Texas Department of Insurance v. Som Thomas

Reversed and Rendered and Opinion and Concurring Opinion filed March 19,
2026

In The

Fifteenth Court of Appeals

NO. 15-24-00073-CV

TEXAS DEPARTMENT OF INSURANCE, Appellant

V.

SOM THOMAS, Appellee

On Appeal from the 345th District Court
Travis County, Texas
Trial Court Cause No. D-1-GN-22-003365

CONCURRING OPINION

I concur in the majority’s decision to reverse the district court’s order and
render judgment in favor of TDI. I write only to address the majority’s discussion of
our appellate jurisdiction and the question of “whether we have jurisdiction of claims
arising from unrelated transactions or occurrences that are tacked onto matters
within our exclusive jurisdiction.” Ante at 6. Properly interpreted, Texas
Government Code subsection 22.220(d)(1) gives this Court authority to exercise
appellate jurisdiction over “matters” that fall within our exclusive jurisdiction
conferred by that subsection. Tex. Gov’t Code § 22.220(d)(1). The statutory term
“matter” refers to the entire appeal, so one qualifying claim that fits subsection
22.220(d)(1)’s criteria brings the rest of the case along with it.

The Texas Supreme Court has recognized that this Court “may exercise
appellate jurisdiction over cases from any district and county court, subject to
legislative restriction.” In re Dallas Cnty., 697 S.W.3d 142, 159 (Tex. 2024) (orig.
proceeding) (emphasis added); see Tex. Const. art. 5, § 6(a) (a court of appeals has
appellate jurisdiction which “extend[s] to all cases” within its district); Tex. Gov’t
Code § 22.220(a) (same). Although subsection 22.220(a) confers a grant of general
civil jurisdiction, we need only look to the Legislature’s grant of exclusive appellate
jurisdiction under Texas Government Code subsection 22.220(d)(1) to resolve
whether our jurisdiction over government appeals is claim based or case based. That
subsection states that the “Court of Appeals for the Fifteenth Court of Appeals
District has exclusive intermediate appellate jurisdiction over the following matters
arising out of or related to a civil case: (1) matters brought by or against the state or
a board, commission, department, office, or other agency in the executive branch of
the state government . . . .” Tex. Gov’t Code § 22.220(d)(1) (emphasis added).
Subsection (d)(1) then goes on to list various kinds of claims that would otherwise
fall within subsection (d)(1) that do not trigger this Court’s exclusive appellate
jurisdiction. Id. § 22.220(d)(1)(A)–(O).

The Legislature’s use of the term “matter” is meaningful. See TGS-NOPEC
Geophysical Co. v. Combs, 340 S.W.3d 432, 439 (Tex. 2011) (“We presume that the
Legislature chooses a statute’s language with care, including each word chosen for
a purpose, while purposefully omitting words not chosen.”). Significantly, the term
“matter” commonly refers to an entire case—not merely an individual cause of

2
action. For example, Black’s Law Dictionary treats the term “case” as synonymous
with “matter.” See Matter, BLACK’S LAW DICTIONARY (12th ed. 2024) (“A subject
under consideration, esp. involving a dispute or litigation; CASE (1) <this is the only
matter on the court’s docket today>.”). Texas appellate courts routinely use the term
“matter” to refer to the entire appeal at hand. See, e.g., In re Garrett, No. 15-25-
00006-CV, 2025 WL 841732, at *1 (Tex. App.—15th Dist. Mar. 18, 2025, orig.
proceeding) (mem. op.) (dismissing case because this Court did not have
“jurisdiction over a pending proceeding in this matter”); Navigator Grp. v. Van Dyke,
No. 11-24-00007-CV, 2026 WL 545548, at *1 (Tex. App.—Eastland Feb. 27, 2026,
no pet. h.) (“In this matter, we revisit a familiar dispute involving a 1924 deed in
which George H. Mulkey and Frances E. Mulkey conveyed property to G.R. White
and G.W. Tom while reserving to themselves ‘one-half of one-eighth’ of the
‘minerals and mineral rights’ therein.”); In re Z.A.T., No. 10-12-00045-CV, 2012 WL
1231970, at *1 (Tex. App.—Waco Apr. 11, 2012, no pet.) (mem. op.) (“Appellant,
Richard Owen Taylor, has filed a motion to dismiss his appeal in this matter. . . . The
motion is granted, and the appeal is dismissed.”); Munoz v. Capetillo, No. 13-07-
183-CV, 2007 WL 1845588, at *1 (Tex. App.—Corpus Christi–Edinburg June 28,
2007, no pet.) (per curiam) (mem. op.) (“Appellant has failed to pay the $125.00
filing fee in this matter. . . . The Court, having examined and fully considered the
documents on file, appellant’s failure to remit the $125.00 filing fee, this Court's
notice, and appellant’s failure to respond, is of the opinion that the appeal should be
dismissed.”).

