Kirk Dillard v. SNC Lavalin Engineers & Constructors Inc.

Opinion issued May 27, 2021

In The

Court of Appeals

For The

First District of Texas

————————————

NO. 01-20-00372-CV

———————————

KIRK DILLARD, Appellant

V.

SNC-LAVALIN ENGINEERS & CONSTRUCTORS INC., Appellee

On Appeal from the 215th District Court

Harris County, Texas

Trial Court Case No. 2018-70518

O P I N I O N

Kirk Dillard sued his former employer, SNC-Lavalin Engineers &

Constructors Inc., for disability discrimination, alleging that SNC-Lavalin

unlawfully refused to reasonably accommodate his diabetes. SNC-Lavalin moved

for summary judgment, which the trial court granted. On appeal, Dillard argues the

trial court erred because the evidence raises a genuine issue of material fact as to

each essential element of his discrimination claim. We affirm.

BACKGROUND

Dillard worked for SNC-Lavalin as a mechanical designer/checker. As part of

his employment, Dillard was selected to take an alcohol test. Dillard took a

breathalyzer test, which showed he had a blood alcohol content of 0.07. About 15

minutes later, Dillard took a second breathalyzer test, which showed he had a blood

alcohol content of 0.05. Dillard requested an alternative test, either a urine or blood

test, as an accommodation for his diabetes. SNC-Lavalin denied Dillard’s request

and later fired him for violating the company’s alcohol policy.

Dillard sued, contending that SNC-Lavalin violated the Texas Commission

on Human Rights Act by refusing to administer an alternative alcohol test. See TEX.

LAB. CODE §§ 21.001–.556. Dillard alleged that as a diabetic, he could give false

positive breathalyzer test results due to ketoacidosis—a potential effect of diabetes

that can cause the production of acetones in the breath—and that his diabetes

qualified as a disability requiring reasonable accommodation under the TCHRA.

SNC-Lavalin moved for traditional and no-evidence summary judgment in a

single motion. SNC-Lavalin sought traditional summary judgment on the ground

that the evidence showed a third-party administrator randomly selected Dillard for

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alcohol testing and tested him. It also argued that Dillard could not prevail on his

disability discrimination claim because he had no evidence that:

• his diabetes-related ketoacidosis qualified as a disability;

• he notified the third-party test administrator that he suffered from

diabetes-related ketoacidosis; or

• his requested accommodation would have assisted him in performing the

essential functions of his job.

In addition, SNC-Lavalin maintained that Dillard’s requested accommodation was

not a reasonable one because it would have required the third-party test administrator

to violate its testing procedures as well as standards established by the Department

of Transportation.

Dillard filed a response opposing summary judgment. The sole evidence he

included with his response was his own declaration. In it, Dillard stated he had not

been drinking when he took the breathalyzer tests that showed he had alcohol in his

blood. He further stated he had been diagnosed with diabetes and required

medication to control its symptoms. Dillard also explained that “a typical

breathalyzer test may result in a false positive reading” because “a well-documented

byproduct” of diabetes “is a state called ketoacidosis, which causes the production

of acetones in the breath.” Dillard stated that “after the breathalyzer test indicated

alcohol was present” in his blood, he spoke with the person administering the test as

well as two company supervisors to request a urine or blood test as a reasonable

accommodation for his diabetes. But, Dillard stated, they denied his request.

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SNC-Lavalin replied, contending that no evidence existed that diabetes-

related ketoacidosis caused Dillard’s positive test results, save Dillard’s declaration,

which SNC-Lavalin moved to strike as a sham.

The trial court did not strike Dillard’s declaration as a sham but nonetheless

granted summary judgment in SNC-Lavalin’s favor. Dillard appeals.

DISCUSSION

Standard of Review

We review summary judgments de novo. Cypress Creek EMS v. Dolcefino,

548 S.W.3d 673, 683 (Tex. App.—Houston [1st Dist.] 2018, pet. denied). When, as

here, a party moves for both traditional and no-evidence summary judgment, we first

review the trial court’s ruling under the no-evidence standard. Id.

After adequate time for discovery, a party may move for summary judgment

on the basis that there is no evidence to support one or more essential elements of

the nonmovant’s claim. TEX. R. CIV. P. 166a(i); Cypress Creek, 548 S.W.3d at 684.

The trial court must grant no-evidence summary judgment unless the nonmovant

responds by producing competent summary-judgment evidence raising a genuine

issue of material fact as to each challenged element. TEX. R. CIV. P. 166a(i); Cypress

Creek, 548 S.W.3d at 684.

The standard of review mirrors legal-sufficiency review. Cypress Creek, 548

S.W.3d at 684. Thus, we will affirm a no-evidence summary judgment when there

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is a complete absence of evidence of a vital fact, the court is barred by rules of law

or evidence from giving weight to the sole evidence offered to prove a vital fact, the

evidence offered to prove a vital fact is no more than a mere scintilla, or the evidence

conclusively shows the opposite of a vital fact. Id. We consider the evidence in the

light most favorable to the nonmovant. Id.

