In Harmon v. Texas Southern Univ., No. 14-21-00125 (Tex.App. Corpus Christi 6/15/2023), the court denied the employer’s Plea to Jurisdiction. It also looked behind the employer’s weak arguments about what its supervisor knew. Ms. Harmon had taught at Texas Southern for some 16 years, when her knee gave her so much trouble that she needed surgery. The knee problems had been building for several years.
Her immediate supervisor, Michael Sollars, the chair of the English department, officed right next door to Prof. Harmon. She had remarked to Prof. Sollars a couple of times about her knee. Yet, Sollars denied knowing Harmon had knee problems. A critical comment of any discrimination nation case is looking behind the employer’s story. Yet, many courts simply refuse to make the effort to do so.
In late 2018, Prof. Sollars decided he needed to fire Harmon. Coincidence or not, this was the very time period in which Prof. Harmon had met with HR and received approval for FMLA leave for surgery. HR told Prof. Harmon that they would tell Prof. Sollars about her approved FMLA leave.
In November, 2018, Harmon was working at home grading papers. Prof. Sollars emailed her setting up a “required” meeting. Twice, Prof. Harmon replied that she could not meet with him, since she was under a doctor’s care. A second member of the faculty was also copied on the second email. Harmon told the second faculty member that she, Harmon, could not attend the meeting because she had a doctor’s appointment. Harmon explained to the second faculty member that her knee was doing much worse now and please let her, Harmon know what the meeting was about.
Despite these communications over a period of years, TSU claimed in its Plea that Sollars was not aware of Harmon’s impairment or of her upcoming surgery. The Corpus Christi court of appeals agreed that there was “some” speculation about what Sollars knew. But, even so, taking all the inferences in favor of Ms. Harmon, a jury could find that Prof. Sollars knew about her impairment and understood she was making a request for reasonable accommodation.
As the court said, “[r]easonably implicit in her communication with Sollars was the idea that Harmon could not make the meeting because she was under a doctor’s care and had a doctor’s appointment.” The court then added that Harmon’s email to the second faculty member was more explicit regarding her need to postpone the meeting. When Sollars then responded that she must attend the meeting, and that her continued employment depended on it, Prof. Sollars essentially foreclosed any further interactive dialogue. See the decision here.
Yes, it would have been better if Prof. Harmon had said the things to Sollars that she told the second faculty member. But, as the court acknowledges, it is not up to the employee to come up with a solution on her own. There is supposed to be a dialogue about accommodations. TSU never explained why the meeting had to occur within the 24 hour time frame Prof. Sollars was trying to impose.
Too, to some degree, there is always “some speculation” about what the supervisor knew – and also about what the employee knew. That is why we have jury trials.