Similarly, the Fourth Court of Appeals held that the statutory phrase “matters
in litigation” encompassed “the entire substance of the lawsuit, not merely the part
of the litigation the parties have actively contested.” H & C Commc’ns, Inc. v. Reed’s
Food Intern., Inc., 887 S.W.2d 475, 478–79 (Tex. App.—San Antonio 1994, no writ).

3
In so holding, the Court looked to the meaning of the term “matter” and then
extrapolated that when combined with “litigation,” the phrase became “simply
another way of saying ‘suits filed’ or ‘pending litigation.’” Id. at 479 n.2, 479 n.3.

When the term “matter” is interpreted in the context of the statute, Texas
Government Code subsection 22.220(d)(1) confers exclusive appellate jurisdiction
over the entire case so long as that case contains one claim that falls within (d)(1)’s
parameters when the list of exclusions is considered. If one such claim exists, the
rest of the appellate case comes along for the ride. That is true even if the case also
includes a claim that is factually unrelated to the qualifying claim or a claim that
falls within subsection (d)(1)’s exclusions. Subsection (d)(1)’s exclusions list
functions only to determine whether there is a claim that triggers this Court’s
exclusive jurisdiction; it does not carve claims out of cases that qualify for
subsection (d)(1) exclusive jurisdiction. Accordingly, this Court should not transfer
the Chapter 21 claim, regardless of whether it relates to the claims that trigger this
court’s exclusive jurisdiction under subsection (d)(1).

/s/ April Farris
April Farris
Justice

Before Chief Justice Brister and Justices Field and Farris.

4

Reversed and Rendered and Opinion filed March 19, 2026

In The

Fifteenth Court of Appeals

NO. 15-24-00073-CV

TEXAS DEPARTMENT OF INSURANCE, Appellant

V.
SOM THOMAS, Appellee

On Appeal from the 345th District Court
Travis County, Texas
Trial Court Cause No. D-1-GN-22-003365

OPINION
Som Thomas sued his former employer, the Texas Department of Insurance
(TDI), and three of his former supervisors. Thomas alleges that he was terminated
because of a disability, in retaliation for requesting disability accommodations, and
in retaliation for filing employment discrimination complaints. He alleges causes of
action under Chapter 21 of the Labor Code, Title I of the Americans with Disability
Act (ADA), and the self-care provision of the Family and Medical Leave Act
(FMLA). The district court dismissed the claims against the individual defendants
but not TDI. We reverse and render judgment for TDI.

BACKGROUND
Thomas worked for TDI as a financial examiner for seventeen-and-a-half
years. He took leave from May 26, 2020 to July 6, 2020, to undergo surgery for
prostate cancer. On his return to work, he allegedly “express[ed] his needs for certain
reasonable accommodations” because of his “medical condition.” 1 Specifically, he
requested to work on “less stressful and strenuous projects” and to be exempt from
training newly hired examiners.
Thomas pleaded that his direct supervisor, Gigi Paul, assigned him “one of
the largest and most complex projects” in the office and also insisted that he help
with training. Thomas informed Paul and Chief Examiner Shawn Frederick that the
new project would require him to work more hours than his condition permitted, and
in any event could not be completed by the deadline without more resources. Paul
and Frederick kept Thomas on the project and insisted that he work on it with
minimal assistance from others. Paul also required him to participate in weekly
regulatory calls.
Thomas sought help from TDI’s Department of Human Resources and
submitted a letter from his physician that he could not work an eight-hour day.
Human Resources informed him that he could work a six-hour day with intermittent
breaks. However, Paul and Frederick made no corresponding adjustments to his
work assignments or deadlines.
On August 2, 2021, Paul sent Thomas a memorandum reprimanding him for
his “resistance to meeting with regulators,” his “refusal to train newer staff

1
We take Thomas’s allegations as true at this stage. In re UMTH Gen. Servs., L.P., 725
S.W.3d 424, 428 (Tex. 2025) (“In assessing a plea to the jurisdiction, we construe a plaintiff’s
pleadings liberally, taking the facts alleged as true.”).

