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NO. 06-0318
___________________________________________________________
IN THE
SUPREME COURT
OF TEXAS
___________________________________________________________
CITY OF GRAPEVINE,
Petitioner
V.
JAMES B. DAVIS,
Respondent
___________________________________________________________
On Petition for Review from the
Court of Appeals Second District
Forth Worth, Texas
___________________________________________________________
S
RESPONDENT’ BRIEF ON THE MERITS
LAURANCE L. PRIDDY
Texas State Bar No. 16323000
ADVOCACY, INCORPORATED
Respondent respectfully 1420 W. Mockingbird Lane, Suite 450
requests oral argument Dallas, Texas 75247
(214) 630-0916 (Phone)
(214) 630-3472 (Fax)
BRIAN EAST
Texas State Bar No. 06360800
ADVOCACY, INCORPORATED
7800 Shoal Creek Blvd., Suite 171-E
Austin, Texas 78757
(512) 454-4816 (Phone)
(512) 454-3999 (Fax)
ATTORNEYS FOR RESPONDENT
TABLE OF CONTENTS
INDEX OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv
STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
STATEMENT OF JURISDICTION (Contested) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
ISSUES PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
SUMMARY OF THE ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
ARGUMENT AND AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
REPLY POINTS
1. S
PETITIONER’ BURDEN OF PROOF . . . . . . . . . . . . . . . . . . . . . . . . 10
2. APPLICABLE LAW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
3. RUNNING IS A MAJOR LIFE ACTIVITY UNDER TEXAS LAW . . . 13
4. THE MCDONNELL DOUGLAS BURDEN-SHIFTING FORMULA
DOES NOT APPLY TO FAILURE-TO-ACCOMMODATE CLAIMS
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
5. THE CITY DID NOT PROVE AS A MATTER OF LAW THAT IT
PROVIDED DAVIS WITH A REASONABLE ACCOMMODATION
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
6. DAVIS SUFFERED AN ADVERSE EMPLOYMENT ACTION BY THE
S
CITY’ FAILURE TO ACCOMMODATE, AND BY BEING
CONSTRUCTIVELY DISCHARGED . . . . . . . . . . . . . . . . . . . . . . . . . 33
CROSS POINTS
ii
(Respondent seeks review of these points only if the Petition for Review is granted)
1. THE CITY FAILED TO CONCLUSIVELY PROVE THAT DAVIS
WAS NOT SUBSTANTIALLY LIMITED IN THE MAJOR LIFE
ACTIVITY OF WALKING, AND THE LOWER COURT ERRED IN
ITS CONTRARY HOLDING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
2. THE CITY FAILED TO PROVE CONCLUSIVELY THAT DAVIS IS
NOT SUBSTANTIALLY LIMITED IN THE MAJOR LIFE
ACTIVITIES OF LIFTING, CLIMBING STAIRS, AND WORKING
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
CONCLUSION AND PRAYER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
iii
TABLE OF AUTHORITIES
CASES
Aka v. Washington Hosp. Center, 156 F.3d 1284 (D.C. Cir. 1998) (en banc) . . . . 25, 32
Allen v. Best Foods Baking Co., 2003 WL 22858351 (E.D. Pa. Oct. 22, 2003) . . . . . . 44
American Tobacco Co. v. Grinnell, 951 S.W.2d 420 (Tex.1997) . . . . . . . . . . . . . . . . . 12
Anderson v. Coors Brewing Co., 181 F.3d 1171 (10th Cir.1999) . . . . . . . . . . . . . . . . . 44
Baltimore & Ohio R. Co. v. Bowen, 482 A.2d 921 (Md. App. 1984) . . . . . . . . . . . . . . 26
Barnes v. Northwest Iowa Health Center, 238 F. Supp. 2d 1053 (N.D. Iowa 2002)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Bartlett v. New York State Bd. of Law Examiners, 2001 WL 930792 (S.D.N.Y. Aug. 15,
2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Belk v. Southwestern Bell Telephone Co., 194 F.3d 946 (8th Cir. 1999) . . . . . 42, 43, 46
Benson v. E.I. Du Pont De Nemours & Co., 182 F. Supp. 2d 527 (W.D. Va. 2002)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Billings v. Taylor Royall, Inc., 2000 WL 490734 (D. Md. April 11, 2000) . . . . . . . . . 18
Black v. Roadway Express, Inc., 297 F.3d 445 (6th Cir. 2002) . . . . . . . . . . . . . . . . . . 18
Bragdon v. Abbott, 524 U.S. 624 (1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17, 24
Braunling v. Countrywide Home Loans Inc., 220 F.3d 1154 (9th Cir.2000) . . . . . . . . 44
Brown v. Cox Med. Ctr., 286 F.3d 1040 (8th Cir. 2002) . . . . . . . . . . . . . . . . . . . . . . . 44
Beaumont 1996)
Brown v. Montgomery County Hosp. Dist., 929 S.W.2d 577 (Tex. App.– 34
Bultemeyer v. Fort Wayne Cmty. Schs., 100 F.3d 1281 (7th Cir. 1996) . . . . . . . 25-27, 33
Burch v. City of Nacogdoches, 174 F.3d 615 (5th Cir.1999) . . . . . . . . . . . . . . . . . . . . 30
Burch v. City of San Antonio, 518 S.W.2d 540 (Tex. 1975) . . . . . . . . . . . . . . . . . . . . . 20
iv
Butterfield v. New York State, 1998 WL 401533 (S.D.N.Y. July 15, 1998) . . . . . . . . . 18
Canteen Corp. v. Pennsylvania Human Relations Com'n, 814 A.2d 805 (Pa. Commw. Ct.
