Dugger v Stephen F. Austin State University
MEMORANDUM OPINION AND ORDER -. Signed by Judge William C. Bryson on 2/6/2017. (ch, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
STEPHEN F. AUSTIN STATE
Case No. 2:15-CV-1509-WCB
MEMORANDUM OPINION AND ORDER
Before the Court is defendant Stephen F. Austin State University’s consolidated motion
to dismiss the complaint and motion for summary judgment. Dkt. No. 34. The motion to
dismiss is GRANTED IN PART and DENIED IN PART. The motion for summary judgment is
The facts, viewed most favorably to the plaintiff, as they must be on the defendant’s
motions to dismiss and for summary judgment, are as follows:
Plaintiff Timothy Dugger was employed as a police officer for the defendant Stephen F.
Austin State University (“SFA”), an agency of the State of Texas. In August 2014, he was
assigned to the University Police Department’s Parking and Traffic Office. On August 23, 2014,
a Saturday, Mr. Dugger fell while at work and injured his back. He reported his injury to his
supervisor Clayton Harrington, who told Dugger that he needed to be seen by SFA’s
Environmental Health, Safety, and Risk Management Department (“the Health and Safety
Office”) to report his injury and “fill out the necessary paperwork.” Dkt. No. 38-1, Plaintiff’s
Exh. 1, at 2. Because it was a Saturday, the Health and Safety Office was closed, so Dugger
waited until the office opened on Monday, August 25, to report his injury.
On August 25, Mr. Dugger went to the Health and Safety Office where he filled out a
report of the incident. The medical staff at the Health and Safety Office evaluated Mr. Dugger at
that time and referred him to a local physician for further evaluation and treatment. Dkt. No. 381, at 4, Plaintiff’s Exh. 1, at 2. After Mr. Dugger had completed the paperwork regarding the
incident, the Health and Safety Office forwarded his report of injury to the State Office of Risk
Management (“SORM”), the State’s workers’ compensation insurance carrier, which initiated
the process of filing for workers’ compensation benefits for Mr. Dugger’s injury. See Dkt. No.
34-2, Defendant’s Exh. B.
Mr. Dugger sought medical treatment from Dr. David Duane Smyers, the physician to
whom he had been referred. Dr. Smyers examined Mr. Dugger and cleared him to return to work
with restrictions. Dr. Smyers’s restrictions directed that Mr. Dugger was not to engage in
prolonged standing, kneeling/squatting, bending/stooping, pushing/pulling, twisting or climbing,
and further directed that he was to be limited to a maximum of two hours of walking per day.
Dkt. No. 34-3, Defendant’s Exh. C. Dr. Smyers determined that he could not diagnose the extent
of Mr. Dugger’s injuries without an MRI examination, but in the meantime he recommended a
course of physical therapy.
The Assistant Chief of Police for the University Police Department reviewed Dr.
Smyers’s restrictions and arranged for a light-duty assignment for Mr. Dugger consistent with
Dkt. No. 34-4, Defendant’s Exh. D.
The light-duty assignment was
memorialized in an “Offer of Employment” dated August 29, 2014, and signed by SFA’s police
chief, Marc Cossich. The “Offer of Employment” noted that SFA’s Workers’ Compensation
Division was “in receipt of medical information from your treating physician . . . outlining the
restrictions under which you are able to return to work.” It added that “[t]he University Police
Department will abide by the physical limitations as outlined by your physician.” The Offer
further provided, as to the expected duration of the light-duty assignment, that it was “contingent
on the need for additional help working the front counter during the peak time of the beginning
of the Semester. Once the need has passed, then the Light Duty Assignment will end.” Dkt. No.
34-5, Defendant’s Exh. E.
Mr. Dugger accepted the light-duty assignment on September 2, 2014. However, the
assignment ended on September 4 because, according to Mr. Dugger’s supervisor, the peak
workload period for the Parking and Traffic Office at the outset of the semester had ended. At
that point, the University Police Department advised Mr. Dugger that it could no longer
accommodate his restrictions by providing him with light-duty work and that he would not be
allowed to return to work until his physicians gave him a full-duty release.
Dr. Smyers submitted supplemental reports to SFA on September 4, September 18, and
September 29 in which he continued to advise that Mr. Dugger could return to work, but subject
to the restrictions previously imposed. See Dkt. No. 34-8, at 2-4, Defendant’s Exh. H.
After Mr. Dugger completed a course of physical therapy with no resulting improvement
in his condition, SORM approved an MRI examination, and in October 2014 Mr. Dugger
underwent an MRI.
The results of the examination showed “left L4-5 foraminal stenosis
secondary to a posterior lateral disc herniation and annular tear and facet degenerative changes
and facet degenerative changes also noted at L3-4 and L5-S1.” Dkt. No. 38-1, at 11, Plaintiff’s
Exh. 2. Mr. Dugger had another medical assessment on October 13, 2014, which resulted in a
diagnosis of herniated lumbar nucleus pulposus. The report of that examination continued to
state that Mr. Dugger could return to work, but subject to the previously imposed restrictions.
Dkt. No. 34-8, at 7, Defendant’s Exh. H.
Another physician, Dr. James Michaels, examined Mr. Dugger on December 2, 2014.
Dr. Michaels noted that Mr. Dugger was complaining of numbness in his leg and pain radiating
down his left leg. Dr. Michaels concluded that the MRI showed a “left paracentral bulge with
the exiting L4 nerve being abutted by the disc.” His assessment was the possibility of right
sacroilitis with myofascial pain. Dr. Michaels did not think surgical intervention was necessary
at that time, however. Dkt. No. 38-1, at 9, Plaintiff’s Exh. 2.
Mr. Dugger was then evaluated by Dr. Michael Grandison on December 15, 2014. Dkt.
No. 34-8, at 8, Defendant’s Exh. H; Dkt. No. 38-1, at 11, Plaintiff’s Exh. 2. Like the previous
physicians who had treated Mr. Dugger, Dr. Grandison released Mr. Dugger to work, but subject
to activity restrictions, including not walking more than two hours per day. Dkt. No. 34-8, at 8,
Defendant’s Exh. H; Dkt. No. 38-1, at 11, Plaintiff’s Exh. 2.
In December 2014, Mr. Dugger arranged to be examined by Dr. Kenneth Fults, a
specialist in interventional pain management. On December 22, 2014, Dr. Fults directed that Mr.
Dugger was to remain off work until his next appointment, on January 7, 2015. Dkt. No. 34-7,
Defendant’s Exh. G. Following that appointment, Dr. Fults assessed Mr. Dugger with “lumbar
disc protrusion with radiculitis,” and “thoracic and lumbar strain/sprain.” Dkt. No. 34-8, at 9,
Defendant’s Exh. H. On Dr. Fults’s recommendation, SORM approved an epidural steroid
injection, which was administered on January 27, 2015, to the L4-L5 region of Mr. Dugger’s
spine. Dkt. No. 38-1, at 12, Plaintiff’s Exh. 2. The injection produced no change in Mr.
Dugger’s symptoms. Id.
On March 10, 2015, Mr. Dugger filed a charge of discrimination with the Texas
Workers’ Compensation Commission. He claimed that he had been discriminated against in
violation of chapter 21 of the Texas Labor Code and the Americans with Disabilities Act
(“ADA”) by being denied a reasonable accommodation due to his disability. Dkt. No. 34-12,
Defendant’s Exh. L.
Over the next several months, Mr. Dugger continued to see Dr. Fults, who continued to
report to SFA that Mr. Dugger’s injury prevented him from returning to work, even with
restrictions. Dkt. No. 34-8, at 10, Defendant’s Exh. H. During that period, Mr. Dugger reported
to Dr. Fults that his pain levels were worsening.