2
members,” and his “lack of professionalism” for raising his voice during a meeting
with Paul. The following month, Frederick directed Thomas by email to “not engage
in unproductive dialogue with [Paul].” Thomas alleges that this was in response to
his requests for an explanation of “what was expected of him” during the regulatory
calls. Thomas then submitted a complaint to Deputy Commissioner Jaime Walker,
who “ratified” the decisions of Paul and Frederick.
Thomas stopped coming to work on September 20, 2021.2 On September 22,
the director of the human resources department emailed Thomas about his absence.
In his response, Thomas referred to an email between his attorney and TDI assistant
general counsel Robert Rucker “stating that [he] had been constructively
discharged.”3 The following day, Rucker emailed Thomas through his attorney that
Thomas would be terminated if he did not return to work or resign by September 27,
2021. Thomas did neither, and Paul fired him by memo dated September 27, 2021.
Thomas sued TDI, Walker, Frederick, and Paul under Title I of the ADA, the
FMLA, and Chapter 21 of the Labor Code. TDI and the individual defendants filed
a plea to the jurisdiction, with evidence, asserting that immunity bars Thomas’ suit.
Thomas filed a response and attached his affidavit. The trial court denied relief as to
TDI. TDI timely appealed.4

APPELLATE JURISDICTION
We start by determining our own jurisdiction. No party has questioned this
Court’s jurisdiction, but we have an “affirmative obligation ‘to ascertain that subject

2
We take the following sequence of events from a memorandum Paul sent to Thomas
concerning his termination.
3
The email exchange is not in the record.
4
TEX. CIV. PRAC. & REM. CODE § 51.014(a)(8).

3
matter jurisdiction exists.’” 5
The Texas Constitution provides each court of appeals with jurisdiction that
is “co-extensive with the limits of [its] . . . district[]” and that “extend[s] to all cases”
over which the district and county courts have jurisdiction “under such restrictions
and regulations as may be prescribed by law.” 6 The Legislature granted this Court
“exclusive intermediate appellate jurisdiction” over three categories of “matters
arising out of or related to a civil case”: (1) those brought by or against the State,
with enumerated exceptions; (2) those involving a challenge to the constitutionality
or validity of a state statute or rule and in which the attorney general is a party; and
(3) “any other matter as provided by law.” 7 This case—in part—falls under the first
category of this Court’s jurisdiction: TDI is a state agency,8 and none of the statutory
exceptions apply to claims under the FMLA or the ADA. 9 However, the statute
expressly excludes “a proceeding brought under Chapter 21, Labor Code” from this
Court’s exclusive jurisdiction. 10
That exclusion does not deprive us of the power to decide the claim. Section
22.220(a) of the Government Code provides that each court of appeals has
jurisdiction “of all civil cases within its district.”11 This Court’s district “is composed
of all counties in this state,” 12 so we have “jurisdiction over civil cases appealed from

5
Univ. of Tex. Rio Grande Valley v. Oteka, 715 S.W.3d 734, 744 n. 49 (Tex. 2025) (quoting
City of Houston v. Rhule, 417 S.W.3d 440, 442 (Tex. 2013)).
6
TEX. CONST. art. V, § 6(a).
7
TEX. GOV’T CODE § 22.220(d).
8
TEX. LABOR CODE § 402.001(a) (referring to TDI as a “state agency”).
9
See generally TEX. GOV’T CODE § 22.220(d).
10
Id. § 22.220(d)(1)(M).
11
Id. §22.220(a)
12
Id. § 22.201(p).

4
every county.”13 A statute commands that appeals “falling outside” our exclusive
jurisdiction must be transferred to another court of appeals, but that command does
not mean we lack jurisdiction over those cases.14 On the contrary, the power to
transfer means that we possess jurisdiction but “should not exercise it in deference
to another court with concurrent jurisdiction.” 15
TDI argues in a letter brief that we should exercise our general jurisdiction to
decide every case that includes one matter within our exclusive jurisdiction. TDI
points out that even though the Legislature made our exclusive jurisdiction
dependent on “matters arising out of or related to a civil case,” it gave us general
jurisdiction over “all civil cases” within our district.16 The Legislature also
prohibited the Supreme Court from transferring any “case or proceeding”—not
“matter”—from this Court that was properly filed here.17
We generally would not decide an appeal if all claims fall outside of our
exclusive jurisdiction. 18 But we unquestionably have jurisdiction over the federal
FMLA and ADA claims, and the Chapter 21 claim arises from the same facts and
involves parallel questions of law. 19 We alone can decide the two federal claims as
we have exclusive jurisdiction, and the rules of civil procedure have long required

13
Kelley v. Homminga, 706 S.W.3d 829, 832 (Tex. 2025).
14
Id. at 833 (citing TEX. GOV’T CODE § 73.001(c)).
15
Id.
16
See TEX. GOV’T CODE § 22.220(a), (d).
17
Id. § 73.001(b).
18
Kelley, 706 S.W.3d at 833 (inappropriately-filed cases “must be transferred”). But cf. id. at
832 (This Court’s “expansive jurisdiction ensures that … cases can be transferred into the Fifteenth
Court to equalize its docket.”).
19
In contrast, Kelley involved two consolidated appeals that were entirely outside our
exclusive intermediate jurisdiction. See id. at 830 (“In each case, the defendants noticed their
appeal to the Fifteenth Court while conceding that the appeal is not within the Fifteenth Court’s
exclusive jurisdiction.”).