2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Carbaugh v. Pangborn Corp., 2001 WL 121769 (D. Md. Feb. 12, 2001) . . . . . . . . . . 15
Carter v. Casa Central, 849 F.2d 1048 (7th Cir. 1988) . . . . . . . . . . . . . . . . . . . . . . . . 21
Carter v. Northwest Airlines, Inc., 2003 WL 403131 (N.D. Ill. Feb. 20, 2003) . . . . . . 43
Casas v. Mitsubishi Caterpillar, 2006 WL 2792901 (S.D. Tex. 2006) . . . . . . . . . . . . 29
Casso v. Brand, 776 S.W.2d 551 (Tex.1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Chevron Corp. v. Redmon, 745 S.W.2d 314 (Tex.1987) . . . . . . . . . . . . . . . . . . . . . . . 14
Chiari v. City of League City, 920 F.2d 311 (5th Cir. 1991) . . . . . . . . . . . . . . . . . . . . 33
Cleveland v. Prairie State College, 208 F. Supp. 2d 967 (N.D. Ill. 2002) . . . . . . . . . . 26
Coastal Mart, Inc. v. Hernandez, 76 S.W.3d 691 (Tex. App.– Corpus Christi 2002, pet.
d
dism’ by agr.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Dahill v. Police Department of Boston, 748 N.E.2d 956 (Mass. 2001) . . . . . . . . . . . . 23
Dartt v. Browning-Ferris Industries, Inc., 691 N.E.2d 526 (Mass. 1998) . . . . . . . . . . 23
Daugherty v. City of El Paso, 56 F.3d 695 (5th Cir. 1995) . . . . . . . . . . . . . . . . . . . . . 32
Davidson v. America Online, Inc., 337 F.3d 1179 (10th Cir. 2003) . . . . . . . . . . . . 27, 28
de la Torres v. Bolger, 781 F.2d 1134 (5th Cir. 1986) . . . . . . . . . . . . . . . . . . . . . . . . . 21
Deghand v. Wal-Mart Stores, Inc., 926 F. Supp. 1002 (D. Kan. 1996) . . . . . . . . . . . . 48
Dicino v. Aetna U.S. Healthcare, 2003 WL 21501818 (D.N.J. June 23, 2003) . . . . . . 18
Dixon v. Albemarle Corp., 2005 WL 1503470 (S.D. Tex. 2005) . . . . . . . . . . . . . . . . . 28
Dose v. Buena Vista Univ., 229 F. Supp. 2d 910 (N.D. Iowa 2002) . . . . . . . . . . . . . . 18
v
Dudley v. Dallas Independent School Dist., 2001 WL 123673 (N.D. Tex. 2001) . . . . 33
EEOC v. R.J. Gallagher Co., 181 F.3d 645 (5th Cir. 1999) . . . . . . . . . . . . . . . . . . . . . 17
EEOC v. United Parcel Service, Inc., 306 F.3d 794 (9th Cir.) . . . . . . . . . . . . . . . . 22, 43
Emory v. AstraZeneca Pharmaceuticals LP, 401 F.3d 174 (3d Cir. 2005) . . . . . . . . . . 43
Faruki v. Parsons S.I.P., Inc., 123 F.3d 315 (5th Cir.1997) . . . . . . . . . . . . . . . . . . . . 34
Fenney v. Dakota, Minnesota & Eastern R. Co., 327 F.3d 707 (8th Cir. 2003)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25, 26
Finical v. Collections Unlimited, Inc., 65 F. Supp. 2d 1032 (D. Ariz. 1999) . . . . . 14, 43
Fjellestad v. Pizza Hut of America, Inc., 188 F. 3d 944 (8th Cir. 1999) . . . . . . . . . . . . 47
s
Fornes v. Osceola County Sheriff’Office, 2005 WL 2012285 (M.D. Fla. Aug. 17, 2005)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Francis v. Potter, 2003 WL 22016947 (N. D. Tex. 2003) . . . . . . . . . . . . . . . . . . . . . . 33
Gagliardo v. Connaught Laboratories, Inc., 311 F.3d 565 (3d Cir. 2002) . . . . . . . . . . 44
Gile v. United Airlines, Inc., 213 F.3d 365 (7th Cir. 2000) . . . . . . . . . . . . . . . . . . . . . 32
Gile v. United Airlines, Inc., 95 F.3d 492 (7th Cir. 1996) . . . . . . . . . . . . . . . . . . . . . . 32
Gillen v. Fallon Ambulance Service, Inc., 283 F.3d 11 (1st Cir. 2002) . . . . . . . . . 43, 47
Gold v. Exxon Corp., 960 S.W.2d 378 (Tex. App.– Houston [14th Dist.] 1998, no pet.)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Gribben v. United Parcel Serv., Inc., 2006 WL 616645 (D. Ariz. 2006) . . . . . . . . . . . 17
Corpus Christi, 2002) . 17, 49
Haggar Apparel Co. v. Leal, 100 S.W.3d 303 (Tex. App–
Hamlett v. Holcomb, 69 S.W.3d 816 (Tex. App.– Corpus Christi 2002, no pet.)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 11
Haysman v. Food Lion, Inc., 893 F. Supp. 1092 (S.D. Ga. 1995) . . . . . . . . . . . . . . . . 48
vi
Heimbach v. Riedman Corp., 175 F. Supp. 2d 1167 (D. Minn.2001) . . . . . . . . . . . . . . 44
Higgins v. New Balance Athletic Shoe, Inc., 194 F.3d 252 (1st Cir. 1999) . . . . . . . 25, 26
Hilburn v. Murata Electronics North America, Inc., 181 F.3d 1220 (11th Cir. 1999)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Hites v. Patriot Homes, Inc., 904 F. Supp. 880 (N.D. Ind. 1995) . . . . . . . . . . . . . . . . . 16
t
Huckabee v. Time Warner Entm’Co. L.P., 19 S.W.3d 413 (Tex. 2000) . . . . . . . . 11, 12
International Data Operations, Inc. v. Commission on Human Rights and Opportunities,
2001 WL 951346 (Conn. Super. July 20, 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Johnson v. Maryland, 940 F. Supp. 873 (D. Md. 1996) . . . . . . . . . . . . . . . . . . . . . . . . 46
Junior v. Texaco, Inc., 688 F.2d 377 (5th Cir. 1982) . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Khan v. United Recovery Sus., Inc., 2005 WL 469603 (S.D. Tex. 2005) . . . . . . . . . . . 29
Corpus Christi 2005, no pet.) . . . . . . . . 28
King v. Gietz, 2005 WL 2841132 (Tex. App.–
Kriskovic v. Wal-Mart Stores, Inc., 948 F. Supp. 1355 (E.D. Wis. 1996) . . . . . . . . . . 48
Langon v. Department of Health and Human Services, 959 F.2d 1053 (D.C. Cir. 1992)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Lanni v. City of Philadelphia, 2002 WL 1160758 (E.D. Pa. May 30, 2002) . . . . . . . . 15
Lear Siegler, Inc. v. Perez, 819 S.W.2d 470 (Tex. 1991) . . . . . . . . . . . . . . . . . . . . . . . 11
Little v. Texas Dept. of Criminal Justice, 148 S.W.3d 374 (Tex. 2004) . . . . . . . . . . 2, 14,