To obtain traditional summary judgment, a party must show 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). If the movant does so, then the burden shifts to the nonmovant to

raise a genuine issue of material fact. Vertex Servs. v. Oceanwide Houston, 583

S.W.3d 841, 848 (Tex. App.—Houston [1st Dist.] 2019, no pet.).

If a party objects to a summary-judgment declaration but does not obtain a

ruling, it waives any complaint involving a defect in the declaration’s form.

Clarendon Nat’l Ins. Co. v. Thompson, 199 S.W.3d 482, 490 n.7 (Tex. App.—

Houston [1st Dist.] 2006, no pet.). But a party may raise complaints involving

defects in the declaration’s substance, such as a complaint that the declaration is

conclusory and thus no evidence, even if it did not obtain a ruling. Id.

Conclusory statements—those that do not supply the underlying facts

supporting a given representation—do not raise an issue of fact precluding summary

judgment. Fortitude Energy v. Sooner Pipe, 564 S.W.3d 167, 183 (Tex. App.—

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Houston [1st Dist.] 2018, no pet.). Likewise, a declaration that merely repeats the

allegations in the pleadings does not raise an issue of fact. Id.

Applicable Law

The TCHRA prohibits employment discrimination on the basis of disability.

LAB. §§ 21.051, 21.105. Under the TCHRA, “disability” means “a mental or

physical impairment that substantially limits at least one major life activity” or “a

record of such an impairment” or “being regarded as having such an impairment.”

Id. § 21.002(6). This includes an impairment that is episodic in nature but

“substantially limits a major life activity when active.” Id. § 21.0021(a)(2).

Major life activities include “caring for oneself, performing manual tasks,

seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking,

breathing, learning, reading, concentrating, thinking, communicating, and working.”

Id. § 21.002(11-a). Major life activities also encompass “the operation of a major

bodily function,” like “functions of the immune system, normal cell growth, and

digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine,

and reproductive functions.” Id.

In deciding whether an impairment substantially limits a major life activity,

we must do so “without regard to the ameliorative effects of mitigating measures,”

including medication. Id. § 21.0021(b). More generally, we must construe the term

disability “in favor of broad coverage of individuals” in employment-discrimination

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suits “to the maximum extent allowed” by the applicable statutory provisions. Id.

§ 21.0021(a)(1).

It is unlawful for an employer subject to the anti-discrimination provisions of

the TCHRA “to fail or refuse to make a reasonable workplace accommodation to a

known physical or mental limitation of an otherwise qualified” employee with a

disability, unless the employer “demonstrates that the accommodation would impose

an undue hardship on the operation of the business.” Id. § 21.128(a).

To prevail on a claim that an employer failed or refused to make a reasonable

accommodation, an employee-plaintiff must prove that:

(1) he has a disability as that term is statutorily defined;

(2) an employer covered by the statute had notice of his disability;

(3) with reasonable accommodation he could perform his job’s essential

functions; and

(4) his employer failed or refused to make such an accommodation.

Donaldson v. Tex. Dep’t of Aging & Disability Servs., 495 S.W.3d 421, 439 (Tex.

App.—Houston [1st Dist.] 2016, pet. denied).

Finally, in applying the anti-discrimination provisions of the TCHRA, we are

mindful that one of their purposes is to implement the policies embodied in Title I

of the Americans with Disabilities Act and its amendments, which address

employment discrimination. LAB. § 21.001(3). Thus, federal decisions interpreting

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the ADA may guide our interpretation of the TCHRA. Primeaux v. Conoco, Inc.,

961 S.W.2d 401, 403 n.2 (Tex. App.—Houston [1st Dist.] 1997, no writ).

Analysis

In the trial court, SNC-Lavalin’s no-evidence motion challenged the first three

elements of Dillard’s reasonable-accommodation claim—disability status, notice of

disability, and the existence of a reasonable accommodation. On appeal, Dillard

argues that he introduced more than a scintilla of evidence as to each element.

We disagree with Dillard. We address each challenged element in turn.

Disability Status

Dillard argues that a genuine issue of material fact exists as to the first element

of his claim, which is whether he is disabled. See Donaldson, 495 S.W.3d at 439. In

support of this argument, Dillard relies on his own declaration, in which he makes

the following statements concerning his diabetes:

Sometime in 2016, I was diagnosed with Hyperglycemia (diabetes) and

am required to take prescribed medication to control its symptoms.

Dillard does not provide any further details as to his impairment, including the

impact it has on his daily life, job-related tasks, or health. He does not identify the

type or severity of his diabetes, the medication he takes for it, the symptoms the

medication controls, or what happens when his diabetes is uncontrolled. Nor is there

any additional evidence in the record as to his diabetes, such as medical records.

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Dillard argues that his declaration creates a fact issue because it shows that he

has diabetes, a physical impairment that substantially limits a major life activity. He

reasons that his diabetes limits a major life activity because such activities include

the operation of a major bodily function, like endocrine function, which relates to

the glandular production of hormones, and diabetes affects the pancreas’s production

of the hormone insulin. See LAB. § 21.002(11-a).

