Evelyn Little v. Texas Dept. of Criminal Justice & Gary Johnson, Director

Opinion issued March 27, 2003

In The

Court of Appeals

For The

First District of Texas

NO. 01-02-00733-CV

____________

EVELYN LITTLE, Appellant

V.

TEXAS DEPARTMENT OF CRIMINAL JUSTICE AND GARY JOHNSON,

DIRECTOR, Appellees

On Appeal from the 278th District Court

Walker County, Texas

Trial Court Cause No. 21,013-C

MEMORANDUM OPINION

Appellant, Evelyn Little, challenges a summary judgment granted in favor of

appellees, the Texas Department of Criminal Justice (TDCJ) and Gary Johnson, in her

suit alleging violations of the Texas Commission on Human Rights Act (TCHRA).

See Tex. Lab. Code. Ann. §§ 21.001–.556 (Vernon 1996 & Supp. 2003). In her sole

point of error, appellant contends that the trial court erred in granting summary

judgment because appellees knew she had a disability and did not hire her as a food

service manager because of her disability. We affirm.

Facts and Procedural Background

In 1974, the lower half of appellant’s left leg was amputated after she suffered

an accidental shotgun wound. Appellant wears a prosthesis on her left leg and, while

able to walk, moves with a discernable limp. In 1991, appellant tried to find “food

service work in Jasper, but none was available.” Between 1996 and 1999, appellant

applied on 14 separate occasions to the TDCJ for a food service manager position at

various prison units.

For each position, appellant filled out written application

forms, answered written questions, and was interviewed by a board consisting of a

ranking food service department supervisor and a warden, assistant warden, or major.

Appellant was not hired by the TDCJ for any of the food service manager positions.

Appellant brought her discrimination claim under the TCHRA, but the Texas

Commission on Human Rights concluded that “further investigation will not result

in a Cause Finding.” Appellant then brought this suit against appellees, and appellees

moved for summary judgment, arguing that (1) appellant failed to prove that she is

“disabled” or that the TDCJ perceived her to be “disabled” under the TCHRA, (2)

appellant could not show that she was the best qualified candidate and, thus, could

not prove a pretext by appellees in their selection decisions, and (3) there was no

evidence of intentional discrimination. In its order, the trial court did not state the

grounds on which it granted summary judgment.

Standard of Review

A defendant is entitled to summary judgment if the evidence disproves as a

matter of law at least one element of the plaintiff’s cause of action. Lear Siegler, Inc.

v. Perez , 819 S.W.2d 470, 471 (Tex. 1991). The issue on appeal of a summary

judgment is whether the movant met its summary judgment burden by establishing

that no genuine issue of material fact exists and that it is entitled to judgment as a

matter of law. Tex. R. Civ. P. 166a(c); Calvillo v. Gonzalez , 922 S.W.2d 928, 929

(Tex. 1996). All doubts about the existence of a genuine issue of material fact are

resolved against the movant. Rhone-Poulenc, Inc. v. Steel , 997 S.W.2d 217, 223

(Tex. 1999). When a movant has shown that it is entitled to summary judgment, the

nonmovant must come forward with evidence or law that precludes the summary

judgment. Star-Telegram, Inc. d/b/a Fort Worth Star-Telegram v. Doe , 915 S.W.2d

471, 474 (Tex. 1995). When there are multiple grounds for summary judgment and

the order does not specify the ground on which the summary judgment was rendered,

an appellant must negate all grounds on appeal. State Farm Fire & Cas. Co. v. S.S. ,

858 S.W.2d 374, 379 (Tex. 1993). If the appellant fails to negate each ground on

which the judgment may have been rendered, the appellate court must uphold the

summary judgment. Id.

Disability

Appellant brought her claim of discrimination under the TCHRA. One of the

purposes behind the TCHRA is to provide for the execution of the policies embodied

in Title I of the Americans with Disabilities Act of 1990

(ADA) and its subsequent

amendments. Tex. Lab. Code. Ann. § 21.001(3). Because the TCHRA seeks to

promote federal civil rights policy and because Texas has little case law interpreting

the TCHRA, it is proper to look to analogous federal precedent. Morrison v.

Pinkerton Inc. , 7 S.W.3d 851, 854 (Tex. App.—Houston [1st Dist.] 1999, no pet.).

Accordingly, Texas state courts follow analogous federal precedent for guidance

when interpreting the TCHRA. Quantum Chem. Corp. v. Toennies , 47 S.W.3d 473,

476 (Tex. 2001).

The TCHRA provides as follows:

An employer commits an unlawful employment practice if because of race,

color, disability, religion, sex, national origin, or age the employer:

(1) fails or refuses to hire an individual, discharges an individual, or

discriminates in any other manner against an individual in connection

with compensation or the terms, conditions, or privileges of

employment; or

(2) limits, segregates, or classifies an employee or applicant for employment

in a manner that would deprive or tend to deprive an individual of any

employment opportunity or adversely affect in any other manner the

status of an employee.

Tex. Lab. Code. Ann. § 21.051.