20, 42, 45, 47
s
Lowe v. Angelo’Italian Foods, Inc., 87 F.3d 1170 (10th Cir. 1996) . . . . . . . . . . . . . 44
M. D. Anderson Hosp. and Tumor Institute v. Willrich, 28 S.W.3d 22 (Tex. 2000)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Marine v. H. J. Mohr & Sons, Co., 2005 WL 2293673 (N.D. Ill. 2005) . . . . . . . . . . . 18
Marshall v. Federal Exp. Corp., 130 F.3d 1095 (D.C. Cir. 1997) . . . . . . . . . . . . . . . . 33
vii
McBride v. Clayton, 166 S.W.2d 125 (Tex. Comm’ App. 1942, opinion adopted) n
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17, 20
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817 (1973) . . . . . . passim
McIntyre v. Kroger Co., 863 F. Supp. 355 (N.D. Tex.1994) . . . . . . . . . . . . . . . . . . . . 19
McKey v. Occidental Chemical Corp., 956 F. Supp. 1313 (S.D. Tex. 1997) . . . . . . . . 16
Mercado Rivera v. Loctite Puerto Rico, Inc., 222 F. Supp. 2d 136 (D.P.R. 2002)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
Middleton v. Ball-Foster Glass Container Co., 139 F. Supp. 2d 782 (N.D. Tex. 2001)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Miller v. Airborne Express, 1999 WL 47242 (N.D. Tex. 1999) . . . . . . . . . . . . . . . . . . 29
Monette v. Electronic Data Systems Corp., 90 F.3d 1173 (6th Cir. 1996) . . . . . . . 25, 26
Morrison v. Pinkerton Inc., 7 S.W.3d 851 (Tex. App.– Houston [1st Dist.] 1999, no pet.)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 9, 16, 17
Nawrot v. CPC Intern., 259 F. Supp. 2d 716 (N.D. Ill. 2003) . . . . . . . . . . . . . . . . . . . 33
Nighswander v. Henderson, 172 F. Supp. 2d 951 (N.D. Ohio 2001) . . . . . . . . . . . . . . 26
Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546 (Tex. 1985) . . . . . . . . . . . . . . . . . . . 10
NME Hospitals, Inc. v. Rennels, 994 S.W.2d 142 (Tex. 1999) . . . . . . . . . . . . . . . 12, 19
Nodelman v. Gruner & Jahr USA Pub., 2000 WL 502858 (S.D.N.Y. 2000) . . . . . . . . 47
Norwood v. Litwin Engineers & Constructors, Inc., 962 S.W.2d 220 (Tex. App.– Hous.
[1st Dist.] 1998, pet. denied) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Campo v. Lab Corp. of America, 2005 WL 2708790 (W.D. Tex. 2005) . . . . . . . . . 28
O’
Palestine Contractors, Inc. v. Perkins, 386 S.W.2d 764 (Tex. 1964) . . . . . . . . . . . . . . 14
Peebles v. Potter, 354 F.3d 761 (8th Cir. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Pendleton v. Jefferson Local School Dist., 754 F. Supp. 570 (S.D. Ohio 1990) . . . . . . 21
viii
Penrod Drilling Corp. v. Williams, 868 S.W.2d 294 (Tex. 1993) . . . . . . . . . . . . . 12, 42
PGA Tour, Inc. v. Martin, 532 U.S. 661 (2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
d
Piascyk v. City of New Haven, 64 F. Supp. 2d 19 (D. Conn. 1999), aff’ in an unpublished
opinion, 216 F.3d 1072 (2nd Cir. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Pinchot v. Mahoning Cty. Sheriff's Dept., 843 N.E.2d 1238 (Ohio App. 2005) . . . . . . 16
Prewitt v. U.S. Postal Service, 662 F.2d 292 (5th Cir. 1981) . . . . . . . . . . . . . . . . . . . . 26
Primeaux v. Conoco, Inc., 961 S.W.2d 401, 404 (Tex. App.– Houston [1st Dist.] 1997, no
writ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17, 28
Prince v. Claussen, 1999 WL 152282 (10th Cir. March 22, 1999) . . . . . . . . . . . . . . . 15
Pushkin v. Regents of University of Colorado, 658 F.2d 1372 (10th Cir. 1981) . . . . . . 21
Ransom v. State of Arizona Bd. of Regents, 983 F. Supp. 895 (D. Ariz. 1997)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Rayha v. United Parcel Service, 940 F. Supp. 1066 (S.D. Tex. 1996) . . . . . . . . . . . . . 33
Real v. City of Compton, 87 Cal. Rptr .2d 531 (Cal. Ct. App. 1999) . . . . . . . . . . . . . . 13
Rhoads v. FD.I.C., 257 F.3d 373 (4th Cir.2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Riebe v. E-Z Serve Convenience Stores, Inc., 2000 WL 1566516 (S.D. Ala. Sep. 29, 2000)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Rouillard v. Potter, 2003 WL 21026814 (D. Minn. 2003) . . . . . . . . . . . . . . . . . . . . . . 32
Russo v. Smith Intern, 93 S.W.3d 428 (Tex. App.– Houston [14th Dist.] 2002, pet. den.)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
School Bd. of Nassau County, Fla. v. Arline, 480 U.S. 273 (1987) . . . . . . . . . . . . 20, 21
Scott v. Estes, 60 F. Supp. 2d 1260 (M.D. Ala. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . 45
Sheppard v. Great Springs Waters of America, 1998 WL 154545 (N.D. Tex. 1998)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
ix
Smith v. Barton, 914 F.2d 1330 (9th Cir. 1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Smith v. Midland Brake, Inc., 180 F.3d 1154 (10th Cir. 1999) . . . . . . . . . . . . . . . . . . 32
n
Smith v. Texas Co., 53 S.W.2d 774 (Tex. Comm’ App.1932, holding approved) . 17, 20
Smith v. United Parcel Service, 50 F. Supp. 2d 649 (S.D. Tex. 1999) . . . . . . . . . . . . . 33
Spears v. Delphi Automotive Systems Corp., 2002 WL 1880756, at *9 (S.D. Ind. Aug. 15,
2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
97,
Stone v. City of Mt. Vernon, 118 F.3d. 92, 96– cert. den., 522 U.S. 1112 (1998) . . 26
s
Stone v. St. Joseph’Hosp. of Parkersburg, 538 S.E.2d 389 (W.Va. 2000) . . . . . . . . . 23
Sutton v. United Airlines, 527 U.S. 471 (1999) . . . . . . . . . . . . . . . . . . . . . 3, 9, 13-16, 18
s
Switala v. Schwan’Sales Enterprise, 231 F. Supp. 2d 672 (N.D. Ohio 2002) . . . . . . 47