In May 2015, Mr. Dugger saw another physician, Dr. Renato Bosita of the Texas Back
Institute. Dr. Bosita asked that SORM approve a new MRI examination, which was ultimately
done. Based on the results of that MRI, Dr. Bosita diagnosed Mr. Dugger as having “mild disc
desiccation at several levels in the lumbar spine without significant loss of disc height, multilevel
degenerative facet hypertrophy, annular tear along the left posterior lateral L4-5 disc margin with
2-3 mm broad-based disc protrusion. The disc may contact the left nerve root lateral to the
foramen at that level.” Dkt. No. 38-1, at 12, Plaintiff’s Exh. 2. Dr. Bosita recommended that
Mr. Dugger have surgery. SORM, however, ultimately declined to approve the request for
On September 10, 2015, Mr. Dugger filed this action, alleging that he had a disability and
had been discriminated against in violation of various statutes. Dkt. No. 1. Two months later, he
filed an amended complaint in which he narrowed his federal claims to asserting that he had been
discriminated against because of his disability, in violation of section 504 of the Rehabilitation
Act of 1973, 29 U.S.C. § 794. He identified the alleged discriminatory acts as including, but not
limited to: (1) refusing to allow him to return to employment on September 4, 2014; (2)
discriminating against him in the terms, conditions, and privileges of employment; (3) retaliating
against him; and (4) refusing to accommodate his disability. Mr. Dugger also alleged that SFA
had violated section 451.001 of the Texas Labor Code by discriminating against him for filing a
workers’ compensation claim for his injury. Mr. Dugger invoked this Court’s federal question
jurisdiction, 28 U.S.C. § 1331, for his Rehabilitation Act claim, and the Court’s supplemental
jurisdiction, 28 U.S.C. § 1367, for his Texas Labor Code claim. Dkt. No. 4.
On April 15, 2016, after Mr. Dugger had exhausted all of his accumulated leave and had
been on leave without pay for a period of time, SFA terminated his employment. Subsequently,
on August 22, 2016, a benefit review conference was conducted by the Division of Workers’
Compensation of the Texas Department of Insurance. That hearing resulted in a decision that
Mr. Dugger’s compensable injury of August 23, 2014, extended to “an L4-5 disc herniation and
annular tear, lumbar intervertebral disc derangement, as it relates to the L4-5 disc herniation, and
lumbar radiculopathy.” Dkt. No. 38-1, at 17-22, Plaintiff’s Exh. 4. The insurance carrier was
ordered to pay benefits to Mr. Dugger in accordance with that decision. Id.
I. The Motion to Dismiss
SFA first asserts that the Eleventh Amendment to the U.S. Constitution bars both of Mr.
Dugger’s claims—his Rehabilitation Act claim and his Texas Labor Code claim. SFA is correct
as to the Texas Labor Code claim but wrong as to the Rehabilitation Act claim.
A. The Rehabilitation Act Claim
Section 504 of the Rehabilitation Act provides: “No otherwise qualified individual with
a disability in the United States as defined in section 705(20) of this title shall, solely by reason
of her or his disability, be excluded from the participation in, be denied the benefits of, or be
subjected to discrimination under any program or activity receiving Federal financial assistance.”
29 U.S.C. § 794(a). The statute defines a “program or activity” to include “all the operations of
. . . a college, university, or other postsecondary institution, or a public system of higher
education.” Id. § 794(b)(2)(A).
The operations of SFA plainly qualify as a “program or activity” within the meaning of
section 504 of the Rehabilitation Act. It is also undisputed that SFA is a state agency that
receives federal funding.
And Mr. Dugger contends that he is an “otherwise qualified
individual,” i.e., that he is qualified to do his job as an officer in the SFA University Police
Department if he is given an accommodation for his disability—a long-term back injury. He
argues that he has been subjected to discrimination by SFA by being barred from employment
because of his disability. SFA responds that this Court lacks jurisdiction to adjudicate Mr.
Dugger’s Rehabilitation Act claim because States (and state agencies, such as SFA) enjoy
immunity under the Eleventh Amendment from suit in a federal court under section 504 of the
Rehabilitation Act. 1
1. Abrogation of Eleventh Amendment Immunity
The Eleventh Amendment bars an individual from suing a State in federal court unless
the State consents to suit or Congress has clearly and validly abrogated the State’s right not to be
so sued. See College Sav. Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666,
As an agency of the State of Texas, SFA enjoys the same sovereign immunity as the
State itself. See Lowe v. Tex. Tech Univ., 540 S.W.2d 297, 298 (Tex. 1976); Perry v. Tex. A &
I Univ., 737 S.W.2d 106, 108 (Tex. App. 1987) (“Branches of the University of Texas and other
state universities are agencies of the State and thus are entitled to the same governmental
immunity from suit or liability as the State of Texas.”); see also Fite v. Univ. of Tex. M.D.
Anderson Cancer Ctr., Civil Action No. 12-cv-3739, 2013 WL 3338587, at * 2 (S.D. Tex. July 2,
670 (1999). Abrogation of the State’s Eleventh Amendment immunity requires (1) that Congress
has unequivocally expressed its intent to abrogate the State’s immunity from suit on a particular
cause of action in federal court; and (2) that in so doing Congress has acted pursuant a valid
grant of constitutional authority other than its powers enumerated in Article I—in particular,
Congress’s enforcement power under section 5 of the Fourteenth Amendment.
When section 5 of the Fourteenth Amendment serves as the basis for the claim that a
particular statute abrogates the States’ Eleventh Amendment immunity, the rights and remedies
created by the statute in question must be congruent with and proportional to the Fourteenth
Amendment right the statute purports to enforce and the record of Fourteenth Amendment
violations the statute is designed to remedy. See Coleman v. Court of Appeals of Md., 132 S. Ct.
1327, 1334-37 (2012); Bd. of Trustees of the Univ. of Ala. v. Garrett, 531 U.S. 356, 363 (2000);
City of Boerne v. Flores, 521 U.S. 507, 520 (1997) (“There must be a congruence and
proportionality between the injury to be prevented or remedied and the means adopted to that
end. Lacking such a connection, legislation may become substantive in operation and effect.
History and our case law support drawing the distinction, one apparent from the text of the
In 1985, the Supreme Court held that Congress did not abrogate the Eleventh
Amendment protection of the States from suit in federal court under section 504 of the
Rehabilitation Act. See Atascadero State Hosp. v. Scanlon, 473 U.S. 234 (1985) (holding that, in
enacting section 504 of the Rehabilitation Act, Congress did not clearly indicate a purpose to
overturn the States’ Eleventh Amendment immunity from suit in federal court). In response to
the Atascadero decision, Congress enacted the Rehabilitation Act Amendments of 1986, 100
Stat. 1845. Section 1003 of that statute provided as follows:
(1) A State shall not be immune under the Eleventh
Amendment . . . from suit in Federal court for a violation of section
504 of the Rehabilitation Act of 1973, title IX of the Education
Amendments of 1972, the Age Discrimination Act of 1975, title VI
of the Civil Rights Act of 1964, or the provisions of any other
Federal statute prohibiting discrimination by recipients of Federal
(2) In a suit against a State for a violation of a statute
referred to in paragraph (1), remedies (including remedies at law
and in equity) are available for such a violation to the same extent
as such remedies are available for such a violation in the suit
against any public or private entity other than a State.
42 U.S.C. § 2000d-7(a).
As to the question of congressional intent, Congress could not have been clearer. The
1986 amendment made perfectly plain that Congress intended to abrogate the States’ Eleventh
Amendment protection against suit in federal court under the Rehabilitation Act. As to whether
that measure was a valid exercise of Congress’s constitutional power under section 5 of the
Fourteenth Amendment, however, the law has been unsettled.
