement committees. Tex. L ab. Code §§ 21.002(13), .128. TPW D arg

ues that Gallac her did n o t p l ea d , or exhaust administrative reme dies for, 5 a d i s ab i lity -base d hara ssment claim. To be actionable under the TC HRA, the allege d hara ssment must be based on the plaintiff’s protec ted status. See Tex. L ab. Code § 21.051; see also County of Travis ex rel. Ham ilton v. M anion , No. 03-11-00533- CV, 2012 Tex. App. L EXI S 4004, at *18-20 (Tex. App.—Austin May 1 7 , 2 0 1 2, no pet.) (mem. op.) (noting that althoug h plaintiff’s char g e o f d iscrimination ref

err ed to “discriminatory trea tment,” “hostile actions,” “hostile trea tment , ” “hostile ac tivity ,” and “ hara ssment,” cha rg e conta ined no sug g estion that such “hostile tre atment” or “har assment” was based on any protec ted class and thus contained no alleg ations that would serve 8discrimination, G allache r had to show that she: (1) has a disability ; (2) is qualified f or the job she seeks; and (3) suffe red an adver se employ ment decision solely beca

use of her disability

. Texas Dep’ t of Family & Protective Servs. v. Howard , 429 S.W .3d 782, 787 (Tex. App.—Dallas 2014, pet. filed) (citing Davis v. City of Grapev ine , 188 S.W .3d 748, 757 (Tex. App.—For t Worth 2006, pet. denied) and Turco v. Hoec hst Celanese Corp ., 101 F.3d 1090, 1092 (5th Cir. 1996)). To es t ab l i s h a prima fac ie case of failure to acc ommodate her disability , Gallac her had to show that (1) she is a qualified individual with a disability , (2) the disability and its conseque ntial limit ations wer e known by TPW D, and (3) TPW D failed to make rea sonable acc ommodations for such known limit ations. See Smith v. City of Austin , No. 03-12-00295- CV, 2014 Tex. App. L EXI S 10822 , at *3 (Tex. App.—Austin Sept. 30, 2014, no pet.) (mem. op.) (citing Feist v. Louisi ana, Dep’ t of Justice, Office of the Attorney Gen ., 730 F.3d 450, 452 (5th Cir. 2013)); Davis , 188 S.W .3d at 758; see also Tex. L ab. Code § 21.128 (re quiring rea sonable workplac e acc ommodatio n for known phy sical or mental limitation of qualified individual with dis ability ).

Only the element of “qualific ation,” common to both of Gallac her’ s disability -base d claims, is at issue here

. TPW D contends that Gallac her failed to show that the TCHRA applied to her disability claims beca use she did not show that she is a “qualifie d individual with a disability .” Specifica lly , TPW D notes that Gallac her attested to he r inability to perf orm her job or compar able work in her

application for

disability -re tirement bene fits.
to put defenda

nt on notice of plaintiff’ s g ender -discrimination claim). Her e, the only ref ere nce to hara ssment in Gallac her’ s petition is not linked to any protec ted class: “Plaintiff was not transfe rre d to another posi t i on and the hara ssment and discriminatory trea tment by Wagne r continued.” Simi larly , Gallac her’ s char g e of discrimination alleg es “harassment” from W agn er, but makes no link to disability

. We are not persua ded that these ge nera l refe renc es constituted fa ir notice of, or administrative exhaustion for, a disability -base d hara ssment claim ag ainst TPW D.