Taylor v. Phoenixville School Dist., 113 F. Supp. 2d 770 (E.D. Pa. 2000) . . . . . . . . . . 26
Teahan v. Metro-North Commuter R. Co., 951 F.2d 511 (2d Cir. 1991) . . . . . . . . . . . 25
Testerman v. Chrysler Corp., 1997 WL 820934 (D. Del. Dec. 30, 1997) . . . . . . . . . . 47
Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248 (1981) . . . . . . . . . . . . . . 26
Texas Dept. of Human Services of State of Tex. v. Hinds, 904 S.W.2d 629 (Tex.1995)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Thomas v. Clayton Williams Energy, 2 S.W.3d 734 (Tex. App.– Houston [14th Dist.] 1999,
no pet.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Thompson v. Cargo Master, 2001 WL 313956 (N.D. Tex. 2001) . . . . . . . . . . . . . . . . 44
Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184 (2002) . . . . . . . . . . 14, 20, 22-24
Triton Oil & Gas Corp. v. Marine Contractors & Supp., Inc., 644 S.W.2d 443 (Tex. 1982)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Tzoumis v. Tempel Steel Co., 1999 WL 1101257 (N.D. Ill. Dec. 1, 1999) . . . . . . . . . . 50
x
US Airways, Inc. v. Barnett, 535 U.S. 391 (2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Vaughnes v. United Parcel Service, Inc., 2000 WL 1145400 (S.D.N.Y. Aug. 14, 2000)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
White v. University of Massachusetts at Boston, 574 N.E.2d 356 (Mass. 1991) . . . . . . 23
Williams v. Avnet, Inc., 520 U.S. 1240 (1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25, 27
Williams v. Channel Master Satellite Systems, Inc., 101 F.3d 346 (4th Cir. 1996)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25, 27
Williams v. Corpus Christi Independent School Dist., 2006 WL 2022502 (Tex. App.– Corpus
Christi 2006, rule 53.7(f) motion granted) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Williams v. Philadelphia Housing Authority Police Dept., 380 F.3d 751 (3d Cir. 2004)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Wiltshire v. Humpal Physical Therapy, 2005 WL 2091092 (Tex. App.– Corpus Christi 2005,
no pet.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Wynn v. Whitney Holding Corporation, 22 F. Supp. 2d 582 (M.D. La. 2002) . . . . . . . 44
Young v. Central Square Cent. School Dist., 213 F. Supp. 2d 202 (N.D.N.Y. 2002)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Zapata County Appraisal Dist. v. Coastal Oil and Gas Corp., 90 S.W.3d 847 (Tex.
San
App.– Antonio 2002, rev. den.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
STATUTES
42 U.S.C. § 12101(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
42 U.S.C. § 12102(2)(A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
42 U.S.C. § 12111(9)(B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
42 U.S.C. § 12112(d)(2)(A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 26
42 U.S.C. § 12201(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
xi
Tex. Gov. Code § 22.001(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Tex. Human Resources Code § 121.001 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Tex. Lab. Code Ann. § 21.002(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
Tex. Lab. Code § 21.001 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 19
Tex. Lab. Code, Chapter 21 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim
Tex. Labor Code § 21.051 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Tex. Labor Code § 21.105 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Tex. Labor Code § 21.128 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Tex. R. Civ. Proc. 166a . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 11, 33
REGULATIONS
29 C.F.R. Part 1630 App., § 1630.2(i) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17, 18, 22
29 C.F.R. Pt. 1630 App § 1630.2(j) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48, 50
29 C.F.R. § 1630.2(j)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
29 C.F.R. § 1630.2(j)(3)(i) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
OTHER AUTHORITIES
EEOC Compliance Manual § 902.4(e), http://www.eeoc.gov/policy/docs/902cm.html;
Questions & Answers About Persons with Intellectual Disabilities in the Workplace and the
Americans with Disabilities Act, Question 1 (second example) (EEOC Oct. 20, 2004),
http://www.eeoc.gov/facts/intellectual_disabilities.html . . . . . . . . . . . . . . . . . . . . . . . 48
EEOC Compliance Manual § § 9 0 2 . 4 ( c ) a n d 902. 8(f) (similar),
http://www.eeoc.gov/policy/docs/902cm.html . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
EEOC Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the
Americans with Disabilities Act, Question 29, and n.90 (Oct. 2002, Revised), online at
http://www.eeoc.gov/policy/docs/accommodation.html . . . . . . . . . . . . . . . . . . . . . . . . 32
xii
Questions & Answers About Persons with Intellectual Disabilities in the Workplace and the
Americans with Disabilities Act, Question 1 (second example) (EEOC Oct. 20, 2004),
http://www.eeoc.gov/facts/intelletcual_disabilities.html . . . . . . . . . . . . . . . . . . . . . . . 48
“Who Gets MS?” (National MS Society Aug. 12, 2005), http://www.nationalms
society.org/Who%20gets%20MS.asp . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
xiii
NO. 06-0318
___________________________________________________________
IN THE
SUPREME COURT
OF TEXAS
___________________________________________________________
CITY OF GRAPEVINE,
Petitioner
V.