In Coolbaugh v. Louisiana, 136 F.3d 430 (5th Cir. 1998), the Fifth Circuit ruled that both
title I of the ADA, 42 U.S.C. § 12112 (which covers discrimination in employment) and title II
of the ADA, 42 U.S.C. § 12132 (which was modeled on section 504 of the Rehabilitation Act
and covers discrimination in access to public services, programs, or activities) validly abrogated
state sovereign immunity pursuant to section 5 of the Fourteenth Amendment. Other circuits
agreed. See, e.g., Martin v. Kansas, 190 F.3d 1120 (10th Cir. 1999); Muller v. Costello, 187
F.3d 298 (2d Cir. 1999); Clark v. California, 123 F.3d 1267 (9th Cir. 1997). 2
Most of the cases involving disability discrimination arise under the ADA rather than
the Rehabilitation Act. However, the legal principles applicable to the ADA are generally
imported into cases involving section 504 of the Rehabilitation Act. See Pace v. Bogalusa City
Sch. Bd., 403 F.3d at 287-88 & n.76 and cases cited therein (“[B]ecause the rights and remedies
under both statutes are the same, case law interpreting one statute can be applied to the other.”);
see also Frame v. City of Arlington, 657 F.3d 215, 223 (5th Cir. 2011) (en banc) (“The ADA and
Those decisions, however, were called into question by the Supreme Court’s decision in
Board of Trustees of the University of Alabama v. Garrett, 531 U.S. 356 (2001), which held that
title I of the ADA did not abrogate the States’ immunity under the Eleventh Amendment. The
Garrett Court held that although Congress could use its authority under section 5 of the
Fourteenth Amendment to abrogate States’ Eleventh Amendment immunity, it could do so only
if the statute at issue either remedied or deterred violations of the Fourteenth Amendment; it
could not do so by fashioning new rights and remedies untethered to substantive Fourteenth
Amendment rights. Garrett, 531 U.S. at 365.
Like this case, Garrett involved a claim of employment discrimination based on
disability. The Court began its discussion of the abrogation issue by analyzing whether States
are required by the Fourteenth Amendment to make special accommodations for the disabled.
The Court concluded that the Fourteenth Amendment imposed no such requirement, “so long as
their actions toward such individuals are rational.” 531 U.S. at 367. The Court then explained
that it is not irrational for a State “to hold to job-qualification requirements which do not make
allowance for the disabled.” Id. at 368. Thus, “[i]f special accommodations for the disabled are
to be required, they have to come from positive law and not through the Equal Protection
the Rehabilitation Act generally are interpreted in pari materia.”); Hainze v. Richards, 207 F.3d
795, 799 (5th Cir. 2000); Cummings v. Norton, 393 F.3d 1186, 1190 n.2 (10th Cir. 2005)
(“Because the language of disability used in the ADA mirrors that in the Rehabilitation Act, we
look to cases construing the Rehabilitation Act for guidance when faced with an ADA challenge,
and vice versa.”) (quotations and citations omitted); Myers v. Hose, 50 F.3d 278, 281 (4th Cir.
1995) (“[W]here suit is filed against a federally-funded entity under the Rehabilitation Act or
against a private employer under the ADA, the substantive standards for determining liability are
the same.”). That is particularly true with respect to issues such as the definition of “qualified
individual with a disability,” in that both statutes look to the same provision for the definition of
that term, 42 U.S.C. § 12102 (incorporated into section 504 of the Rehabilitation Act by 29
U.S.C. § 705(20)(B)). See Kemp v. Holder, 610 F.3d 231, 234-35 (5th Cir. 2010).
accommodations for the disabled, the Court went on to “examine whether Congress identified a
history and pattern of unconstitutional employment discrimination by the States against the
disabled.” 531 U.S. at 368. Noting that “Congress’s § 5 authority is appropriately exercised
only in response to state transgressions,” the Court found that the legislative record of the ADA
“simply fails to show that Congress did in fact identify a pattern of irrational state discrimination
in employment against the disabled.” Id.
Even if there were some evidence of a pattern of unconstitutional discrimination by the
States, the Garrett Court noted, “the rights and remedies created by the ADA against the States
would raise the same sort of concerns as to congruence and proportionality as were found in City
of Boerne.” 531 U.S. at 372. The accommodation duty in the ADA “far exceeds what is
constitutionally required in that it makes unlawful a range of alternative responses that would be
reasonable but would fall short of imposing an ‘undue burden’ upon the employer.” Id. Because
the Court found that Congress had not identified a history and pattern of unconstitutional
employment discrimination by the States when it enacted title I of the ADA, the Court held that
the remedy imposed by Congress for employment discrimination based on disability was not
“congruent and proportional” to a targeted constitutional violation, and that the statute therefore
could not constitutionally abrogate the States’ Eleventh Amendment immunity. Id. at 374.
Following Garrett, the Fifth Circuit held that Coolbaugh was no longer good law, and it
ruled that title II of the ADA and section 504 of the Rehabilitation Act did not abrogate the
States’ Eleventh Amendment immunity. Reickenbacker v. Foster, 274 F.3d 974, 981-83 (5th
Cir. 2001). The court in Reickenbacker found that the legislative history of the ADA did not
establish that the States had engaged in unconstitutional discrimination against the disabled, id.
at 982, and it noted that the statute imposed “an affirmative accommodation obligation on the
part of public entities that far exceeds the constitutional boundaries,” id. at 983. For that reason,
the court concluded that title II of the ADA and section 504 of the Rehabilitation Act are not
“proportional and congruent to the legislative findings of unconstitutional discrimination against
the disabled by the States,” and that those statutes therefore did not abrogate the States’ Eleventh
Amendment immunity. Id. Other courts interpreted the Supreme Court’s decisions in the same
manner. See, e.g., Alsbrook v. City of Maumelle, 184 F.3d 999, 1004-10 (8th Cir. 1999) (en
banc); Thompson v. Colorado, 278 F.3d 1020, 1027-34 (10th Cir. 2001), overruled in Guttman v.
Khalsa, 446 F.3d 1027 (10th Cir. 2006); Brown v. N.C. Div. of Motor Vehicles, 166 F.3d 698,
706 (4th Cir. 1999).
After the Fifth Circuit’s decision in Reickenbacker, the Supreme Court decided two more
cases that seemed to point to a more case-specific resolution of the abrogation issue.
Tennessee v. Lane, 541 U.S. 509 (2004), the Court held that title II of the ADA abrogates States’
Eleventh Amendment immunity, at least for cases involving restrictions on the right of access to
courts. And in United States v. Georgia, 546 U.S. 151 (2006), the Court held that title II of the
ADA abrogates States’ Eleventh Amendment immunity at least for conduct that actually violates
the Fourteenth Amendment.
In the wake of those decisions, courts of appeals that have addressed the abrogation issue
have attempted to determine whether the conduct at issue in the case violated the Fourteenth
Amendment, and if not whether Congress’s purported abrogation of sovereign immunity as to
that particular class of conduct is nonetheless valid. See Mingus v. Butler, 591 F.3d 474, 481-83
(6th Cir. 2010); Brewer v. Wis. Bd. of Bar Examiners, 270 F. App’x 418, 421 (7th Cir. 2008);
Klinger v. Director, Dep’t of Revenue, State of Mo., 455 F.3d 888 (8th Cir. 2006); Guttman v.
Khalsa, 446 F.3d 1027, 1034-36 (10th Cir. 2006). In particular, several circuits, relying on
Tennessee v. Lane, have held that title II of the ADA validly abrogated the States’ Eleventh
Amendment immunity in actions against federal grantees with respect to access to public
education. See Bowers v. Nat’l Collegiate Athletic Ass’n, 475 F.3d 524, 550-56 (3d Cir. 2007);
Toledo v. Sanchez, 454 F.3d 24, 40 (1st Cir. 2006); Constantine v. Rectors & Visitors of George
Mason Univ., 411 F.3d 474, 488-89 (4th Cir. 2005); Ass’n for Disabled Americans, Inc. v. Fla.
Int’l Univ., 405 F.3d 954, 959 (11th Cir. 2005).