We agree that Dillard’s representation that he has been diagnosed as a diabetic

is some evidence he has this impairment. See Donaldson, 495 S.W.3d at 441

(plaintiff’s testimony, if credited, is more than scintilla of evidence). We likewise

acknowledge the TCHRA provides that endocrine function is a major life activity

for purposes of determining whether an impairment is disabling. See LAB.

§ 21.002(11-a). But the record lacks evidence about the extent to which Dillard’s

diabetes affects his endocrine function, apart from a general statement that he must

take an unidentified prescription medication to control unspecified symptoms.

Dillard’s general statement is insufficient to carry his summary-judgment burden,

which requires him to show that his impairment substantially limits, not just affects,

his endocrine function. See id. § 21.002(6). Here, there is no evidence that Dillard’s

diabetes substantially limits his endocrine function or another major life activity.

We previously have held that a plaintiff who asserts diabetes as a disability

must introduce evidence that this impairment substantially limits a major life activity

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to avoid summary judgment. In Norwood v. Litwin Engineers & Constructors, the

plaintiff sued his employer for unlawful termination alleging that he was fired due

to his diabetes. 962 S.W.2d 220, 222 (Tex. App.—Houston [1st Dist.] 1998, pet.

denied). His employer successfully moved for summary judgment on several

grounds, including that the plaintiff was not disabled. Id. We reversed and remanded,

holding that the plaintiff had introduced evidence that his diabetes substantially

limited a major life activity. Id. at 224. Neither the ADA nor the TCHRA defined

major life activity at the time. Id. Relying on the federal regulation implementing

the ADA’s substantial-limitation requirement, we concluded that the requirement

turned on evidence of the impairment’s nature and severity, duration, and long-term

impact. Id. We then held that the plaintiff’s evidence of the effects of diabetes on his

health—loss of consciousness, apparent inebriation, incoherence, belligerence,

vision impairment, circulatory problems—created a genuine issue of material fact as

to whether his diabetes substantially limited a major life activity and thereby

rendered him disabled under the TCHRA. Id.

Norwood, however, has in significant respects been superseded by statute.

Since we decided Norwood, the ADA and TCHRA have both been amended to

broaden their applicability. See, e.g., Cannon v. Jacobs Field Servs. N. Am., 813 F.3d

586, 590–91 (5th Cir. 2016) (discussing 2008 amendments to ADA and federal

regulations implementing these amendments); City of Houston v. Proler, 437

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S.W.3d 529, 533 n.17 (Tex. 2014) (noting that Texas Legislature amended relevant

provisions of TCHRA to correspond to 2008 ADA amendments). These

amendments clarify that the term “disability” shall be construed in favor of broad

coverage of individuals to the maximum extent allowed by the terms of these laws.

42 U.S.C. § 12102(4)(A); LAB. § 21.0021(a)(1).

In conformity with this directive, the federal regulation implementing the

ADA’s substantial-limitation requirement now provides that it “shall be construed

broadly in favor of expansive coverage, to the maximum extent permitted by the

terms of the ADA.” 29 C.F.R. § 1630.2(j)(1)(i); see also 42 U.S.C. § 12102(4)(B)

(providing that substantial-limitation requirement “shall be interpreted consistently

with the findings and purposes of the ADA Amendments Act of 2008”). An

impairment qualifies as a disability “if it substantially limits the ability of an

individual to perform a major life activity as compared to most people in the general

population.” 29 C.F.R. § 1630.2(j)(1)(ii). This showing “usually will not require

scientific, medical, or statistical analysis.” Id. § 1630.2(j)(1)(v). Moreover, the

impairment “need not prevent, or significantly or severely restrict, the individual

from performing a major life activity in order to be considered substantially

limiting.” Id. § 1630.2(j)(1)(ii). Though “not every impairment will constitute a

disability” under the ADA, the substantial-limitation requirement “should not

demand extensive analysis.” Id. § 1630.2(j)(1)(ii)–(iii).

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In addition, the federal regulation implementing the ADA’s substantial-

limitation requirement now lists several impairments that will “in virtually all cases”

qualify a plaintiff as being disabled because “these types of impairments will, as a

factual matter, virtually always be found to impose a substantial limitation on a

major life activity” due to their “inherent nature.” Id. § 1630.2(j)(3)(ii). With respect

to these particular impairments, “the necessary individualized assessment” of

disability status “should be particularly simple and straightforward.” Id. Diabetes is

included among these listed impairments due to its effect on endocrine function. See

id. § 1630.2(j)(3)(iii) (listing deafness, blindness, intellectual disability, missing

limbs or mobility impairments requiring wheelchair, autism, cancer, cerebral palsy,

diabetes, epilepsy, HIV, multiple sclerosis, muscular dystrophy, major depressive

disorder, bipolar disorder, PTSD, obsessive compulsive disorder, and

schizophrenia). In contrast, when we decided Norwood, the interpretive guidance

then in effect indicated a far higher degree of impairment was required for diabetes

to be disabling; it stated that a diabetic “who without insulin would lapse into a coma

would be substantially limited,” and thus disabled, “because the individual cannot

perform major life activities without the aid of medication.” 962 S.W.2d at 224

(quoting prior version of guidance available at 56 Fed. Reg. 35,726, 35,741).