5
or allowed claims involving the same transaction or occurrence to be joined in one
proceeding. 20 We do not reach—and therefore express no opinion on—whether we
have jurisdiction of claims arising from unrelated transactions or occurrences that
are tacked onto matters within our exclusive jurisdiction. But we do not read our
jurisdictional statute to require separate appeals in separate courts of appeals arising
from a single occurrence.

DISCUSSION
Having concluded that we have jurisdiction, we turn to whether the trial court
decided its own jurisdiction correctly.
TDI is a state agency 21 and is thus immune from suit unless that immunity is
expressly waived by the Legislature or validly abrogated by Congress.22 An agency
may assert immunity in a plea to the jurisdiction,23 which “may challenge the
pleadings, the existence of jurisdictional facts, or both.” 24 When the issue is pleading
sufficiency, we determine if the “pleadings, construed in favor of the [pleader],
allege sufficient facts affirmatively demonstrating the court’s jurisdiction to hear the
case.”25 But when the defendant challenges the existence of jurisdictional facts, we

20
See TEX. R. CIV. P. 97(a) (requiring compulsory counterclaim in same proceeding if it is
“within the jurisdiction of the court, not the subject of a pending action, … [and] it arises out of
the transaction or occurrence” as the pending claim); id. R. 38(a) (limiting joinder of third-party
claims to those “arising out of the transaction or occurrence that is the subject matter of the
plaintiff’s claim”); id. R. 40(a) (permitting joinder of plaintiffs or defendants involving claims
asserted by or against them “arising out of the same transaction, occurrence, or series of
transactions or occurrences and if any question of law or fact common to all of them will arise in
the action”).
21
TEX. LABOR CODE § 402.001(a).
22
Univ. of Tex. at El Paso v. Herrera, 322 S.W.3d 192, 195 (Tex. 2010).
23
Tex. Health & Human Servs. Comm’n v. Pope, 674 S.W.3d 273, 280 (Tex. 2023).
24
Tex. Dep’t of Transp. v. Self, 690 S.W.3d 12, 19 (Tex. 2024).
25
Id.

6
must “must move beyond the pleadings and consider evidence when necessary to
resolve the jurisdictional issues, even if the evidence implicates both subject-matter
jurisdiction and the merits of a claim.”26 The analysis then “mirrors that of a
traditional summary judgment.” 27 We review a trial court’s ruling on a jurisdictional
plea de novo. 28

Federal Claims

We start with Thomas’s federal claims. TDI argues that Thomas failed to
allege a valid waiver of immunity for his claims under the FMLA or the ADA. 29
The FMLA guarantees eligible employees twelve workweeks of leave in any
twelve-month period for various reasons.30 Employers may not interfere with an
employee’s exercise of rights under the statute or discriminate against an employee
who exercises those rights.31 Thomas invokes the self-care provision, which entitles
an employee to take leave “because of a serious health condition that makes the
employee unable to perform the functions of the position of such employee.”32 Both
the United States Supreme Court and the Supreme Court of Texas have held that
Congress did not validly abrogate the States’ sovereign immunity from suit based on
the self-care provision. 33

26
Pope, 674 S.W.3d at 281.
27
Tex. Dep’t of Transp. v. Lara, 625 S.W.3d 46, 52 (Tex. 2021) (quoting Mission Consol.
Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629, 635 (Tex. 2012)).
28
Fraley v. Tex. A&M Univ. Sys., 664 S.W.3d 91, 97 (Tex. 2023).
29
Thomas does not argue that the Legislature has waived immunity from suit under either
federal law.
30
29 U.S.C. § 2612(a).
31
Id. § 2615(a)(1), (2).
32
Id. § 2612(a)(1)(D).
33
See Coleman v. Court of Appeals of Maryland, 566 U.S. 30, 38 (2012) (“Standing alone,
the self-care provision is not a valid abrogation of the States’ immunity from suit.”); Herrera, 322
S.W.3d at 201 (“Congress exceeded its § 5 abrogation authority when it subjected the States to
7
Thomas’s ADA claim meets the same fate. Title I of the ADA prohibits
employers from discriminating against disabled individuals in the terms and
conditions of employment.34 The United States Supreme Court has held that
Congress did not validly abrogate immunity for private suits under Title I. 35
The trial court erred by denying the plea to the jurisdiction as to these claims.