While some courts have departed from decisions reached prior to Lane and United States
v. Georgia, the Fifth Circuit has not reconsidered its decision in Reickenbacker. See BennettNelson v. La. Bd. of Regents, 431 F.3d 448, 454 (5th Cir. 2005) (“We have yet to decide
whether the principle of Lane extends to cases involving other rights or, alternatively, whether
our holding in Reickenbacker continues to control in such cases.”). In the absence of a squarely
contrary ruling by the Supreme Court, the Reickenbacker decision governs this Court’s
consideration of the abrogation issue in this case. The Court is therefore bound by the Fifth
Circuit’s holding that section 504 of the Rehabilitation Act does not abrogate the State’s (or
SFA’s) immunity under the Eleventh Amendment.
Even if this Court were free to ignore the Fifth Circuit’s decision in Reickenbacker, the
Court would still find this case closer to the Supreme Court’s decision in Garrett than to its
decisions in Lane or United States v. Georgia. Lane involved a specific right that is entitled to
constitutional protection—the right of access to courts. The Court pointedly limited the scope of
its decision in that case to that fundamental right. 541 U.S. at 532, 533 n.20. And United States
v. Georgia involved allegations of specific violations of the Fourteenth Amendment.
contrast, this case, like Garrett, involves a claim of disability discrimination in employment, for
which the Fourteenth Amendment itself provides no protection unless the State’s conduct is
lacking in a rational basis. See Garrett, 531 U.S. at 366-67.
Dugger’s claim of disability discrimination in employment is parallel to the claim at issue
in Garrett. In fact, the Rehabilitation Act specifically provides that the “standards used to
determine whether [section 504 of the Rehabilitation Act] has been violated in a complaint
alleging employment discrimination under [section 504] shall be the standards applied under title
I of the Americans with Disabilities Act of 1990.” 29 U.S.C. § 794(d). For the same reasons
that the Court in Garrett found that title I of the ADA did not abrogate the State’s Eleventh
Amendment immunity in that case, this Court holds that section 504 of the Rehabilitation Act
does not abrogate SFA’s Eleventh Amendment immunity against being sued in federal court on a
claim of disability discrimination in employment. 3
In Hale v. King, 642 F.3d 492, 498 (5th Cir. 2011), the Fifth Circuit noted (without
deciding) the question whether the Supreme Court’s decision in United States v. Georgia
requires a court to determine if a claimant’s allegations actually state a claim under title II of the
ADA before addressing whether title II has abrogated the State’s Eleventh Amendment
immunity. In several non-precedential opinions, the Fifth Circuit has employed that approach,
requiring district courts to decide (1) whether the alleged conduct violated the ADA; (2) to what
extent that conduct also violated the Fourteenth Amendment; and (3) if the conduct violated the
ADA but not the Fourteenth Amendment, whether Congress’s abrogation of the State’s Eleventh
Amendment immunity is valid for that alleged conduct. See Duncan v. Univ. of Tex. Health Sci.
Ctr. at Houston, 469 F. App’x 364, 367 (5th Cir. 2012); Wells v. Thaler, 460 F. App’x 303, 311
(5th Cir. 2012); Brockman v. Tex. Dep’t of Criminal Justice, 397 F. App’x 18, 23 (2010). Even
assuming that approach should be applied in the context of employment discrimination, the result
here would be the same. That is true for two reasons. First, Garrett makes clear that
employment discrimination of the sort alleged in this case does not violate the Fourteenth
Amendment. Second, in addressing SFA’s summary judgment motion in Part II of this opinion,
the Court concludes that Mr. Dugger’s complaint has adduced sufficient facts in support of his
Rehabilitation Act claim to withstand summary judgment. That requires the Court to decide
whether Congress’s effort in section 504 to abrogate the States’ Eleventh Amendment immunity
in employment discrimination cases was valid in light of the principles of congruence and
proportionality. For the reasons discussed by the Supreme Court in Garrett, this Court holds that
it was not.
In addition to alleging that he was discriminated against in violation of the Rehabilitation
Act when SFA refused to allow him to return to work as of September 5, 2014, with an
accommodation for his disability, Mr. Dugger alleges in his complaint that SFA discriminated
against him “[b]y retaliating against Dugger in violation of the [Rehabilitation] Act.” Plaintiff’s
First Amended Complaint, Dkt. No. 9, at 3.
Section 504 of the Rehabilitation Act does not expressly refer to retaliation in the context
of employment discrimination, but the courts have held that section 504 encompasses a
prohibition against retaliation. In so doing, the courts have looked to 29 U.S.C. § 794(d), which
provides that the standards for finding employment discrimination under section 504 are the
same as those under title I of the ADA, which contains a specific prohibition against retaliation.
See 42 U.S.C. § 12203(a). See Cohen v. Univ. of Tex. Health Sci. Ctr., 447 F. App’x 273, 277
(5th Cir. 2014); Shannon v. Henderson, 275 F.3d 42, No. 01-10346, 2001 WL 1223633, at *3
(5th Cir. 2001); Calderon v. Potter, 113 F. App’x 586, 592 & n.1 (5th Cir. 2004); S.B. ex. rel.
A.L. v. Bd. of Educ. of Harford Cty., 819 F.3d 69, 78 n.6 (4th Cir. 2016); Reinhardt v.
Albuquerque Pub. Schs. Bd. of Educ., 595 F.3d 1126, 1133 (10th Cir. 2010); Mershon v. St.
Louis Univ., 442 F.3d 1069, 1077 n.3 (8th Cir. 2005).
In addition, courts have looked to the implementing regulations promulgated under
section 504 in holding that the Rehabilitation Act includes a remedy against retaliation. The
pertinent Department of Justice regulation states that a recipient of federal financial assistance
may not “intimidate or retaliate against any individual . . . for the purpose of interfering with any
right secured” by section 504. 28 C.F.R. § 42.503(b)(1)(vii); see D.B. ex rel. Elizabeth B. v.
Esposito, 675 F.3d 26, 40 (1st Cir. 2012); Child v. San Bernardino Unified Sch. Dist., 35 F.
App’x 521, 523 (9th Cir. 2002); Singletary ex. rel. N.M.M. v. Cumberland Cty. Schs., No. 5:12-
cv-744, 2013 WL 4674874, at *9 (E.D.N.C. Aug. 30, 2013); Wiles v. Dep’t of Educ., 555 F.
Supp. 2d 1143, 1153 (D. Haw. 2008); Smith ex rel. C.R.S. v. Tangipahoa Parish Sch. Bd., Civil
Action No. 05-6648, 2006 WL 3395938, at *13 (E.D. La. Nov. 22, 2006); M.T.V. v. Perdue, No.
Civ. A. 1:03-cv-468, 2004 WL 3826047, at *7 (N.D. Ga. Feb. 3, 2004).
Under both the Rehabilitation Act and the ADA, the courts have held that in order to
establish unlawful retaliation, a plaintiff must show that (1) he engaged in a statutorily protected
activity; (2) the employer took an adverse action against him; and (3) there was a causal
connection between the adverse action and the protected activity. Jenkins v. Cleco Power, LLC,
487 F.3d 309, 317 n.3 (5th Cir. 2007); Sherrod v. Am. Airlines, Inc., 132 F.3d 1112, 1122 n.8
(5th Cir. 1998); Palmquist v. Shinseki, 689 F.3d 66, 70 (1st Cir. 2012); Jarvis v. Potter, 500 F.3d
1113, 1125 (10th Cir. 2007); Hooven-Lewis v. Caldera, 249 F.3d 259, 272 (4th Cir. 2001); Amir
v. St. Louis Univ., 184 F.3d 1017, 1025 (8th Cir. 1999); Sands v. Runyon, 28 F.3d 1323, 1331
(2d Cir. 1994).
Mr. Dugger’s complaint does not specify what acts triggered the alleged retaliatory
conduct, nor is it clear from the factual allegations of the complaint what those acts were. 4 There
are two likely candidates for the allegedly triggering conduct: Mr. Dugger’s filing of a workers’
compensation claim for his injury, and Mr. Dugger’s request for an accommodation, in the form
of a light-duty assignment, for his disability. Both candidates have fatal defects.