But despite the broadening of the ADA and TCHRA, both still require a

plaintiff’s impairment to substantially limit a major life activity to qualify as

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disabling. 42 U.S.C. § 12102(1)(A); LAB. § 21.002(6). And while the federal

regulation implementing the ADA’s substantial-limitation requirement has

liberalized the standard for assessing whether an impairment substantially limits a

major life activity in general and has done so with respect to diabetes in particular,

the regulation still mandates that an individualized disability assessment be made on

the facts of each case, even those involving impairments that will virtually always

be found to impose a substantial limitation. 29 C.F.R. § 1630.2(j)(1)(iv), (j)(3)(ii).

Consistent with the requirement that courts make an individualized assessment based

on the facts of a given case, federal courts require plaintiffs who assert diabetes as a

disability to introduce some evidence that their diabetes substantially limits their

endocrine function or another major life activity to qualify as disabled. See, e.g.,

Cloutier v. GoJet Airlines, 311 F. Supp. 3d 928, 937–38 (N.D. Ill. 2018) (summary-

judgment evidence showed plaintiff’s diabetes substantially limited his endocrine

function and thus qualified as disabling under ADA); Levy v. N.Y. State Dep’t of

Envtl. Conservation, 297 F. Supp. 3d 297, 319 (N.D.N.Y. 2018) (same).

The quality and quantity of evidence required to raise a fact issue as to whether

diabetes substantially limits endocrine function is minimal. In Cloutier, for example,

it was undisputed that the plaintiff’s doctor diagnosed him as having diabetes and

prescribed Metformin to treat the condition. 311 F. Supp. 3d at 938. It was further

undisputed that the plaintiff experienced thirst and weight loss before he began using

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Metformin. Id. The district court ruled that these facts sufficed to create a fact issue

as to whether the plaintiff’s diabetes substantially limited his endocrine function. Id.

The district court reasoned that after the 2008 amendments liberalizing the ADA, no

more was required to defeat the defendant’s contention that the plaintiff was not

disabled as a matter of law. See id. (distinguishing decisions applying more rigorous

pre-amendment standard for substantial limitation). Similarly, in Levy, the court held

evidence that a diabetic had to check his glucose levels and take insulin several times

a day as well as exercise and regulate his food to ensure his glucose levels did not

become dangerously high or low met the standard. 297 F. Supp. 3d at 319.

In contrast, Dillard’s summary-judgment evidence does not cross the low

threshold required to raise a genuine issue of material fact on disability. To do so,

Dillard had to introduce some evidence of an impairment that substantially limits a

major life activity. He relies solely on his own declaration, which states that he was

diagnosed with diabetes and is “required to take prescribed medication to control its

symptoms.” Dillard’s statements suffice to create a fact issue as to whether Dillard

has an impairment, diabetes, and whether this impairment affects a major life

activity, his endocrine function. But Dillard’s statements do not create a fact issue

as to whether his diabetes substantially limits his endocrine function. Nowhere in his

declaration does Dillard identify a particular limitation that his diabetes imposes on

his endocrine function, other than having to take an unidentified medication for

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unspecified symptoms of unstated severity or significance. A factfinder could not

reasonably infer that Dillard’s diabetes substantially limits his endocrine function

based on Dillard’s vague description of his medical condition and the care it requires

because this vague description does not make a substantial limitation any more

probable than some lesser degree of limitation. See Graham Cent. Station v. Pena,

442 S.W.3d 261, 265 (Tex. 2014) (per curiam) (holding that factfinder could not

draw inference from cursory testimony lacking in specificity because it could give

rise to any number of inferences, none of which was more probable than another).

To hold otherwise on this record, we would have to decide that a plaintiff’s

use of any medication to treat any symptom of an impairment affecting a major life

activity always amounts to a substantial limitation or that having to use any

medication to treat any symptom of diabetes affecting endocrine function in

particular does so. But neither proposition is compatible with the TCHRA.

The use or nonuse of medication, prescription or otherwise, does not

determine whether an individual is disabled. See Carter v. Pathfinder Energy Servs.,

662 F.3d 1134, 1144 (10th Cir. 2011) (stating so with respect to “corrective

devices”); Swanson v. Univ. of Cincinnati, 268 F.3d 307, 316 (6th Cir. 2001)

(treating “medicine” as type of corrective device). Both the ADA and TCHRA

require evidence of a substantial limitation. 42 U.S.C. § 12102(1)(A); LAB.

§ 21.002(6). We therefore must be mindful to distinguish between summary-

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judgment evidence that an impairment substantially limits a major life activity and

evidence that an impairment merely affects a major life activity to some lesser

degree. See B.C. v. Mount Vernon Sch. Dist., 837 F.3d 152, 160 (2d Cir. 2016).

With respect to a medication used to treat an impairment, whether its use

evidences that the impairment substantially limits a major life activity necessarily

turns on the type of medication at issue and the nature of the symptoms it treats.