Chapter 21

Under Chapter 21 of the Labor Code, an employer may not discriminate
against an individual “because of” certain characteristics, including disability,36 and
must reasonably accommodate the physical or mental limitations of disabled
employees who are “otherwise qualified” for the job. 37 The statute also prohibits
retaliating against an employee who—as here—files a complaint of discrimination.38
Chapter 21 waives sovereign immunity, “but only if the plaintiff alleges facts that
would establish that the state agency violated [Chapter 21] and, when challenged
with contrary evidence, provides evidence that is at least sufficient to create a
genuine fact issue material to that allegation.” 39
In the absence of direct evidence of discrimination, we employ the McDonnell
Douglas burden-shifting framework. 40 The employee has the initial burden to plead

private-damages suits under the FMLA’s self-care provision.”); see also Meeks v. Tex. Dep’t of
Aging & Disability Servs., No. 1:16-CV-1135-RP, 2017 WL 8182825, at *3 (W.D. Tex. July 19,
2017) (explaining Coleman applies equally to retaliation and interference claims).
34
42 U.S.C. § 12112(a)–(b).
35
Bd. of Trustees of Univ. of Alabama v. Garrett, 531 U.S. 356, 374 & n.9 (2001); see Sullivan
v. Tex. A&M Univ. Sys., 986 F.3d 593, 595–96 (5th Cir. 2021).
36
TEX. LABOR CODE § 21.051(1).
37
Id. § 21.128(a).
38
Id. § 21.055(3).
39
Tex. Tech Univ. Health Scis. Ctr.-El Paso v. Flores, 709 S.W.3d 500, 504–05 (Tex. 2024).
40
Id. at 505 (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–05 (1973)).

8
facts raising a prima facie case of discrimination.41 If the employee is successful, a
presumption of discrimination arises that is sufficient to support the trial court’s
exercise of jurisdiction.42 The employer can rebut the presumption by presenting
evidence of a legitimate, nondiscriminatory reason for the disputed action.43 Once
rebutted, the presumption shifts back to the plaintiff to present evidence that the
employer’s stated reason is pretextual.44

Affidavit

Thomas relies heavily on his affidavit, which was attached to his response in
the trial court. TDI argues that the trial court should not have considered the affidavit
because courts should not consider facts outside the pleadings in determining
jurisdiction. But TDI’s plea is explicitly a challenge to the existence of jurisdictional
facts, and deciding that type of plea requires considering evidence outside the
pleadings when necessary to resolve the jurisdictional issue.45
This affidavit, however, proves little. Except for the issue whether Thomas
submitted an internal appeal of his termination, which we discuss below, the affidavit
restates the allegations contained in his pleading, sometimes verbatim. “[A]n
affidavit that is nothing more than a sworn repetition of allegations in the pleadings
… has no probative force, as the statements are no more than conclusions or a mere
surmise or suspicion.” 46

41
Alamo Heights Indep. Sch. Dist. v. Clark, 544 S.W.3d 755, 782 (Tex. 2018).
42
Id.
43
Id.
44
Id.
45
See, e.g., Pope, 674 S.W.3d at 281. Even on a challenge to the sufficiency of the pleadings,
courts must consider relevant jurisdictional evidence. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d
547, 555 (Tex. 2000).
46
Fortitude Energy, LLC v. Sooner Pipe LLC, 564 S.W.3d 167, 183 (Tex. App.—Houston
[1st Dist.] 2018, no pet.) (quoting Brookshire Katy Drainage Dist. v. Lily Gardens, LLC, 333
9
Disability Discrimination

An employer violates Chapter 21 “if because of … disability … the employer
… discharges an individual, or discriminates in any other manner against an
individual in connection with compensation or the terms, conditions, or privileges
of employment.”47 Discrimination “because of” disability means “discrimination
because of or on the basis of a physical or mental condition that does not impair an
individual’s ability to reasonably perform a job.”48 To establish a prima facie case of
disability discrimination, a plaintiff must show that he (1) has a disability; (2) is
otherwise “qualified” for the job; and (3) suffered an adverse employment decision
because of his disability.49
First, TDI argues that Thomas failed to allege a disability. Chapter 21 defines
a disability as “a mental or physical impairment that substantially limits at least one
major life activity of that individual, a record of such an impairment, or being
regarded as having such an impairment.”50 TDI contends that Thomas did not plead
that his cancer diagnosis substantially limited any life activity, that there was a record
of such impairment, or that anyone at TDI regarded him as disabled. But Chapter 21
defines “major life activity” to include “working,”51 and Thomas pleaded that, after
returning to work, he “express[ed] his needs for certain reasonable medical