Mr. Dugger may be intending to claim that the triggering act was his request for workers’
compensation benefits for his injury, since that is the basis for his claim of a violation of section
451.001 of the Texas Labor Code. If that is so, however, his claim fails because an allegation of
The complaint is entirely conclusory in this regard. For that reason, the retaliation
allegation may be insufficient to satisfy the requirements of Fed. R. Civ. P. 8. The defendant did
not seek dismissal on that ground, however, so the Court will not address that issue.
retaliation for filing a workers’ compensation claim does not fall within the scope of the
disability discrimination laws, including the Rehabilitation Act. See Reynolds v. Am. Nat’l Red
Cross, 701 F.3d 143, 154 (4th Cir. 2012) (“Filing a workers’ compensation claim is not
something that is covered by the ADA.”); Lanza v. Postmaster Gen. of the U.S., 570 F. App’x
236, 241 (3d Cir. 2014) (“filing a claim for workers’ compensation does not constitute protected
activity under . . . the Rehabilitation Act”); Boyd v. Broome Community College, No. 3:14-cv397, 2015 WL 6962498, at *11 (N.D.N.Y. Nov. 10, 2015) (same); Kendall v. Postmaster Gen. of
the U.S., 543 F. App’x 141, 145 (3d Cir. 2013) (same); see also Bennett v. Project Renewal, Inc.,
627 F. App’x 29, 31 (2d Cir. 2015) (same for the ADA and title VII of the Civil Rights Act of
1964); Davis v. Team Elec. Co., 520 F.3d 1080, 1093 n.8 (9th Cir. 2008) (same for title VII);
Jimenez v. Potter, 211 F. App’x 289, 290 (5th Cir. 2006) (same for title VII); Leavitt v. S W & B
Constr. Co., 766 F. Supp. 2d 263, 286 (D. Me. 2011) (same for the ADA and title VII); Edwards
v. Creoks Mental Health Servs., Inc., 505 F. Supp. 2d 1080, 1093 (N.D. Okla. 2007) (same for
the ADA and Title VII).
If Mr. Dugger’s retaliation claim is based on his request for an accommodation, then that
claim is barred by the Eleventh Amendment for the same reasons that bar his claim that he was
discriminated against by being denied the accommodation he requested. Courts have uniformly
held that retaliation claims premised on employment discrimination under title I of the ADA are
subject to the Eleventh Amendment. See Levy v. Kan. Dep’t of Soc. & Rehab. Servs., 789 F.3d
1164, 1169 (10th Cir. 2015); Demshki v. Monteith, 255 F.3d 986, 988-89 (9th Cir. 2001); Cook
v. Springfield Hosp. Ctr., Civil Action No. ELH-16-2024, 2016 WL 6124676, at *7 (D. Md. Oct.
19, 2016); Emery v. Mich. Dep’t of Civil Rights, Case No. 15-11467, 2016 WL 1090429, at *2
(E.D. Mich. Mar. 21, 2016); Watson v. Ohio Dep’t of Rehab. & Correction, 167 F. Supp. 3d 912,
921-22 (S.D. Ohio 2016); Lucas v. State of Ala. Dep’t of Pub. Health, Civil Action No. 3:15-cv941, 2016 WL 225547, at *3-4 (M.D. Ala. Jan. 7, 2016); Rich v. New Jersey, Civil Action No.
14-2075, 2015 WL 2226029, at *8 (D.N.J. May 12, 2015); Dottin v. Tex. Dep’t of Criminal
Justice, No. 1:13-cv-710, 2014 WL 11498078, at *10 (E.D. Tex. Nov. 25, 2014) (citing
numerous cases); Quadir v. N.Y. State Dep’t of Labor, 39 F. Supp. 3d 528, 536-37 (S.D.N.Y.
2014) (citing numerous cases); Umholtz v. Kan., Dep’t of Soc. & Rehab. Servs., 926 F. Supp. 2d
1222, 1227-28 (D. Kan. 2013) (citing numerous cases); Padilla v. N.Y. State Dep’t of Labor, No.
99 Civ. 5291, 2010 WL 3835182, at *4-5 (S.D.N.Y. Sept. 13, 2010); Chiesa v. N.Y. State Dep’t
of Labor, 638 F. Supp. 2d 316, 323 (N.D.N.Y. 2009).
Based on Tennessee v. Lane and United States v. Georgia, some courts have held that no
such absolute bar applies to retaliation claims premised on violations of title II of the ADA. See
Blysma v. Haw. Pub. Hous. Auth., 951 F. Supp. 2d 1116, 1120-21 (D. Haw. 2013); DeCotiis v.
Whittemore, 842 F. Supp. 2d 354, 370-71 (D. Me. 2012); McCollum v. Owensboro Cmty. &
Tech. Coll., No. 4:09-121, 2010 WL 5393852, at *3 (W.D. Ky. Dec. 22, 2010); Demby v. Md.
Dep’t of Health & Mental Hygiene, No. 06-1816, 2009 WL 415265, at *1 (D. Md. Feb. 13,
2009); Sarkissian v. W. Va. Univ. Bd. of Governors, No. 1:05-cv-144, 2007 WL 1308978, at *8
(N.D.W. Va. May 3, 2007). Those cases, however, do not extend to claims of employment
discrimination, which arise under title I of the ADA.
Because this case involves a claim of employment discrimination, the title I cases are the
more analogous cases. As noted, the same standards apply to employment discrimination cases
under the Rehabilitation Act as to cases arising under title I of the ADA. See 29 U.S.C. § 794(d)
and cases cited at note 2, supra. Based on the consistent line of cases finding that retaliation
claims predicated on title I of the ADA are subject to the Eleventh Amendment, the Court holds
that section 504 of the Rehabilitation Act does not abrogate SFA’s Eleventh Amendment
immunity against being sued in federal court on a claim of disability discrimination in
employment even if Mr. Dugger’s theory is that he was retaliated against for having requested an
2. Waiver of Eleventh Amendment Immunity
Even in the absence of valid congressional abrogation of a State’s Eleventh Amendment
immunity from suit in federal court, the State may waive its Eleventh Amendment rights with
respect to particular causes of action. In order to find such a waiver, however, the State’s
consent to suit must be “unequivocally expressed.” Sossamon v. Texas, 131 S. Ct. 1651, 1658
(2011); College Sav. Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 680
(1999). When such a waiver is found, suits against the States in federal court on that cause of
action are permitted.
The Supreme Court in Atascadero held that the State of California had not validly waived
its Eleventh Amendment right not to be sued in federal court on an action arising under section
504 of the Rehabilitation Act. However, the enactment of the Rehabilitation Act Amendments of
1986, which has been characterized as “an unambiguous waiver of the States’ Eleventh
Amendment immunity,” Lane v. Peña, 518 U.S.187, 200 (1996), made clear that a state activity
that accepted federal funding would be deemed to have consented to suit on the identified causes
of action in federal court.
In light of the 1986 statute, the Fifth Circuit has held that Congress permissibly
conditioned a state agency’s receipt of funds on an unambiguous waiver of the Eleventh
Amendment immunity, and that by accepting such funding, the State has consented to
Rehabilitation Act claims being brought against the agency in federal court.
See Pace v.
Bogalusa City Sch. Bd., 403 F.3d 272, 277-87 (5th Cir. 2005) (en banc); Miller v. Tex. Tech
Univ. Health Sci. Ctr., 421 F.3d 342, 347-52 (5th Cir. 2005) (en banc); Bennett-Nelson v. La.
Bd. of Regents, 431 F.3d 448, 453-54 (5th Cir. 2005); Thomas v. Univ. of Houston, 155 F.
App’x 115 (5th Cir. 2005); see also Pederson v. La. State Univ., 213 F.3d 858, 875-76 (5th Cir.