JAMES B. DAVIS,
Respondent
___________________________________________________________
On Petition for Review from the
Court of Appeals Second District
Forth Worth, Texas
___________________________________________________________
S
RESPONDENT’ BRIEF ON THE MERITS
___________________________________________
TO THE HONORABLE SUPREME COURT OF TEXAS:
Respondent James B. Davis respectfully presents this brief on the merits. Respondent
s
asks that the City of Grapevine’Petition for Review be denied. In the event the petition is
granted, Davis requests that the Court consider his cross points, and grant such relief under
them as may be appropriate.
1
STATEMENT OF THE CASE
s
Respondent agrees with Petitioner’Statement of the Case, but would add that this
case involves a “
traditional”summary judgment motion, not a “ evidence”
no motion.
STATEMENT OF JURISDICTION (Contested)
Petitioner seeks review based on the alleged importance of the legal issues involved
and on a supposed conflict in the case law. Tex. Gov. Code § 22.001(a)(2) and (6). Neither
jurisdictional basis is present in this case. In the seventeen years since the Texas legislature
adopted the current definition of disability,1 the issue of running as a major life activity has
been decided only once, and the opinion below is fully consistent with the holding in that
Houston [1st Dist.] 1999,
case, Morrison v. Pinkerton Inc., 7 S.W.3d 851, 856 (Tex. App.–
no pet.) (running is a major life activity under Texas law). The very lack of a § 22.001(a)(2)
conflict underscores the fact that this issue is simply not weighty enough to require this
s
Court’ attention. One other case has held consistently, and no Texas case has held to the
contrary.
Finally, although not directly part of the § 22.001(a)(2) comparison,2 the holding
below is exactly consistent with the analysis of the only federal Supreme Court case to
1
The relevant history of the definition is set out in Little v. Texas Dept. of Criminal Justice,
377
148 S.W.3d 374, 376– (Tex. 2004).
2
In its jurisdictional statement Petitioner cites two cases standing for the proposition that in
interpreting federal law, the Supremacy Clause requires Texas courts to conform to decisions by the
U.S. Supreme Court. This is not such a case, of course, involving instead a question of Texas law.
In any event, the Court below was consistent with U.S. Supreme Court authority.
2
address the issue of running under the ADA, Sutton v. United Airlines, 527 U.S. 471 (1999),
and is also consistent with the ADA analysis by several other courts.
Similarly, there is no conflicting authority on the applicability of the McDonnell
Douglas burden-shifting formula. Petitioner cites Texas appellate case law holding that this
formula applies to discrimination cases under Chapter 21 of the Texas Labor Code, including
cases involving disability discrimination. Respondent does not contest that general
proposition, nor did the Court below. But Petitioner fails to cite a single failure-to-
accommodate case in which the court applied the burden-shifting formula. The great weight
of authority, fully supported by both logic and policy, holds that the McDonnell Douglas
burden-shifting test does not apply to a failure to accommodate claim.
For these reasons and for those discussed below, this Court should deny review.
ISSUES PRESENTED
1. Is running a major life activity within the meaning of Chapter 21 of the Texas
Labor Code?
2. Does the McDonnell Douglas burden-shifting test apply to a failure-to-
accommodate claim in a disability discrimination case?
3. Was Davis provided a reasonable accommodation by the City?
4. Did Davis suffer from an adverse employment action?
5. [In the event review is granted] Did the City conclusively negate the possibility
that Davis was substantially limited in walking?
6. [In the event review is granted] Did the City conclusively negate the possibility
that Davis was substantially limited in the major life activities of lifting, climbing stairs,
and working? (These issues were not considered by the Court of Appeals, although
raised by Davis in his brief.)
3
STATEMENT OF FACTS
Davis, who had been employed by the City of Grapevine as a firefighter/paramedic
since 1997, was diagnosed with multiple sclerosis in mid-2001, and by the spring of 2002
it had progressed to the point he could no longer perform all the duties of his position.
(Davis Aff., at R. 132; Davis Dep., Ex. 21, R. at 273.) His doctor, Susan Blue, sent letters
to his supervisor, Grapevine Fire Chief David Anderson, indicating he could not consistently
climb ladders or drive emergency vehicles. The letters also indicated he would have a
problem in terms of balance, rapid response ability, coordination, and episodic numbness in
133; 302,
his arms and legs. (Davis Aff., R. at 132– Anderson Dep., Ex. 3 and 5, R. at 300–
517.)
426, 430; Dr. Blue Dep., Ex. 4 & 5, R. at 514–
s
Dr. Blue testified in her deposition that these problems were related to Davis’
25, 494.) Davis had other symptoms as
multiple sclerosis. (Dr. Blue Dep., 10– R. at 490–
well, including a lack of balance and coordination, urinary retention, lack of fine motor
skills, numbness and tingling in his right hand and in his legs, flashes of blue light in his left
eye, a tendency to limp, and difficulty in lifting objects. When he walks fast or tries to run,
he falls down. (Davis Dep. 31, R. at 171.) With regard to lifting, while he can occasionally
lift objects of up to 50 pounds in weight, he cannot repetitively lift objects that weight 40 to
50 pounds. Dr. Blue has testified that all these conditions are consistent with his diagnosis
25, 494.) When he climbs stairs, he
of multiple sclerosis. (Dr. Blue Dep. 10– R. at 490–
frequently has to use the handrail to keep his balance. He had all the above-described
4
symptoms and conditions in the spring of 2002, when the City of Grapevine forced him to
resign from his position as a firefighter/paramedic. (Davis Aff. 2, R. at 133.)
Due to his multiple sclerosis, Davis was and is a person with a disability in that he
suffers from physical impairments that substantially limit his major life activities of walking,
running, lifting, climbing stairs, driving a vehicle, performing manual tasks, and working
in jobs requiring balance and coordination. However, he remains qualified for a wide range
of jobs with or without reasonable accommodation. (Davis Aff. 2, R at 133.)
Prior to being forced to resign, Davis sought reasonable accommodation. On or
about April 22, 2002, he met with two of his superiors with the City of Grapevine—Fire
s
Chief David Anderson, and Carolyn Sue Van Duzee, the City’ Personnel Director—to
discuss the effect of his multiple sclerosis on his ability to work as a firefighter/paramedic.