Compare Choleva v. New England Stair Co., No. 18-0756, 2020 WL 3976969, at

*6–7 (D. Conn. July 14, 2020) (plaintiff prescribed Ritalin for ADHD did not create

fact issue as to whether his ADHD substantially limited major life activities of

learning, concentrating, and thinking via testimony that his symptoms included

inability to focus and being easily distracted), with Martin v. St. Luke’s Episcopal

Hosp., No. 13-0718, 2014 WL 4810303, at *2, *6–7 (S.D. Tex. Sept. 23, 2014)

(plaintiff prescribed medication for hypertension just barely created fact issue as to

whether hypertension substantially limited major life activity of working via

testimony that she experienced vision problems, headaches, and confusion due in

part to her blood pressure). Evidence the plaintiff uses an unidentified medication to

control unspecified symptoms of unstated severity or significance, standing alone,

cannot raise a fact issue as to whether his impairment substantially limits a major

life activity and thereby renders him disabled because not everyone who uses

medication, including medications used to manage medical conditions that are

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serious in general, is disabled under the ADA. See Bates v. Dura Auto. Sys., 625

F.3d 283, 284–86 (6th Cir. 2010) (directing trial court to dismiss ADA claim made

by plaintiffs fired for legal use of prescription drugs prohibited by employer,

including antianxiety agents and opioids, because plaintiffs were not disabled as

required by statutory provision under which they sued).

Nor is diabetes a special case dispensing with the statutory distinction between

impairments that substantially limit a major life activity and those that merely affect

one. While the regulation implementing the ADA’s substantial-limitation

requirement states that diabetes will satisfy this requirement in virtually all cases due

to its effect on endocrine function, the regulation does not relieve the plaintiff of his

burden to present evidence to support such a finding. 29 C.F.R. § 1630.2(j)(1)(iv),

(j)(3)(ii). Nor does the regulation establish a presumption that diabetes substantially

limits endocrine function. Id. § 1630.2(j)(1)(iv), (j)(3)(ii)–(iii). Indeed, the

administrative agency that promulgated this regulation, the Equal Employment

Opportunity Commission, has disavowed such an interpretation in its interpretive

guidance. See 29 C.F.R. Pt. 1630, App. (“As the regulations point out, disability is

determined based on an individual assessment. There is no ‘per se’ disability.”).

Congress could have created a per se rule or presumption as to diabetes or

other impairments, but it did not do so in either the original or amended versions of

the ADA. See Griffin v. United Parcel Serv., 661 F.3d 216, 222–23 (5th Cir. 2011)

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(applying version of ADA in effect before 2008 amendments and holding with

respect to diabetic plaintiff that Act did not include concept of per se disability);

Scavetta v. Dillon Cos., 569 F. App’x 622, 624–25 (10th Cir. 2014) (applying post-

2008 version of ADA and holding with respect to arthritic plaintiff that Act did not

include concept of per se disability). The absence of a statutory provision

establishing per se disabilities is not an oversight; a proposal to include per se

disabilities was considered and rejected in negotiations over the legislative language

that Congress enacted as the 2008 amendments to the ADA. See Kevin Barry,

Toward Universalism: What the ADA Amendments Act of 2008 Can and Can’t Do

For Disability Rights, 31 BERKELEY J. EMP. & LAB. L. 203, 269–70 (2010) (noting

proposal included “broad list of approximately twenty-five per se disabilities” that

“would not require any showing of limitation” but “disability community rejected

the per se list and it was dropped from the proposed legislative language”).

Consistent with the statutory and regulatory text, the legislative history of the

2008 amendments to the ADA, and the EEOC’s interpretive guidance, federal

district courts have rejected the notion of per se disabilities even with respect to

impairments that are serious in nature. See Hardy v. Pepsi Bottling Co. of N.Y., No.

14-4007, 2016 WL 1301181, at *4 (S.D.N.Y. Mar. 31, 2016) (medical conditions,

even serious ones, are not per se disabilities under ADA), aff’d, 690 F. App’x 60 (2d

Cir. 2017); see, e.g., Marquez v. Glendale Union High Sch. Dist., No. 16-3351, 2018

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WL 6418540, at *6–7 (D. Ariz. Dec. 6, 2018) (rejecting argument that brain tumor

is per se disability); Gabriel-Yambo v. Centro Medico Del Turabo, No. 14-1641,

2015 WL 7428562, at *11–12 (D.P.R. Nov. 20, 2015) (rejecting argument that

Marfan Syndrome is per se disability). This is equally true of the impairments the

regulation identifies as ones that factfinders will virtually always find to be

disabling, including diabetes. See, e.g., Bell v. Alion Sci. & Tech. Corp., No. 15-

4334, 2017 WL 2123933, at *5–6 (D.S.C. May 1, 2017) (diabetes is not per se

disability), report and recommendation adopted by 2017 WL 2118490 (D.S.C. May

16, 2017); Russell v. Phillips 66 Co., 184 F. Supp. 3d 1258, 1268 (N.D. Okla. 2016)

(major depressive order is not per se disability), aff’d, 687 F. App’x 748 (10th Cir.

2017); Alston v. Park Pleasant, Inc., No. 14-7237, 2016 WL 398018, at *1 (E.D. Pa.