S.W.3d 301, 308 (Tex. App.—Houston [1st Dist.] 2010, pet. denied))); see Hobson v. Francis,
2019 WL 2635562, at *11 (Tex. App.—Fort Worth June 27, 2019, no pet.) (“Hobson’s affidavit”
was not probative evidence because it “simply rehashed his petition’s allegations in large part.”).
47
TEX. LABOR CODE § 21.051(1).
48
Id. § 21.105.
49
See Donaldson v. Tex. Dep’t of Aging & Disability Servs., 495 S.W.3d 421, 436 (Tex.
App.—Houston [1st Dist.] 2016, pet. denied); Tex. Dep’t of Fam. & Protective Servs. v. Howard,
429 S.W.3d 782, 787 (Tex. App.—Dallas 2014, pet. denied).
50
TEX. LABOR CODE § 21.002(6).
51
Id. § 21.002(11-a).

10
accommodations of his medical condition,” including “work[ing] on less stressful
and strenuous projects” and not training new hires. Liberally construed, his
pleadings sufficiently allege a disability.52
Second, TDI argues that Thomas did not plead that he was terminated
“because of” his disability.53 The causation standard at this stage “is not onerous and
can be satisfied merely by proving close timing between the protected activity and
the adverse action.”54 Thomas pleaded that TDI fired him “because of [his]
disability” but did not cite to any facts. On appeal, Thomas notes that he pleaded that
his supervisors were well aware of his condition and terminated him shortly after he
started asking for accommodations. Although merely pleading the elements of a
theory is usually not enough to give notice of the underlying facts, 55 we liberally
construe Thomas’s pleadings at this stage.56 Liberally construed, his pleadings are
sufficient to allege a causal connection between his disability and the termination.

52
Thomas pleaded a separate claim for “failure to engage in required interactive process”
under Chapter 21. When an employee informs his employer of a disability and resulting limitations
and suggests a reasonable accommodation, “the employer and employee should engage in flexible,
interactive discussions to determine the appropriate accommodation.” Hagood v. Cnty. of El Paso,
408 S.W.3d 515, 525 (Tex. App.—El Paso 2013, no pet.). But failure to engage in the interactive
process is not a separate statutory violation. Harmon v. Tex. S. Univ., 672 S.W.3d 684, 694 n.3
(Tex. App.—Houston [14th Dist.] 2023, no pet.).
53
TDI acknowledges that the written reprimand and Federick’s email are related to his
requests for accommodations but contends that neither event is an adverse employment action.
Generally, adverse employment actions “involve hiring, granting leave, discharging, promoting,
and compensating employees,” and not “disciplinary filings, supervisor’s reprimands, poor
performance reviews, hostility from fellow employees, verbal threats to fire, criticism of the
employee’s work, or negative employment evaluations.” Anderson v. Houston Cmty. Coll. Sys.,
458 S.W.3d 633, 644 (Tex. App.—Houston [1st Dist.] 2015, no pet.). We agree with TDI that
neither the memo nor the email qualify as adverse employment actions.
54
Alamo Heights, 544 S.W.3d at 782.
55
See In re First Reserve Mgmt., L.P., 671 S.W.3d 653, 662 (Tex. 2023) (“The pleading of a
legal theory, without more, does not provide notice of the facts that could be pleaded to support
that theory.”).
56
See Self, 690 S.W.3d at 19.

11
The next question is whether TDI presented evidence of a non-discriminatory
reason for the termination. The evidence attached to TDI’s plea includes Paul’s
September 27, 2021, letter informing Thomas of his termination. The letter
reproduces portions of TDI’s employment manual stating that employees who fail to
report to work or inform their supervisor of their absence “may be presumed to have
abandoned his or her job” and will be removed from the payroll. The letter then says
that Thomas had not reported to work since September 21, 2021, and never informed
anyone or requested permission. Thomas does not dispute that he violated these
provisions of the TDI employment manual. Accordingly, TDI carried its burden to
present evidence of a legitimate, nondiscriminatory reason for the termination. 57
Thomas responds that there is a fact issue whether his complaints of
discrimination were the real reasons for his termination. He contends that Paul’s
memo “undeniably states” that the reason for his absence was that the actions of his
supervisors constructively terminated him. But that is not what the memo says. The
memo contains a timeline of events starting on September 21. The next day, TDI’s
director of Human Resources emailed Thomas that TDI was concerned about his
absence from work. Thomas responded with an email that “referenced a
communication between [his] attorney, Mark Downey, and Robert Rucker, TDI
Assistant General Counsel, stating that [Thomas] had been constructively
discharged.” This does not say that Rucker ever said so, or if this was merely a
conclusory allegation by Thomas’s own attorney. The context supports the latter,
since Rucker replied the next day that Thomas “would be terminated” if he did not
report to work within two business days.
It is difficult to know what to make of this argument because constructive

57
See Martin v. J.A.M. Distrib. Co., 674 F. Supp. 2d 822, 838 (E.D. Tex. 2009) (unrebutted
evidence that employee violated company absenteeism policy established nondiscriminatory
pretext for termination).