They had received letters from his doctor indicating that he was no longer able to perform
all the duties of a firefighter/paramedic due to the effect of multiple sclerosis on his
coordination and balance. (Anderson Dep., Ex. 3 &5, R. at 426, 430; Dr. Blue Dep., Ex. 4
s
& 5, R. at 514, 517.) A transcript of this meeting is attached as Exhibit A to Davis’
154.)
affidavit. (Davis Aff. 3, R. at 134, 141–
Anderson and Van Duzee told Davis that he could no longer work as a
firefighter/paramedic. They refused to reassign him to another position and refused to offer
any other accommodation. Ms. Van Duzee told him he should consider resigning so his
employment record would not show that he had been terminated from his job. Ms. Van
Duzee said he could apply for another job with the City, but that he would be treated like any
5
other applicant and would not receive a preference in hiring. (Davis Aff., Tr.of meeting, Ex.
154.)
A, R. at 143–
On April 29, 2002, Davis applied for a telecommunications position with the City of
s
Grapevine. In June, 2002, Sandy Ferris, interviewing him for the position on the City’
behalf as part of a committee, inquired about his multiple sclerosis and how it would affect
his ability to do the job. According to Ms. Ferris, there were more than 20 applicants, and
20 9, 477;
she interviewed 15– of them for the job. (Ferris Dep., 7– R. at 475– Atkinson Dep.
8, R. at 460.) Davis knew that at the pre-employment interview stage, a prospective
employer is prohibited by the Americans with Disabilities Act from referencing whether a
prospective employee has a disability.3 He was not well-acquainted with Sandy Ferris and
he knew she must have gotten information about his multiple sclerosis from someone in the
Fire Department. This unlawful inquiry, along with the fact Ms. Van Duzee had told Davis
he would not receive preferential treatment for the job, and the fact that there were numerous
other applicants for the job, all reasonably led him to believe he would not receive fair
treatment in the application process, or favorable consideration for the job. All the while his
impending termination was hanging over his head. When he was able to obtain a real job
offer from another employer, even though its benefit package was substantially lower, he had
no reasonable choice but to withdraw his application with the City (about which he had
3
42 U.S.C. § 12112(d)(2)(A) provides in part, with regard to preemployment inquiries, that
“ covered entity shall not conduct a medical examination or make inquiries of a job applicant as to
a
whether such applicant is an individual with a disability or as to the nature or severity of such
disability.”Although this case is brought under Chapter 21 of the Texas Labor Code rather than the
s
ADA, this ADA provision applied at the time of Davis’interview to protect him from inquiries into
the nature or severity of his disability.
6
5, 136.) Of course, Davis had an
heard nothing) and take it. (Davis Aff., 3– R. at 134–
obligation to mitigate his damages;4 one can be certain the City would have alleged a failure
to mitigate had Davis not taken the alternate employment.
Davis resigned from his position as a firefighter/paramedic on or about June 14, 2002.
At that time, he had been told by Chief Anderson and Personnel Director Van Duzee that he
could no longer work as a firefighter/paramedic, and he had not been offered the
telecommunications job or any other job with the City of Grapevine. With regard to the
telecommunications job, Ms. Van Duzee had told him he would not be entitled to any
preference against other applicants. He had not seen the letter of recommendation written by
Chief Anderson, and did not know it had been written. In fact, he did not see it until his
deposition was taken on July 28, 2004. (Davis Aff., 4, R at. 135; Davis Dep., 96, R. at 189.)
Davis also believed Sandy Ferris had asked him unlawful questions about his disability in
interviewing him for the job. (Davis Aff, 4, R. at 135.)
s
The extent of Davis’employment rights at that time was to continue drawing benefits
for a limited time, but he was not entitled to those because he had obtained another job
working for Baylor Medical Center. That is why he resigned from the City of Grapevine on
or about June 15, 2002. He would not have resigned if the City had allowed him to keep the
firefighter/paramedic job with proper accommodations, or had offered him a suitable
5, 136.)
alternate position with the City. (Davis Aff., 4– R. at 135–
4
See, e.g., Coastal Mart, Inc. v. Hernandez, 76 S.W.3d 691, 698 (Tex. App.–Corpus Christi
d A
2002, pet. dism’ by agr.) (“ wrongfully discharged employee has a duty to mitigate damages by
making a good faith effort to obtain and retain employment.”).
7
The City appears to suggest that Davis might have gotten the telecommunications job
because he would have been entitled to preference in hiring, but the summary judgment
evidence is exactly contrary—Davis was told that he would not receive a preference, and the
s
City’ own policy was to the same effect. The City policy gives preference to present
employees for promotions and transfers only; the job Davis applied for in
5, 136;
telecommunications was neither, so no preference applied. (Davis Aff., 4– R. at 135–
Anderson Dep., 34, 35, R. at 323, 324 ; Ex. 11, R. at 444; Davis Dep., 99, R. at 190; Ex. 17,
R. at 263.)
In his deposition, Chief Anderson testified that Davis was never offered another
position (Anderson Dep., 24, R. at 313), that he would have had to terminate Davis from his
firefighter/paramedic job if he had not resigned (R. at 314), that Davis was never offered the
telecommunications job (R. at 315), that the possibility of a lateral transfer to the
telecommunications job was never discussed with the City Manager (as would have been
required) (R. at 319), that the telecommunications job would have been neither a promotion
s
nor a transfer within the meaning of the City’policy of giving preference to city employees
for promotions and transfers (R. at 323, 324), and that Davis was never offered any job after
being told he could no longer work as a firefighter/paramedic. (R. at 325.)
SUMMARY OF THE ARGUMENT
In Sutton v. United Airlines, 527 U.S., 471, 488 (1999), the United States Supreme
Court used running as an example of a major life activity. While dicta, the holding is
8
persuasive because it was used to illustrate the limits of the Sutton decision and was therefore
intended to have precedential value. Although a very few federal district courts have held
running is not a major life activity, those cases are analytically weak, other cases have held
to the contrary, and the only other Texas state court case dealing with the issue holds that
running is a major life activity. Morrison v. Pinkerton Inc., 7 S.W.3d 851, 856 (Tex.
Houston [1st Dist.] 1999, no pet.). The Court of Appeals correctly held that running
App.–
is a major life activity.
According to the City, the lower court held that the McDonnell Douglas burden-
shifting test is inapplicable to any claim under Chapter 21 of the Texas Labor Code. The
opinion does not so hold. Instead, the Court of Appeals correctly held, in accordance with
the vast majority of other courts to consider the issue, that the McDonnell Douglas burden-
shifting test does not apply to a failure-to-accommodate claim in a disability discrimination
case. Not one of the cases cited by the City involves that issue.