9A person who applies for and rec eives disa b i l i t y b enef its is not prec luded from maintaining a disability -discrimination claim if she prese nts cre dible evidenc e that she is otherwise qualified to perf

orm the functions of her job with rea sonable acc ommodations. Cornyn v. Speiser, Krause, Madole, Mende lsohn & Ja ck s o n , 966 S.W .2d 645, 651 (Tex. App.—San Antonio 1998, pet. denied)

. Howeve r, unqualified statements of disability cannot be mi t i gat ed b y subsequent
statements that work could be acc omplished with acc ommodations. Id

. Cou rt s require such mitigating statements to be made when disabili t y benef its are soug ht, not in a subsequent leg al proce eding when a

plaintiff is in dang er of

losing he r disability

discrimination claim. See id

. Her e, in her ERS application for disability retire ment (salar y repla ceme nt) benef

its, Gallac her swor e or a ffirme d under pe nalty of per jury that:

• her disabling condition was likely to be per manent,

• she was mentally or phy sically incapa citated for the further perf ormanc e of duty , unable t o h o ld the position occupie d and unable to hold any other position offe ring compar able pa

y ,

• her condition made her unable to perf orm her duties even with a rea sonabl e acc ommodation,

• she would nee d continued life- long c are , and

• she wa s disabled from a ny and all g ainful employ

ment including sedenta

ry and less stressful employ

ment and conce rned that her disabiliti es along with her ag e would put her a t a disadvanta g e for employ ment.

Gallac her’ s ass er t i o n of total disability rec eived support from her primary car e phy sician, Dr. Dobbe rfuhl, who c ertified to ERS that:

• Gallach er’s condition was likely to be perma nently incapa citating with respe ct to her state of

employ ment,
10• Gallac her’ s condition was l i k ely to be perma nently incapa citating with respe ct to other occ upations,

• his opinion about Gallac her’ s capa city to work was n o t b ased solely on Gallac her’ s opinions reg arding disability but rathe r on her six -y ear history as his patient and he r dec lining func tion, and

• Gallac her continued to have multipl e debilitating medical problems causing her to become inc apac itated from wor k.

Gallac her does not dispute this evidenc e. She relies on her deposition testimony that she could have “g otten back on trac k” and fulfilled her job responsibilities if she had not been let g o, and she points to part of a sente nce f rom Dr. Dobbe rfuhl’s de position surmi sing tha t she probably could perf orm some secr etar ial positions. Howeve r, these statements wer e disclosed in a subsequent leg al proce eding when Gallac her’ s disability -discrimination claim was at risk. They do not mitigate the unqualified statements in the application prese n ted to ERS wher ein Gallac her aff irmed her perma nently incapa citating disability , h er i nability to hold the position she occupie d or any other compar able position, and her inability to perf orm her duties even with a rea sonable acc ommodation. See id. Fur

ther, the statements in the application from Dr. Dobber fuhl cer tify ing to the “per

manently incapa citating ” nature of Gallac her’ s disability wer e made near t h e t i m e i n J anuar y 2011 when Gallac her now alleg es she could have returne d to work. I t is undisputed that Gallac her was unable to return to wor

k at that time and had not be en re lease d to return to wor k almost two y ear s later. On t his rec ord, Galla cher did not meet her burden of demonstrating a material fac t issue as to whethe r s h e could perf orm the essential functions of her job, even with rea sonable

acc ommodations. As such, she was not a “qualifie d individual with a disability .” Be cause Gallac her d i d n o t show that she was a “qualifie d individual with a disability ,” she did not est ab l i s h a p ri m a fac ie case for her disability -base d claims under the TCHRA, and there is no waiver o f
11sovere ign immunit y for those claims ag ainst TPW D. TPW D’s plea to the jurisdiction should have

been g rante d on this g round. TPW D’s issue as to G allache r’s disability -base d claims is sustained.

Retaliati on claim

TPW D further contends that Gallac her did not provide evidenc e s u p p o rting a prima fac ie case for h er re t aliation claim. To establish a prima fac ie case of reta liation under the TCHRA, an employ ee must show that she: (1 ) eng ag ed in a protec ted activity , (2) an adver se employ ment action occur

red, and (3) a causa l link exis ted between t h e protec ted activity and the adverse action. Dias v. Goodman Mfg. Co., L.P. , 214 S.W .3d 672, 676 (Tex. App.—Houston [14 t h Di s t
. ] 2 007, pet. denied) (citing Pineda v. United Parcel Serv., Inc ., 360 F.3d 483, 487 (5th Cir. 2004)). Her e, the parties join issue as to the last element, causation. I n ev al u at i n g the “ca usal link” elemen t of a reta liation claim, courts consider: (1) the extent of the employ ee’ s disciplinary rec ord; (2) whether the employ er followed its policies and proce dures in dismiss ing the employ ee; and (3) the temporal r e la ti o n ship betwee n the protec ted action and the termination. Bacon v. EDS , 219 F. App’ x 355, 357 (5th Cir. 2007).