2000) (same analysis as applied to title IX of the Education Amendments of 1972). 5 It is thus
clear that the State of Texas has waived the Eleventh Amendment immunity that otherwise
would have been available to SFA as an agency of the State of Texas with respect to actions
brought under section 504 of the Rehabilitation Act.
In addition to creating the predicate for a waiver of the State’s Eleventh Amendment
immunity, the 1986 Rehabilitation Act Amendments made clear that all remedies that would be
available to a private or other public entity are available in actions against the States. In
accordance with that statutory directive, the courts have held that private parties can obtain
compensatory damages against private and public entities (other than the federal government) in
actions brought under section 504 of the Rehabilitation Act. However, the courts have also held
that monetary relief against public entities is available only for intentional discrimination. D.A.
Other circuits have ruled similarly on the waiver issue. See, e.g., Constantine v.
Rectors & Visitors of George Mason Univ., 411 F.3d 474, 490-96 (4th Cir. 2005); Barbour v.
Wash. Metro. Area Transit Auth., 374 F.3d 1161, 1163-68 (D.C. Cir. 2004); Nieves-Marquez v.
Puerto Rico, 353 F.3d 108, 127-30 (1st Cir. 2003); Garrett v. Univ. of Ala. at Birmingham Bd. of
Trustees, 344 F.3d 1288, 1290-93 (11th Cir. 2003); A.W. v. Jersey City Pub. Schs., 341 F.3d
234, 239-44 (3d Cir. 2003); Miranda B. v. Kitzhaber, 328 F.3d 1181, 1185-86 (9th Cir. 2003);
Koslow v. Commonwealth of Pa., 302 F.3d 161, 169-72 (3d Cir. 2002); Robinson v. Kansas, 295
F.3d 1183, 1189-90 (10th Cir. 2002); Douglas v. Cal. Dep’t of Youth Auth., 271 F.3d 812, 82021 (9th Cir. 2001); Nihiser v. Ohio Envtl. Prot. Agency, 269 F.3d 626, 628 (6th Cir. 2001); Jim
C. v. United States, 235 F.3d 1079, 1081-82 (8th Cir. 2000) (en banc); Stanley v. Litscher, 213
F.3d 340, 344 (7th Cir. 2000); but see Garcia v. S.U.N.Y. Health Sci. Ctr., 280 F.3d 98, 113-16
(2d Cir. 2001) (holding that New York State did not waive its sovereign immunity against suit
under section 504 of the Rehabilitation Act because the State was not shown to have made an
“intentional relinquishment or abandonment of a known right or privilege” when it accepted
federal funds for the State University of New York).
ex rel. Latasha A. v. Houston Indep. Sch. Dist., 629 F.3d 450, 454 (5th Cir. 2010); Delano-Pyle
v. Victoria Cty. Tex., 302 F.3d 567, 575 (5th Cir. 2002); Carter v. Orleans Parish Pub. Schs., 725
F.3d 261, 264 (5th Cir. 1984). And courts have held that punitive damages are not available
against federal grantees sued under section 504. See Barnes v. Gorman, 536 U.S. 181, 189
(2001); Estate of Lance ex rel. Lance v. Lewisville Indep. Sch. Dist., No. 4:11-cv-32, 2011 WL
4100960, at *9 (E.D. Tex. Aug. 23, 2011).
The foregoing analysis makes clear that, in light of the waiver rationale, there is no force
to SFA’s argument that the Eleventh Amendment deprives this Court of subject matter
jurisdiction over Mr. Dugger’s Rehabilitation Act claim.
3. Exhaustion of Administrative Remedies
SFA next argues that Mr. Dugger failed to exhaust his administrative remedies and that
the complaint should be dismissed for that reason as well. It is not clear from SFA’s motion
whether SFA is arguing that the exhaustion requirement applies to the Rehabilitation Act claim
or only to the state law claim raised by Mr. Dugger. In any event, it is clear both in the
Fifth Circuit and elsewhere that a plaintiff bringing a Rehabilitation Act claim against any entity
other than a federal agency is not required to exhaust administrative remedies. See Taylor v.
City of Shreveport, 798 F.3d 276, 283-84 (5th Cir. 2015) (“Although a plaintiff must exhaust his
or her administrative remedies before pursuing a Rehabilitation Act claim against a federal
agency, it need not do so before suing a federal grantee.”). See also Prewitt v. U.S. Postal Serv.,
662 F.2d 311, 314 (5th Cir. 1981); Camenisch v. Univ. of Tex., 616 F.2d 127, 135 (5th Cir.
1980), vacated on other grounds, 451 U.S. 390 (1981); Freed v. Consolidated Rail Corp., 201
F.3d 188, 194 (3d Cir. 2000); Brennan v. King, 139 F.3d 258, 268 n.12 (1st Cir. 1998); Tuck v.
HCA Health Servs. of Tenn., Inc., 7 F.3d 465, 470-71 (6th Cir. 1993); Smith v. Barton, 914 F.2d
1330 (9th Cir. 1990); N.M. Ass’n of Retarded Citizens v. State of N.M., 678 F.2d 847, 850 (10th
Cir. 1982); Kling v. Los Angeles Cty., 633 F.2d 876, 879 (9th Cir. 1980); Minter v. Dist. of
Columbia, 62 F. Supp. 2d 149 (D.D.C. 2014). The exhaustion of remedies argument therefore
has no traction with regard to the Rehabilitation Act claim. And because SFA’s exhaustion
argument is meritless, so is SFA’s statute of limitations argument, which is based on the
For these reasons, the Court DENIES the defendant’s motion to dismiss Mr. Dugger’s
Rehabilitation Act claim.
B. The Texas Labor Code Claim
SFA argues that the Eleventh Amendment bars Mr. Dugger from prosecuting his Texas
Labor Code claim in federal court. As noted, it is well established that, absent an express waiver
or an abrogation of the state’s sovereign immunity by Congress, a State may not be sued in a
federal court. The State of Texas has not provided a clear and unambiguous waiver of its
immunity from suit in a federal court with regard to retaliation claims under section 451.001 of
the Texas Labor Code, 6 nor has Congress abrogated the State’s right under the Eleventh
The Texas Supreme Court has held that the State waived its sovereign immunity for
retaliation claims brought in state court under section 451.001 of the Texas Labor Code.
Kerrville State Hosp. v. Fernandez, 28 S.W.3d 1 (Tex. 2000). The court reasoned that a
particular statutory provision designating the state agency as the proper defendant for claims
under section 45.001 would not “make any sense if immunity is not waived.” Id. at 6. The
court’s reasoning, however, does not provide a basis to conclude that the State waived its
immunity in federal court, as the provision “can be interpreted in a manner that does not require
a finding of waiver” in federal court—i.e., by interpreting the provision simply to identify the
proper defendant for suit in a state court. Id.; see also Sossamon v. Texas, 131 S. Ct. at 1658 (“a
State’s consent to suit in its own courts is not a waiver of its immunity from suit in a federal
court”); Perez v. Region 20 Educ. Serv. Ctr., 307 F.3d 318, 332 (5th Cir. 2002) (noting that
although a “section of the Texas Labor Code,” Tex. Lab. Code Ann. §§ 21.002(8)(D),
21.002(14)(A), “does waive sovereign immunity for claims brought under the [Texas
Commission on Human Rights Act, Tex. Lab. Code Ann. §§ 21.001-.556,] in state court[,] . . .
Amendment not to be so sued. For that reason, the action by Mr. Dugger, brought in a federal
court, must be dismissed. See Perez v. Region 20 Educ. Serv. Ctr., 307 F.3d 318, 332 (5th Cir.
2002); Martinez v. Tex. Dep’t of Criminal Justice, 300 F.3d 567, 575-76 (5th Cir. 2002) (“Even
when a State consents to suit in its own courts . . . it may retain Eleventh Amendment immunity
from suit in federal court.”) (citing Welch v. Dep’t of Highways & Pub. Transp., 483 U.S. 468,
473-74 (1987), and other authorities); Dottin v. Tex. Dep’t of Criminal Justice, No. 1:13-cv-710,
2014 WL 11498078, at *5 (E.D. Tex. Nov. 25, 2014).
For these reasons, the Court GRANTS the defendant’s motion to dismiss Mr. Dugger’s
Texas Labor Code claim.