12
discharge is a distinct type of discrimination claim. It requires proof that an
employee resigned and the employer “made the working conditions so intolerable
that a reasonable person would feel compelled to resign.” 58 Subjecting an employee
to such working conditions is “functionally the same as an actual termination.”59
Constructive discharge is not available when an employer formally terminates an
employee, which is what Thomas alleges happened to him. 60
Thomas also argues that TDI’s disregard of his internal appeal of the
termination is some evidence that his complaints were the true reason for his
termination. Thomas argues that he “submitted an appeal of the termination
decision” on September 29, 2021, and that TDI took no action despite the existence
of a “clear procedure for processing appeals of this nature.” To support these
arguments, Thomas relies on his affidavit, Paul’s memo, and paperwork TDI sent
him after separation. The affidavit restates the allegation that he submitted an appeal
that was ignored by TDI, but gives no further details. Paul’s memo states that “filing
a complaint with TDI regarding your termination” is an option and refers Thomas to
procedures outlined in the employee manual, the relevant portions of which are not
in the record. The separation paperwork is titled “Reasons for Separation” and gives
Thomas’s name, job title, contact information, and his self-reported reasons for
separating from the agency.61 Nothing in that document mentions filing an appeal.
Because none of the documents that Thomas relies on show that he actually filed an

58
Fossil Grp., Inc. v. Harris, 691 S.W.3d 874, 884 n.26 (Tex. 2024) (quoting Waffle House,
Inc. v. Williams, 313 S.W.3d 796, 805 (Tex. 2010)).
59
Gardner v. Abbott, 414 S.W.3d 369, 381 (Tex. App.—Austin 2013, no pet.) (citing
Pennsylvania State Police v. Suders, 542 U.S. 129, 148 (2004)).
60
See Fossil Grp., 691 S.W.3d at 883–84 (treating constructive-discharge and actual-
termination claims as distinct); Waffle House, 313 S.W.3d at 805–06 (same).
61
He wrote: “Retaliatory approach from Gigi Paul and Shawn Frederick while on FMLA and
the unresponsive attitude from Senior Management on my complaints.”

13
appeal, he cannot raise a fact issue on pretext.

Failure to Accommodate

Thomas’ failure-to-accommodate claim fares no better. Chapter 21 requires
employers to accommodate a known physical or mental limitation “of an otherwise
qualified individual with a disability” who is an employee.62 To assert a prima facie
case of failure to accommodate, Thomas must show that: (1) he had a disability; (2)
TDI had notice of his disability; (3) he could perform the “essential functions” of his
position with “reasonable accommodations”; and (4) TDI refused to make such
accommodations.63
First, TDI argues that Thomas never alleges that he was disabled. We disagree,
for the reasons we outlined in our discussion of his discrimination claim. But we
agree with TDI that Thomas’ request to be exempt from his responsibility to train
new examiners was not reasonable. An accommodation is reasonable if it would
enable the employee to perform the job’s essential functions. 64 “A function is
‘essential’ if it bears more than a marginal relationship to the employee’s job.”65 In

62
TEX. LABOR CODE § 21.128(a).
63
El Paso Cnty. Water Improvement Dist. No. 1 v. Trevizo, 697 S.W.3d 259, 276 (Tex. App.—
El Paso 2023, no pet.).
Our sister courts are divided on whether the McDonnell Douglas burden shifting
framework applies to reasonable accommodations claims under Chapter 21. Compare Donaldson,
495 S.W.3d at 439 (“We note that the McDonnell Douglas burden-shifting framework is not
applicable to a reasonable accommodation claim.”), with Tex. State Tech. Coll. Sys. v. Donavan,
2025 WL 1403562, at *14 (Tex. App.—Beaumont May 15, 2025, pet. denied) (applying
McDonnell Douglas). Until the Supreme Court of Texas addresses the issue or revisits the
application of McDonnell Douglas more generally, we will continue to apply it.
64
Molina v. DSI Renal, Inc., 840 F. Supp. 2d 984, 993 (W.D. Tex. 2012) (interpreting Chapter
21).
65
Adams v. City of Pineland, 2024 WL 2064384, at *5 (Tex. App.—Tyler May 8, 2024, no
pet.) (citing Tex. Dep’t of Fam. & Protective Servs. v. Howard, 429 S.W.3d 782, 790 (Tex. App.—
Dallas 2014, pet. denied)); accord Tex. Dep’t of Aging & Disability Servs. v. Comer, 2018 WL
521627, at *4 (Tex. App.—San Antonio Jan. 24, 2018, no pet.).