Feb. 2, 2016) (cancer is not per se disability); Son v. Baptist Healthcare Affiliates,

No. 14-0337, 2015 WL 5305235, at *3 (W.D. Ky. Sept. 10, 2015) (epilepsy is not

per se disability); see also Curtis D. Edmonds, Lowering the Threshold: How Far

Has the Americans with Disabilities Act Amendments Act Expanded Access to the

Courts in Employment Litigation?, 26 J.L. & POL’Y 1, 28–30 (2018) (noting that

plaintiffs “with diabetes, cancer, epilepsy, depression, or other impairments listed in

the EEOC regulations cannot expect to automatically qualify as having a disability”

given statutory requirement of individualized assessment and that those “who have

argued that their impairment should be treated as a per se disability have not met

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with success”). The evidentiary threshold to survive summary judgment is a low one,

but the plaintiff must show a substantial limitation even with respect to the particular

impairments expressly highlighted by the regulation. See Rodriguez-Alvarez v.

Municipality of Juana Diaz, No. 14-1924, 2017 WL 666052, at *3–4 (D.P.R. Feb.

17, 2017) (eschewing per se rule as to HIV but applying low evidentiary standard on

summary judgment and holding that evidence of specific symptoms, sick leave,

precautions taken to avoid hospitalization, and medical records documenting

treatment created fact issue as to whether plaintiff’s HIV substantially limited her

immune system); see also Alexiadis v. N.Y. Coll. of Health Professions, 891 F. Supp.

2d 418, 428–29 (E.D.N.Y. 2012) (concluding fact issue existed as to whether HIV

substantially limited plaintiff’s immune system and thus made him disabled based

on evidence of his ailments, including Staph infection requiring emergency room

visit, as well as evidence of delayed healing and decreased T-cell levels, which

together provided some indication his immune system was compromised).1

1

We acknowledge that some federal district courts have suggested a per se rule

applies. For example, in Hensel v. City of Utica, the court suggested “a plaintiff

can show she is disabled merely by alleging that she suffers from diabetes and

takes medication for it.” No. 15-0374, 2017 WL 2589355, at *4 (N.D.N.Y. June

14, 2017). But Hensel concerned a motion to dismiss, not a motion for summary

judgment, and the court therefore was not assessing whether evidence created a

fact issue. See id. at *1–2 (stating plaintiff had to allege sufficient facts to state

facially plausible claim to survive motion to dismiss). In addition, the plaintiff’s

allegations in Hensel were more detailed than merely alleging he had diabetes

and required medication, and the district court relied on these more detailed

allegations in denying the defendant’s motion to dismiss. See id. at *4 (holding

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In sum, though the substantial-limitation inquiry is not a demanding one, it

still requires an individualized assessment focusing on the specific effects the

impairment has on the plaintiff, not the general effects that people who suffer the

disease tend to experience. Ruiz v. Woodward, Inc., No. 17-3046, 2019 WL

6893039, at *5 (D. Colo. Dec. 18, 2019). Thus, a plaintiff cannot avoid summary

judgment simply by identifying a serious impairment, even one the substantial-

limitation regulation states factfinders will virtually always find to be disabling, and

then leaving it to the court to infer that it substantially limits a major life activity.

Beebe v. Colorado, No. 18-1357, 2019 WL 6255763, at *4 (D. Colo. Nov. 22, 2019).

Because Dillard has not introduced any evidence that his diabetes substantially limits

his endocrine function or another of major life activity, we hold that he has not raised

a genuine issue of material fact as to whether he is disabled under the TCHRA.

plaintiff’s claim that his diabetes substantially limited his endocrine function

survived motion to dismiss given his allegations that he had type-two diabetes,

nearly died from dangerously high blood-sugar levels and experienced multiple

specific symptoms—loss of eyesight, excessive urination, excessive thirst,

weakness, fatigue, dehydration, excessive dry mouth, and rapid weight loss—

before diagnosis, and controlled his diabetes via oral medication afterward).

Thus, Hensel did not apply a per se rule. And if Dillard had testified in similar

detail in his summary-judgment declaration, that testimony would have raised a

fact issue as to his disability status under the correct legal standard. See, e.g.,

Cloutier, 311 F. Supp. 3d at 937–38; Levy, 297 F. Supp. 3d at 319.

21

Notice of Disability

Dillard argues that a genuine issue of material fact exists as to the second

element of his claim, notice of disability. See Donaldson, 495 S.W.3d at 439. In

support of this argument, Dillard again relies on his own declaration, in which he

makes the following statements concerning notice:

Immediately after the breathalyzer test indicated alcohol was present in

my blood, I spoke to the test taker, my first level supervisor and my

second level supervisor, and requested to be given the opportunity to

take an alternative test (i.e. urine or blood test) as a reasonable

accommodation for my disability (diabetes).

Dillard does not provide any further details as to notice, including what he

specifically told each of the three people with whom he spoke. Notably, Dillard does

not claim that he told any of them, or anyone else, about his diabetes or its potential

to affect the results of his breathalyzer test before he took and failed the test.