II. The Motion for Summary Judgment
SFA also moves for summary judgment on both claims. Because the Court has dismissed
the Texas Labor Code claim, the Court will address only the portion of the summary judgment
motion that is directed to Mr. Dugger’s Rehabilitation Act claim.
In order to prove a violation of the Rehabilitation Act in the employment context, a
plaintiff must show (1) that he is “an individual with a disability”; (2) that he is “otherwise
qualified” for the position in question; (3) that he worked for a “program or activity receiving
Federal financial assistance,” and (4) that he was discriminated against “solely by reason of her
or his disability.” Washburn v. Harvey, 504 F.3d 505, 508 (5th Cir. 2007); see also Hale v.
King, 642 F.3d 492, 499 (5th Cir. 2011). In order to obtain compensatory damages, the plaintiff
is required to prove intentional discrimination. Delano-Pyle v. Victoria Cty., Tex., 302 F.3d 567,
574 (5th Cir. 2002). Discrimination by a public entity includes failing to make “reasonable
the cited section does not expressly waive sovereign immunity in federal court.”) (internal
accommodations” to the disabled individual so that he can participate in the programs provided
by the public entity. See 28 C.F.R. § 35.130(b)(7).
Where, as here, a claim of disability discrimination in employment is based at least in
part on a theory of failure to accommodate the plaintiff’s disability, the plaintiff must show by a
preponderance of the evidence (1) that he had a disability; (2) that the employer had notice of his
disability; (3) that he could perform the essential functions of the position with no more than a
reasonable accommodation by the employer; and (4) that the employer denied his request for a
reasonable accommodation. Washburn, 504 F.3d at 509; Feist v. La., Dep’t of Justice, Office of
the Atty. Gen., 730 F.3d 450, 452 (5th Cir. 2013); Griffin v. United Parcel Serv., Inc., 661 F.3d
216, 222 (5th Cir. 2011); Jenkins v. Cleco Power, LLC, 487 F.3d 309, 315-16 (5th Cir. 2007);
Ward v. McDonald, 762 F.3d 24, 31 (D.C. Cir. 2014). 7
An employer’s obligation to
accommodate is not triggered until an employee requests an accommodation. Dillard v. City of
Austin, Tex., 837 F.3d 557, 562 (5th Cir. 2016); EEOC v. Chevron Phillips Chem. Co., LP, 570
F.3d 606, 614 (5th Cir. 2009). The plaintiff bears the burden of showing that he requested a
reasonable accommodation. Loulseged v. Akzo Nobel Inc., 178 F.3d 731, 736 n.4 (5th Cir.
1999); Burch v. Coca-Cola Co., 119 F.3d 305, 320 (5th Cir. 1997); Taylor v. Principal Fin. Grp.,
Inc., 93 F.3d 155, 164-65 (5th Cir. 1996).
The Fifth Circuit has sometimes articulated those elements differently, but the court has
been consistent with respect to the substance of the elements. Thus, for example, the court has at
times referred to the requirement to show that the employee is a “qualified individual with a
disability,” see Feist, 730 F.3d at 452, while at other times it has stated that the employee must
show (1) that he has a disability and (2) that with or without reasonable accommodation he can
perform the essential functions of the position in question, see EEOC v. Chevron Phillips Chem.
Co., LP, 570 F.3d 606, 614 (5th Cir. 2009). There is no substantive difference between the two
SFA’s argument directed to the Rehabilitation Act claim is that (1) Mr. Dugger did not
have a disability; (2) Mr. Dugger never notified SFA that he had a disability; and (3) Mr. Dugger
never requested an accommodation for his disability.
A. Mr. Dugger’s Disability and Notification to SFA
SFA argues, Dkt. No. 34, at 12, that Mr. Dugger never notified SFA that he had a
disability and that none of his medical providers ever diagnosed him with a disability. For those
reasons, according to SFA, his claim that he has a disability must fail.
1. No Diagnosis of Disability
For purposes of the Rehabilitation Act, a disability is defined, in pertinent part, as “a
physical or mental impairment that substantially limits one or more major life activities of such
individual.” See 29 U.S.C. § 705(20)(B) (incorporating, for purposes of section 504 of the
Rehabilitation Act, the definition of “disability” that applies to the ADA, 42 U.S.C. § 12102).
Whether a person’s physical or mental condition substantially limits one or more major
life activities is a question of fact for the jury. See, e.g., Barber v. Nabors Drilling U.S.A., Inc.,
130 F.3d 702, 707 (5th Cir. 1997); Dutcher v. Ingalls Shipbldg., 53 F.3d 723, 727 (5th Cir.
1995); Ekstrand v. Sch. Dist. of Somerset, 583 F.3d 972, 975 (7th Cir. 2009); Doebele v.
Sprint/United Mgmt. Co., 342 F.3d 1117, 1129 (10th Cir. 2003); Brady v. Wal-Mart Stores, Inc.,
531 F.3d 127, 134 (2d Cir. 2008); Gagliardo v. Connaught Labs., Inc., 311 F.3d 565, 569 (3d
Cir. 2002); Webner v. Titan Distribution, Inc., 267 F.3d 828, 834 (8th Cir. 2001); Quint v. A.E.
Staley Mfg. Co., 172 F.3d 1, 13 (1st Cir. 1999).
Significantly, SFA does not argue that the evidence is insufficient to support a finding
that Mr. Dugger’s back condition limits him in one or more major life activities. Instead, SFA
argues that “none of Dugger’s medical providers ever diagnosed him with a disability,” and that
for that reason he has failed to prove that he has a disability. Dkt. No. 34, at 12. That argument
is unpersuasive. Physicians make medical diagnoses; in so doing, they are not called upon to
make judgments as to whether the patient’s impairment “limits one or more major life activities,”
and thus constitutes a disability. It is therefore not surprising—and not fatal to Mr. Dugger’s
claim—that none of his physicians diagnosed him with a “disability.” The issue before the Court
is whether Mr. Dugger’s condition affects him in a manner that satisfies the statutory definition
of a disability, and on that issue the Court concludes that the evidence proffered on summary
judgment is sufficient to create a triable question of fact.
In particular, the evidence shows that Mr. Dugger suffers from back pain that limits the
scope of his activities in certain respects, such as lifting heavy loads, bending, and walking for
extended periods of time. His physicians diagnosed him with various conditions associated with
a herniated lumbar disc. Between September and December of 2014, Mr. Dugger’s physicians
directed that, in light of his condition, he could return to work, but only with restrictions on his
A case fairly close on its facts to this one is Webner v. Titan Distribution, Inc., 267 F.3d
828 (8th Cir. 2001). In that case, the plaintiff injured his back at work and was limited in the
extent to which he could walk, stand for long periods of time, lift weights, twist, and bend at the
waist. Applying the definition of “disability” in section 12102, the court ruled that “sitting,
standing, lifting, and reaching” are major life activities. The court further held that to be
substantially limited in those major life activities, within the meaning of section 12102, a person
“must be unable to perform a major life activity that the average person in the general population
can perform, or be significantly limited in the condition, manner, or duration under which the
individual can perform that activity as compared to an average person in the general population.”
267 F.3d at 834.
The Webner court concluded that Mr. Webner had presented evidence that could have
allowed a rational jury to determine that his back injury “substantially limited one or more of his
major life activities,” id., and that the question whether his condition constituted a disability
under the ADA was properly left to the jury. The same is true here: Mr. Dugger has presented
enough evidence that his back injury has resulted in a substantial limitation of one or more major
life activities to raise a disputed issue of material fact and avoid summary judgment on that issue.