Gallac her contends that she established a causal l i n k for her reta liation claim by p o i n t i n g to (1) Wagne r’s decision to g rant her 160 hours instead of 320 hours of sick-pool l ea v e, which she contends was not authorized by TPW D’s policies and proce dures, befor e her employ ment

was terminated and (2) the three -month time frame betwee n her termination of employ ment and her complaint to J im L opp about Wag ner’ s treatment of her. We disag ree . Wagne r’s decision to g rant Gallac her 160 hours of sick-pool leave , ins tead of the 320 she h ad re q u es t ed , was not prohibited by TPW D’s policies and proce dures. TPW D’s L eave

12Practice s Policy states that employ ees must obtain their supervisors’ approva l befor e taking planned

absenc es and that supervisors reta in discretion as to their approva l of an employ ee’ s reque sted leave :

• All employ ees are require d to coordina te and rec eive prior approva l from their supervisors for

planned a

bsence s.

. . . .

• Approva l of leave is not automatic. Whil e ever y attempt will be made to approve employ ees’ timely leave reque sts, supervisors have authority and responsibility to use their discretion to ensure that adequate staff rema ins on duty to perf orm the work of the Division progr am.
Whether to approve the 320 hours of sick-pool leave that Gallac her reque sted was a decision left to Wagne r’s discretion, and simply reque sting that leave did n o t automatically entitle Gallac her to approva l of i t. Thus, Gallac her did not establish the causation element of her retaliation claim by showing that TPW D depa rted fr om its pol icies and pr ocedur es. The only rema ining basis for Gallac her’ s causation argument is the three -month period betwee n her complaint to L opp about Wagne r and t h e t ermination of her employ ment. Howeve r, the Supreme Court has noted that in case s wher e “mer e temporal proxi mity ” betwee n an employ er’ s knowledg e of protec ted activity and an adver se employ m en t action is acc epted as sufficie nt evidenc e of causation to establish a prima fac ie case of reta liation, the temporal proxi mity
must be “ver

y close.” Clark Cnty. Sch. Dist. v. Breede n , 532 U.S. 268, 273 (2001). The Court noted that even a three -month g ap b et we en the protec ted activity and the adver se action has been held insufficient t o i n fer a causa l link. See id

. (citing Richmond v. ONEOK, Inc ., 120 F.3d 205, 209 (10th Cir. 1997)). L ikewise h e r e , w e conclude that Gallac her’ s “mer e temporal proxi mity ” argument is insufficient to show a causa l link exis ted betwee n protec ted activity she eng ag ed in and an adver se

13employ

ment act i o n ag ainst her. As such, she has not established a prima fac ie case of reta liation under the TCHRA, and TPWD’s ple a should ha ve been g rante d on this g round. TPW D’s issue as to Gallache r’s re taliation claim is sustained.

CONCLUSION We c onclude that Ga llacher did not present evide nce suppor ting a prima fac ie case under the TCHRA for her disability -base d claims and her reta liation claim, and as a result, TPW D’s

sovere ign immunit y from suit was not wai ved. Acc ording ly , we reve rse the district court’s order denying T PW D’s plea

to the jurisdiction and rende r judg ment dismiss ing G allache r’s suit.

_______________

___________________________ J eff Rose, J ustice Be fore Chief J ustice Jones, J ustices Rose and Goodw in Reverse d and Rende red Filed: De cembe r 31, 2014

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