An employer cannot be liable for failing to reasonably accommodate an

employee’s disability unless it knew of the disability. Norwood, 962 S.W.2d at 225.

And even when an employer is generally aware of a disability, it may be unable to

anticipate all the issues that the disability may create on the job and spontaneously

accommodate them. Loulseged v. Akzo Nobel Inc., 178 F.3d 731, 735 n.4 (5th Cir.

1999). Thus, when an employee’s disability or need for a particular disability-related

accommodation is not obvious, the employee must timely notify his employer of the

disability and afford his employer an opportunity to reasonably accommodate it.

22

Fussell v. Georgia Ports Auth., 906 F. Supp. 1561, 1570 (S.D. Ga. 1995), aff’d, 106

F.3d 417 (11th Cir. 1997). When an employee requests an accommodation for the

first time only after it has become clear that an adverse employment action is

imminent, his notice of disability is not timely. Jones v. Nationwide Life Ins. Co.,

696 F.3d 78, 90 (1st Cir. 2012).

Courts have recognized that employers often will not be aware that an

employee has diabetes based on daily workplace interaction. See, e.g., Schneider v.

Giant of Maryland, 389 F. App’x 263, 269–70 (4th Cir. 2010) (per curiam). Dillard

does not contend that SNC-Lavalin knew of his diabetes before the breathalyzer test.

He admits that he sought an accommodation for his diabetes only after his initial

breathalyzer test was positive for alcohol. Undisputed evidence also shows that:

• SNC-Lavalin’s alcohol policy prohibits employees from being under the

influence at work and states that violators are subject to discharge;

• its alcohol policy provides for testing under several circumstances,

including random testing when required by clients; and

• Dillard signed a form acknowledging that he had received and understood

SNC-Lavalin’s policy concerning alcohol.

Thus, the summary-judgment record establishes that Dillard knew he was subject to

random alcohol tests and could be fired if he tested positive but did not notify SNC-

Lavalin that his diabetes might cause a false-positive breathalyzer test result until

after his test result indicated a violation of SNC-Lavalin’s alcohol policy and an

adverse employment action, possibly termination, was imminent.

23

On this record, we hold that there is no evidence that Dillard timely notified

SNC-Lavalin of his disability. An employee does not timely notify his employer of

a non-obvious disability, like diabetes, or timely seek an accommodation for a non-

obvious disability-related issue, like the effect of ketoacidosis on breathalyzer tests,

if he does so only once some adverse employment action is imminent. See Jones,

696 F.3d at 90; see., e.g., Halpern v. Wake Forest Univ. Health Sciens., 669 F.3d

454, 457–59 & n.1, 465 (4th Cir. 2012) (affirming summary judgment against

student who alleged medical school did not reasonably accommodate his ADHD and

anxiety disorder in part because he did not allege his behavioral infractions were

disability-related until after disciplinary board recommended he be dismissed from

school); Hill v. Kansas City Area Transp. Auth., 181 F.3d 891, 894 (8th Cir. 1999)

(affirming summary judgment against employee who alleged employer did not

reasonably accommodate her disability-related drowsiness when she did not raise

issue until after she was caught sleeping on job, an infraction she knew would lead

to her discharge). This general principle is especially apt in the context of workplace

alcohol testing. Given that alcohol testing is time-sensitive, and delay will alter its

results, an employee’s notice of disability and request for an alternative method of

testing is untimely if made only after another method has yielded a positive result.

24

Existence of a Reasonable Accommodation

Dillard argues that a genuine issue of material fact exists as to the third

element of his claim, the existence of a reasonable accommodation, which requires

proof that with a reasonable accommodation Dillard could perform his job’s

essential functions. See Donaldson, 495 S.W.3d at 439. In support of this argument,

Dillard once more relies on his own declaration, in which he makes the following

statements on the subject of accommodation:

Because I am diabetic (hyperglycemia), a typical breathalyzer test may

result in a false positive reading. Specifically, it is well-documented

that a byproduct of hyperglycemia is a state called ketoacidosis, which

causes the production of acetones in the breath. In other words, the

breathalyzer may read significant levels of alcohol on a diabetic’s

breath, where in fact there may be none at all.

These representations about diabetic ketoacidosis, its ability to produce acetones in

the breath, and the risk of those acetones causing a false-positive breathalyzer test

result are the sole evidence on these subjects. Notably, these representations

essentially paraphrase Dillard’s petition, which alleges:

Because Plaintiff is a diabetic, a typical breathalyzer test may very well

result in a false positive reading. Specifically, a byproduct of

hyperglycemia is a state called ketoacidosis, which causes the

production of acetones in the breath. In other words, the breathalyzer

may read significant levels of alcohol on a diabetic’s breath, where in

fact there may be none at all.

25

Dillard has not offered any expert testimony on these issues, despite their scientific

and technical nature. Though he asserts that diabetes-related ketoacidosis is a well-

documented fact, the record is devoid of medical literature or similar evidence.

To defeat a no-evidence summary-judgment motion challenging whether a

reasonable accommodation would allow the plaintiff to do his job, he must introduce

evidence that an accommodation of his disability exists and is reasonable. See

Hagood v. Cty. of El Paso, 408 S.W.3d 515, 525 (Tex. App.—El Paso 2013, no pet.).