Texas courts apply a burden-shifting analysis in employment discrimination

cases. Quantum , 47 S.W.3d at 476 (citing McDonnell Douglas Corp. v. Green , 411

U.S. 792, 802-05 , 93 S. Ct. 1817, 1824 (1973)). A plaintiff must show that (1) she

has a disability or is regarded as disabled; (2) she is a qualified individual for the job

in question; and (3) an adverse employment decision was made because of her

disability. McInnis v. Alamo Cmty. Coll. Dist. , 207 F.3d 276 , 280 (5th Cir. 2000).

Once the plaintiff proves her prima facie case, the burden shifts to the employer to

articulate some legitimate, nondiscriminatory reason for its rejection of the plaintiff.

Id. Once the employer articulates such a reason, the burden then shifts back to the

plaintiff to establish by a preponderance of evidence that the articulated reason was

merely a pretext for unlawful discrimination. Id.

To establish a prima facie case of discrimination, a plaintiff must make a

threshold showing that she has a “disability.” Id. Failure to establish an actual or

perceived disability is fatal to a plaintiff’s case. Id. The TCHRA defines a

“disability” as: (1) a mental or physical impairment that substantially limits at least

one major life activity of that individual, (2) a record of such impairment, or (3) being

regarded as having such an impairment. Tex. Lab. Code. Ann. § 21.002(6).

Appellant claims to qualify under all three of the definitions.

Physical Impairment

Here, appellant contends that her physical impairment is her amputated leg.

As evidence of her disability, appellant directs us to her affidavit, wherein she states

that she “cannot sit or walk like other people,” and she cannot “walk quickly” and

“cannot run at all.” Appellant contends that even though she is able to walk with a

prosthesis, she is still disabled because of substantial limitations on her ability to walk

or run.

In its regulations to enforce the ADA, the Equal Employment Opportunity

Commission (EEOC) defines the term “substantially limits” to mean:

(i)Unable to perform a major life activity that the average person in

the general population can perform; or

(ii)Significantly restricted as to the condition, manner or duration

under which an individual can perform a particular major life

activity as compared to the condition, manner, or duration under

which the average person in the general population can perform

that same major life activity.

29 C.F.R. § 1630.2 (j)(1)(2003).

The Fifth Circuit has held that a claimant with a leg deformity who walked with

a slight limp did not have a disability that substantially impaired a life activity. Talk

v. Delta Airlines, Inc. , 165 F.3d 1021, 1025 (5th Cir. 1999). The court noted that the

claimant walked with a limp and moved at a slower pace than other individuals. Id.

at 1025 . The court found that although the claimant experienced “some impairment

in her ability to walk, it does not rise to the level of substantial impairment required

by the ADA and TCHRA.” Id.

Here, the summary judgment evidence shows that appellant can walk well with

the use of her prosthesis, although with a slight limp and at a slower pace. We

consider corrective and mitigating measures, such as the use of a prosthesis, when

determining whether appellant is “disabled,” as the term is defined under the ADA

and TCHRA. See Sutton v. United Airlines , 527 U.S. 471, 482-83 , 119 S. Ct. 2139,

2146-47 (1999) (finding that evaluating person in hypothetical uncorrected state was

impermissible interpretation of ADA). While there is some evidence of appellant’s

impairment, there was no summary judgment evidence that such impairment

constituted a substantial limitation of a major life activity.

Record of Impairment

Appellant alternatively contends that she “has a record of substantial

impairment of a major life activity.” To prevail under this theory, a claimant must

show that she has a history of, or has been classified as having, a mental or physical

impairment that substantially limits a major life activity. Kiser v. Original, Inc. , 32

S.W.3d 449, 453 (Tex. App.—Houston [14th Dist.] 2000, no pet.). The EEOC has

described the type of records contemplated under the ADA as being like, but not

limited to educational, medical, or employment records. Morrison , 7 S.W.3d at 857 ;

29 C.F.R. Pt. 1630, app. § 1630.2(k)(2003).

Appellant did not present any evidence or records that showed she had a record

of impairment. Appellant’s left leg was amputated in 1974 as a result of an accidental

shooting, and she contends that she has a record of impairment because “it was a year

before I was fitted with a prosthesis,” and that once she got her prosthesis, she “still

needed a cane to walk for some years.” However, at the time that she applied for the

food manager positions over 20 years later, between 1996 and 1999, appellant agreed

that she was able to walk well with the help of her prosthesis. Without more, there

is no summary judgment evidence that appellant has a substantial record of

impairment.

Regarded as Having an Impairment

Appellant alternatively contends that she is “entitled to attempt to prove to a

jury that TDCJ personnel who made the hiring decisions at issue regarded her as a

person with a substantial impairment of a major life activity.” Appellant argues that

because her impairment was stated on her application and was “apparent to anyone

who saw her walk,” the TDCJ regarded her as impaired. When asked during a

deposition by appellee’s counsel why she did not get the jobs, appellant responded

that she had the qualifications and the “only thing I could think of is my disability.”

However, appellant did not present any competent summary judgment evidence that

showed TDJC personnel regarded her as having an impairment.

Conclusion

Appellant failed to make a threshold showing that she has a disability and

failed to present sufficient evidence to establish a prima facie case of discrimination.

Accordingly, we hold that the trial court did not err in granting summary judgment

for appellees.

We overrule appellant’s sole point of error and affirm the judgment of the trial

court.

/s/ Terry Jennings

Justice

Panel consists of Justices Hedges, Jennings, and Alcala.