Davis was not provided a reasonable accommodation by the City. All it offered him
was the opportunity to apply for a job along with other applicants. As a matter of law,
allowing a person with a disability to simply apply for a job offers nothing, and is not an
accommodation.
Because the City gave Davis a “ or be fired”ultimatum, his resignation also
quit
amounted to a constructive discharge. The testimony of city officials makes it plain that, at
the time he resigned, his retention of employment was not an option, and he would have been
terminated had he not resigned.
9
The Court of Appeals erred in holding as a matter of law that Davis was not
substantially limited in the major life activity of walking. His testimony, and the testimony
and records of his doctor, raise a fact issue as to that.
The Court of Appeals also failed to consider the issues raised by Davis in his brief
regarding whether he was substantially limited in the major life activities of lifting, climbing
stairs, and working; the record contains sufficient evidence to raise fact issues for the jury.
ARGUMENT AND AUTHORITIES
s
Petitioner’Burden of Proof
The Petitioner sought a traditional motion for summary judgment under Tex. R. Civ.
Proc. 166a. (Def’Mot., R. at 26) “ a traditional summary judgment, the movant has the
s In
burden of showing that there is no genuine issue of material fact and that it is entitled to
819
judgment as a matter of law.” Hamlett v. Holcomb, 69 S.W.3d 816, 818– (Tex.
Corpus Christi 2002, no pet.). Furthermore, the trial court must assume that all the
App.–
s 549
non-movant’proof is true, Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548– (Tex.
1985); indulge every reasonable inference in favor of the non-movant, id. at 549; and resolve
all doubts about the existence of a genuine issue of a material fact against the movant, id. at
549. See also Rule 166a(c); Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 471 (Tex.
548–
To
1991) (“ be entitled to summary judgment, [Defendant] had the burden to establish that
);
there existed no genuine issue of fact thereby entitling it to judgment as a matter of law.”
819 In
Hamlett, supra, 69 S.W.3d at 818– (“ deciding whether there is a disputed material fact
issue precluding summary judgment, evidence favorable to the nonmovant will be taken as
10
true. Every reasonable inference must be indulged in favor of the nonmovant, and any
)
doubts must be resolved in favor of the nonmovant.” (citations omitted).
In Casso v. Brand, 776 S.W.2d 551 (Tex. 1989), this Court recognized the difference
between a “
traditional”Texas summary judgment and federal summary judgment procedure.
The Court stated:
While the language of our rule is similar, our interpretation of that language
is not. We use summary judgments merely to eliminate patently unmeritorious
claims and untenable defenses, and we never shift the burden of proof to the
non-movant unless and until the movant has established his entitlement to a
summary judgment on the issues expressly presented to the trial court by
conclusively proving all essential elements of his cause of action or defense
as a matter of law.
Id. at 556 (internal quotes and parentheses omitted). Another difference is that “
Texas law
has always emphasized that trial courts must not weigh the evidence at the summary
Huckabee v. Time Warner Entm’Co. L.P., 19 S.W.3d 413, 422 (Tex.
judgment stage.” t
2000). Although the recent adoption of the “
no-evidence”summary judgment as an alternate
procedure in Texas obviates, to some extent, the differences in summary judgment procedure
between the two systems, Huckabee, supra, 19 S.W.3d at 421, the motion filed in this case
was clearly not a “ evidence”
no motion.
In a “
traditional”summary judgment motion, the defendant as movant has the burden
of showing that there is no genuine issue of material fact and that it is entitled to judgment
as a matter of law. American Tobacco Co. v. Grinnell, 951 S.W.2d 420, 425 (Tex.1997).
“
[U]nder our traditional summary judgment procedure, defendants can obtain summary
s
judgment only if they conclusively negate one of the elements of the plaintiff’ claim.”
11
Huckabee, supra, 19 S.W.3d at 420. An issue is conclusively established only if the
evidence is such that there is no room for ordinary minds to differ as to the conclusion to be
drawn from it. Triton Oil & Gas Corp. v. Marine Contractors & Supp., Inc., 644 S.W.2d
443, 446 (Tex. 1982).
Applicable Law
Because one purpose of Chapter 21 of the Texas Labor Code is to execute the policies
embodied in Title I of the Americans with Disabilities Act, Texas courts may look to federal
precedent for interpretation of Chapter 21. Tex. Lab. Code § 21.001(3); NME Hospitals, Inc.
v. Rennels, 994 S.W.2d 142, 144 (Tex. 1999).
However, federal precedent is not binding on Texas courts. “
While Texas courts may
certainly draw upon the precedents of the Fifth Circuit, or any other federal or state court,
in determining the appropriate federal rule of decision, they are obligated to follow only
higher Texas courts and the United States Supreme Court.” Penrod Drilling Corp. v.
Williams, 868 S.W.2d 294, 296 (Tex. 1993) (emphasis in original; citations omitted). In
interpreting purely state law claims, a Texas court does not have to follow federal precedent,
even including precedent from the U.S. Supreme Court, and is free to accept or reject
precedent from the federal circuit courts, including that from the Fifth Circuit. Of course,
in addition to considering federal precedent, a Texas court interpreting Chapter 21 may also
consider precedent from other state jurisdictions involving similar laws.
Running Is A Major Life Activity Under Texas Law
12
Davis is substantially limited in running; he cannot run without falling down. Thus,
he has a disability under Chapter 21 if running is a major life activity. The Court of Appeals
s
held that it was, and contrary to Petitioner’argument, this holding is fully supported by U.S.
Supreme Court precedent. In Sutton v. United Air Lines, 527 U.S. 471 (1999), the majority
s
expressly rejected the dissent’ fear that the case would be read as excluding those with
prosthetic limbs from coverage, stating “
individuals who use prosthetic limbs . . . may be
mobile and capable of functioning in society but still be disabled because of a substantial
limitation on their ability to walk or run.”Id. 488 (emphasis added).