2. Notification to SFA of Mr. Dugger’s Condition
There is also ample evidence to support Mr. Dugger’s assertion that he notified SFA of
his condition both initially and throughout the period in which he was seeking a light-duty
assignment. In his declaration, Mr. Dugger represents that he provided SFA representatives with
updates on his condition every two weeks. Dkt. No. 38-1, at 6, Plaintiff’s Exh. 1. The record
also contains numerous reports submitted by Mr. Dugger’s physicians to SFA reporting on his
condition. The question whether Mr. Dugger adequately notified SFA that he had a disability is
a fact question for a jury, and the evidence on that issue is sufficient to allow a reasonable jury to
find that he did. Accordingly, summary judgment is not appropriate on that issue.
B. Mr. Dugger’s Request for an Accommodation
SFA next contends that Mr. Dugger never requested that SFA provide an accommodation
for his disability, and that the Court should grant summary judgment on that ground as well.
Again, the evidence is sufficient to create a factual issue as to whether Mr. Dugger requested an
accommodation. In his declaration, Mr. Dugger states that he requested a light-duty assignment.
Dkt. No. 38-1, at 6, Plaintiff’s Exh. 1.
And in fact Mr. Dugger was given a light-duty
assignment between September 2 and September 4, 2014, which strongly suggests that he
wanted such an accommodation. Moreover, an email chain among SFA officials on September 4
and September 5 indicates that the responsible officials were aware that Mr. Dugger was
unhappy when he was informed at the end of the day on September 4 that his light-duty
assignment would be ending and that he should not come to work the next day. Dkt. No. 38-1, at
52-55, Plaintiff’s Exh. 9. Finally, the physicians’ reports from August through early December
of 2014 all stated that Mr. Dugger was cleared to return to work with restrictions, but after the
expiration of his light-duty assignment on September 4, 2014, SFA took the position that he
would not be permitted to return to work until he was cleared for full service.
That evidence is sufficient to create a factual issue as to whether Mr. Dugger requested an
accommodation from SFA in the form of a light-duty assignment, at least until December 2014,
when Dr. Fults reported that Mr. Dugger would not be cleared to return to work even with
restrictions. Summary judgment therefore is not appropriate on that issue.
In its reply brief, Dkt. No. 39, at 1-2, SFA argues for the first time that Mr. Dugger failed
to satisfy the requirements of SFA’s written policy for requesting an accommodation for a
disability. That policy requires that a person seeking such an accommodation must (1) promptly
notify his immediate supervisor of his disability and (2) provide to the director of Human
Resources within 14 days a letter from an appropriate healthcare or rehabilitation professional
containing a diagnosis, a prognosis, and “an evaluation of the effect the impairment will have on
the employee’s ability to perform the essential duties associated with the employee’s position,”
along with all documentation relevant to making a decision about a reasonable accommodation.
Dkt. No. 34-11, at 1-2, Defendant’s Exh. K.
That argument is unconvincing, for three reasons. In the first place, the argument that
Mr. Dugger failed to comply with all of the requirements of SFA’s written policy on requesting
an accommodation was not raised in SFA’s initial brief, so it is waived. Core Wireless Licensing
S.A.R.L. v. LG Elecs., Inc., No. 2:14-cv-911, 2015 WL 5786501, at *5 (E.D. Tex. Sept. 30,
2015) (“The Court does not consider arguments raised for the first time in a reply brief.”);
TracBeam, LLC v. Apple, Inc., No. 6:14-cv-680, 2015 WL 5786449, at *2 (E.D. Tex. Sept. 29,
2015) (courts disregard new evidence or argument offered for the first time in the reply brief);
Flooring Sys., Inc. v. Chow, No. 4:12-cv-475, 2013 WL 4674667, at *1 n.2 (E.D. Tex. Aug. 29,
2013) (“Arguments raised for the first time in a reply brief . . . are waived.”); Miles Bramwell
USA, LLC v. Weight Watchers Int’l, Inc., No. 4:12-cv-292, 2013 WL 1797031, at *4 (E.D. Tex.
Mar. 27, 2013) (same); Nearstar, Inc. v. Waggoner, No. 4:09-cv-218, 2011 WL 817374, at *4
(E.D. Tex. Mar. 2, 2011) (party “is seeking summary judgment on a ground not raised in their
motion, presented instead for the first time in the reply brief, neither of which is permissible”);
United States v. Jackson, 426 F.3d 301, 304 n.2 (5th Cir. 2005) (“arguments raised for the first
time in a reply brief are waived”).
Second, there is evidence in the record that Mr. Dugger at least substantially complied
with the requirements of the SFA policy. The evidence shows that Mr. Dugger informed his
supervisors of his condition and that his physicians regularly reported to SFA, giving updates on
his condition and their diagnoses. SFA’s “Offer of Employment” issued to Mr. Dugger on
August 29, 2014, acknowledged that the University had received medical information from Mr.
Dugger’s physician “outlining the restrictions under which [Mr. Dugger would be] able to return
to work.” Dkt. No. 34-5, Defendant’s Exh. E. In addition, until December 2014 Mr. Dugger’s
physicians continued to report regularly to SFA, stating that Mr. Dugger could return to work,
albeit with certain specified restrictions.
Third, the question of the adequacy of a request for an accommodation of a disability is a
federal issue. The requirement imposed on a person seeking an accommodation for a disability
under section 504 is for the person to provide a “sufficiently direct and specific request” for an
accommodation such that the recipient of the request will understand that an accommodation is
being sought. Nathanson v. Med. College of Pa., 926 F.2d 1368, 1381 (3d Cir. 1991); Wynne v.
Tufts Univ. Sch. of Medicine, 976 F.2d 791, 795 (1st Cir. 1992).
In the employment context, the employee must provide the employer with enough
information that the employer will know of both the employee’s disability and his desire for an
accommodation. Ballard v. Rubin, 284 F.3d 957, 960 (8th Cir. 2002); Taylor v. Phoenixville
Sch. Dist. 184 F.3d 296, 313 (3d Cir. 1999) (“[T]he employer must know of both the disability
and the employee’s desire for accommodations for that disability.”). The requirement of notice,
simply put, is that “an employee has an obligation to state how the employer may accommodate
him.” Clouatre v. Runyon, 82 F. App’x 972, 973 (5th Cir. 2003). As explained by the district
court in Badwal v. Board of Trustees of the University of the District of Columbia, 139 F. Supp.
3d 295, 313 (D.D.C. 2015), “While there is no requirement that an employee’s request for an
accommodation be in writing or invoke the magic words ‘reasonable accommodation,’ the
request must make clear that the employee ‘wants assistance with his or her disability’ so that he
or she may return, or continue, to work” (citations omitted).
While the employee’s failure to comply with a reasonable and well-publicized notice
procedure may bear on the adequacy of the employee’s notice, the question whether the notice
was adequate for section 504 purposes is not necessarily answered by the employee’s failure to
follow all of the requirements of the employer’s notice policy to the letter. The fact that Mr.
Dugger may not have complied with all the components of SFA’s policy for requesting an
accommodation is not, standing alone, enough to establish conclusively that he failed to provide
adequate notice to the university of his desire for an accommodation. Thus, the question whether
Mr. Dugger gave SFA notice not only of his disability but also of his request for an
accommodation in the form of light-duty work is a disputed issue of fact for the jury.
In sum, the Court GRANTS SFA’s motion to dismiss Mr. Dugger’s claim under the
Texas Labor Code, but DENIES SFA’s motion to dismiss Mr. Dugger’s claim under the
The Court DENIES SFA’s motion for summary judgment on the
Rehabilitation Act claim. In light of the Court’s ruling on the motion to dismiss Mr. Dugger’s
claim under the Texas Labor Code, SFA’s motion for summary judgment on that claim is denied
IT IS SO ORDERED.
SIGNED this 6th day of February, 2017.
WILLIAM C. BRYSON
UNITED STATES CIRCUIT JUDGE
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