To establish the existence of a reasonable accommodation, Dillard must show there

is some causal connection between the major life activity his diabetes allegedly

substantially limits, endocrine function, and the accommodation that he seeks, an

alternative method of alcohol testing. See Youngman v. Peoria Cty., 947 F.3d 1037,

1042 (7th Cir. 2020). Thus, to avoid no-evidence summary judgment, Dillard must

introduce evidence that his diabetes caused him to have ketoacidosis, which in turn

resulted in the presence of acetones in his breath and a false-positive breathalyzer

test result, and that an alternative method of alcohol testing would not have indicated

that he had been drinking on the job. See id. at 1042–43.

The problem, for Dillard, is that the only evidence of such a causal connection

consists of his own conclusory assertion that one exists. Dillard says that “a typical

breathalyzer test may result in a false positive reading,” but he does not say how he

knows this or even how he knows his test was a typical one subject to this fallibility.

26

He says the production of acetones in the breath as a result of diabetic ketoacidosis

is well-documented, but he has not introduced any of this documentation. Nor has

Dillard introduced any expert testimony on the subject. Further, the record contains

no evidence that Dillard was suffering from ketoacidosis when tested. In sum, all

Dillard has supplied is a layman’s say-so on complex medical issues. If an expert’s

say-so is no evidence, then a layman’s say-so is no evidence as well. See Travelers

Ins. Co. v. Wilson, 28 S.W.3d 42, 48 (Tex. App.—Texarkana 2000, no pet.)

(conclusory statements by experts and laymen alike are not evidence).

In his brief, Dillard does cite a case report involving a single patient for the

proposition that diabetic ketoacidosis affects breathalyzer results. See Jacob

Reinhart, Early Detection of Diabetic Ketoacidosis by Breathalyzer in a Sailor

Reporting for Duty, MIL. MED., Nov.–Dec. 2019, at e951–52. But Dillard did not

file this case report in the trial court, so the case report is not summary-judgment

evidence. See Lance v. Robinson, 543 S.W.3d 723, 732 (Tex. 2018) (materials not

filed with trial court are not competent summary-judgment evidence); see also

Robinson v. Warner–Lambert, 998 S.W.2d 407, 412 (Tex. App.—Waco 1999, no

pet.) (trial court cannot take judicial notice of article in medical journal). And

because the case report is not in the record, we cannot consider it on appeal. Dauz v.

Valdez, 571 S.W.3d 795, 811 (Tex. App.—Houston [1st Dist.] 2018, no pet.).

27

At any rate, a case report could not be used to establish that diabetic

ketoacidosis affects breathalyzer results because case reports, which are based on

the examination and treatment of patients in an uncontrolled setting, are

scientifically unreliable as proof of causation. Merrell Dow Pharm. v. Havner, 953

S.W.2d 706, 719–20 (Tex. 1997). Moreover, the case report in question was

published more than two years after Dillard’s breathalyzer test. So, even if it was in

the record and qualified as scientifically reliable evidence that diabetic ketoacidosis

can cause false-positive breathalyzer test results, it would not be evidence that this

potential for false-positives was known when Dillard was tested.

Youngman illustrates the inadequacy of Dillard’s summary-judgment proof

on the existence of a reasonable accommodation. In that case, a counselor at a

juvenile detention center alleged the center refused to reasonably accommodate his

disability. 947 F.3d at 1039. Specifically, he alleged that working in a control room

filled with electronics gave him motion sickness due to his hyperthyroidism and that

he therefore needed to be assigned duties outside of the control room. Id. at 1039–

41. In affirming summary judgment for the center, the court of appeals observed:

The problem, for Youngman, is the lack of a causal nexus between his

hyperthyroidism and the particular limitation for which he seeks an

accommodation. Youngman presumes that the motion sickness he

suffers when assigned to the detention center’s control room is the

result of his hyperthyroidism. But he cites no evidence in the record to

support that necessary causal link.

28

Id. at 1042. Absent evidence of a causal link between the counselor’s motion

sickness and his hyperthyroidism, his claim failed as a matter of law. Id. at 1043.

Dillard’s claim fails as a matter of law for the same reason. Having failed to

introduce any evidence that his diabetes caused him to develop ketoacidosis, which

in turn produced acetones in his breath resulting in a false breathalyzer test result,

Dillard has failed to raise a genuine issue of material fact as to whether the

accommodation he seeks, an alternative method of alcohol testing, bears any relation

to his disability or would have allowed him to perform the essential functions of his

job. On this record, we hold that Dillard has not raised a fact issue as to the existence

of a reasonable accommodation that would have allowed him to do his job.

CONCLUSION

Dillard failed to introduce evidence raising a genuine issue of material fact on

three essential elements of his claim—disability status, notice of disability, and the

existence of a reasonable accommodation. Each of these failures independently

supports the trial court’s no-evidence summary judgment. We affirm.

Gordon Goodman

Justice

Panel consists of Chief Justice Radack and Justices Goodman and Farris.

29