14
determining whether a function is essential, we consider among other things, written
job descriptions. 66
TDI’s evidence includes Thomas’s written job description, which includes a
bulleted list of “essential tasks.” Thomas points out that there is no specific entry for
training newly hired examiners. But we construe written instruments as a whole
rather than focusing on specific words and phrases.67 The “General Description” in
the first paragraph of his job description says the “[w]ork involves” three general
categories, one of which is “supervising and training other examiners.” A bulleted
list of “essential functions” follows, along with the percentage of time each task
should take. These items include “plans and initiates financial statutory
examinations”; “acts as Examiner in charge and interacts directly with managerial
personnel during examination of insurers-including multi-state insurers”;
“supervises assisting examiners as assigned” and “other duties as assigned.” Reading
the list together with the opening paragraph, “training examiners” is one of the “other
duties as assigned” that are no less essential for not being specifically enumerated.

Retaliation

To establish a prima facie case of retaliation, an employee must show that (1)
he engaged in protected activity, (2) he experienced a material adverse employment
action, and (3) a causal link exists between the protected activity and the adverse
action.68 TDI argues that Thomas failed to adequately plead the first two elements.
[CR 29-32].

66
Adams, 2024 WL 2064384, at *5. The other non-exclusive factors include (1) the
employer’s judgment about whether the function is an essential one, (2) the amount of time that
the employee spends on the function, (3) the consequences of allowing the employee not to
perform it, and (4) work experience of persons holding the position. Id. (citing LeBlanc v. Lamar
State Coll., 232 S.W.3d 294, 300 n.3 (Tex. App.—Beaumont 2007, no pet.)).
67
See Devon Energy Prod. Co., L.P. v. Sheppard, 668 S.W.3d 332, 343 (Tex. 2023).
68
Alamo Heights, 544 S.W.3d at 782.

15
Chapter 21 protects an employee who: “(1) opposes a discriminatory practice;
(2) makes or files a charge; (3) files a complaint; or (4) testifies, assists, or
participates in any manner in an investigation, proceeding, or hearing.” 69 Thomas
pleaded that he was terminated as “a direct result of [his] request for accommodation
and complaint of discrimination.” To invoke anti-retaliation protection, an internal
request for accommodation must alert the employer to the employee’s “belief that
disability discrimination was at issue.”70
TDI argues that Thomas’s requests for accommodation did not meet that
standard, but Thomas pleaded that he brought Paul and Frederick’s refusal to make
reasonable accommodations and other alleged discrimination to Walker’s attention,
who “refused to investigate [his] complaints, [or] take corrective measures.” His
pleading is sufficient to allege that he engaged in a protected activity. However, his
retaliation claims fail for the same reason as the discrimination and accommodation
claims: Thomas failed to raise a fact issue on whether TDI’s nondiscriminatory
reason for the termination—his abandonment of work—was pretextual.

Repleading

“When a plaintiff fails to plead facts sufficient to demonstrate the trial court's
jurisdiction, courts generally should afford the plaintiff the opportunity to replead
unless ‘the pleadings affirmatively negate the existence of jurisdiction.’”71 Thomas’s
pleadings affirmatively negate jurisdiction over the FMLA and ADA claims but not
necessarily over the Chapter 21 claim. However, Thomas already amended his
pleading in response to TDI’s jurisdictional plea. Once a defendant’s plea gives the

69
TEX. LABOR CODE § 21.055.
70
Lara, 625 S.W.3d at 60.
71
Fraley, 664 S.W.3d at 101 (quoting Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d
217, 226–27 (Tex. 2004)).

16
plaintiff notice of the jurisdictional defect, and the plaintiff responds with an
amended pleading that is still insufficient, the trial court should dismiss the case with
prejudice.72 Thomas is not entitled to an opportunity to amend.73

CONCLUSION
We reverse the district court’s order and render judgment dismissing Thomas’s
claims against TDI.

/s/ Scott A. Brister
Scott A. Brister
Chief Justice

Panel consists of Chief Justice Brister and Justices Field and Farris.
Concurring Opinion by Justice Farris

72
Id.; accord Matzen v. McLane, 659 S.W.3d 381, 396 (Tex. 2021) (noting court would deny
plaintiff’s request to amend “because he has already been permitted to amend his petition to no
avail”).
73
Because he is not entitled to an opportunity to amend, there is no reason for us to consider
TDI’s argument that the trial court lacked jurisdiction over his request for punitive damages.
However, we note that Chapter 21 permits a complainant to “recover punitive damages against a
respondent, other than a respondent that is a governmental entity.” TEX. LABOR CODE
§ 21.2585(b) (emphasis added).

17