This language was intended to prevent an otherwise harsh and illogical result, and
many courts have quoted and relied upon it,5 including this Court. Little v. Texas Dept. of
Criminal Justice, 148 S.W.3d 374, 382– (Tex. 2004).6
383
The City cites Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184, 197 (2002) as
supporting its contention that running is not a major life activity. That case does not so hold.
In fact, it does not mention running at all. Instead, its holding relates only to circumstances
5
See, e.g., Bartlett v. New York State Bd. of Law Examiners, 2001 WL 930792, at *31
(S.D.N.Y. Aug. 15, 2001); Finical v. Collections Unlimited, Inc., 65 F. Supp. 2d 1032, 1039 (D.
Ariz. 1999); Real v. City of Compton, 87 Cal. Rptr .2d 531, 541 (Cal. Ct. App. 1999).
6
s s
Although the City’ citations to this Court’opinion in Chevron Corp. v. Redmon, 745
S.W.2d 314 (Tex.1987) is inapposite because that case interpreted an earlier statute with a different
definition of disability, see Little, supra, 148 S.W.3d at 376, the instant case is also fully consistent
s
with Redmon; Davis’inability to walk fast or run without falling down surely places him within the
category of person with physical impairments that are “ s
serious enough to affect a person’. . . ability
to cross the street.”Redmon, supra, 745 S.W.2d at 317.
13
in which “
performing manual tasks”constitutes a major life activity. The City thus argues
that Texas courts should be bound by language in Toyota that has nothing to do with running,
but are not bound by language in Sutton that states clearly that running is a major life
activity.
The City also criticizes the Sutton language as dicta,7 but the “
precedential value of
dictum depend[s] on how it is classified, obiter dictum or judicial dictum.”Zapata County
San
Appraisal Dist. v. Coastal Oil and Gas Corp., 90 S.W.3d 847, 853 (Tex. App.– Antonio
2002, rev. den.), citing Palestine Contractors, Inc. v. Perkins, 386 S.W.2d 764, 774 (Tex.
1964). “
Judicial dictum, a statement by the supreme court made very deliberately after
mature consideration and for future guidance in the conduct of litigation is ‘ least
at
”Id. The Sutton language
persuasive and should be followed unless found to be erroneous.’
falls in the category of judicial dicta, since it was made deliberately after mature
s s
consideration to meet the dissent’objection to the majority’opinion. It clearly was and is
intended “ future guidance in the conduct of litigation” therefore should be followed.
for and
The City’contention that “ courts almost unanimously agree that running is not
s the
is
a major life activity” simply wrong. The case law is far from unanimous, and the cases
rejecting running are in fact few, and of weak persuasive force.
On the other hand, several courts have indicated or assumed that running is a major
life activity, at least in dicta. See, e.g., Hilburn v. Murata Electronics North America, Inc.,
7
Of course, any negative language in Toyota is dicta as well, and much less directly on point.
14
Although not explicitly listed in the implementing
181 F.3d 1220, 1227 (11th Cir. 1999) (“
regulations, we will assume for the purposes of this appeal that running qualifies as a major
life activity,”noting that the “ of enumerated major life activities is not exhaustive.”
list );
Prince v. Claussen, 1999 WL 152282, at *5 (10th Cir. March 22, 1999) (unreported)
Prince maintains his impairments have implicated his ability to walk, stand, run, lift, throw,
(“
);
squat, and work. Each constitutes a major life activity under the ADA.” Lanni v. City of
Philadelphia, 2002 WL 1160758 (E.D. Pa. May 30, 2002) (referring to walking and running
as “ );
categories of major life activities” Carbaugh v. Pangborn Corp., 2001 WL 121769, at
Although employees . . . may be substantially or completely
*4 (D. Md. Feb. 12, 2001) (“
limited in their ability to walk or run, they may also be highly mobile and capable of
)
functioning in society. The ADA covers these employees.” (emphasis supplied); Riebe v.
E-Z Serve Convenience Stores, Inc., 2000 WL 1566516, at *3 (S.D. Ala. Sep. 29, 2000);
McKey v. Occidental Chemical Corp., 956 F. Supp. 1313, 1318 (S.D. Tex. 1997) (including
running in a list of major life activities); Hites v. Patriot Homes, Inc., 904 F. Supp. 880, 883
Hites’
(N.D. Ind. 1995) (“ physician, Dr. Louis Sfreddo, stated in his deposition that plaintiff
was able to stand, squat, bend, lift 100 pounds and run, all of which are major life
);
activities” Pinchot v. Mahoning Cty. Sheriff's Dept., 843 N.E.2d 1238, 1241 (Ohio App.
2005) (decided under substantially similar state law); International Data Operations, Inc.
v. Commission on Human Rights and Opportunities, 2001 WL 951346, at *2 (Conn. Super.
15
[Shulman] is substantially limited in the major life activities
July 20, 2001) (unpublished) (“
of walking and running under the [ADA and state law].” 8
).
More to the point, the only Texas court to expressly consider this issue prior to the
case at bar relied on Sutton in holding that running is a major life activity. Morrison v.
Houston [1st Dist.] 1999, no pet.) (“
Pinkerton Inc., 7 S.W.3d 851, 856 (Tex. App.– As
).
Morrison correctly argues, running and walking are major life activities.”
The EEOC guidance on point is consistent, describing major life activities as “
those
basic activities that the average person in the general population can perform with little or no
difficulty.”29 C.F.R. Part 1630 App., § 1630.2(i).9 Running is such an activity. Moreover,
the frequency with which it may be undertaken is immaterial. There is no requirement that
a major life activity be a daily activity,10 or that it be one that is undertaken by everyone.11
8
Moreover, the lack of holdings squarely on point on either side is a factor weighing against
discretionary review by this Court.
9
Texas courts frequently follow this guidance. See, e.g., Haggar Apparel Co. v. Leal, 100
S.W.3d 303, 308 (Tex. App– Corpus Christi, 2002), reversed on other grounds, 154 S.W.3d 98 (Tex.
856
2004); Morrison v. Pinkerton Inc., 7 S.W.3d 851, 855– (Tex. App.– Houston [1st Dist.] 1999,
no pet.); Norwood v. Litwin Engineers & Constructors, Inc., 962 S.W.2d 220, 224 (Tex. App.– Hous.
[1st Dist.] 1998, pet. denied); Primeaux v. Conoco, Inc., 961 S.W.2d 401, 404 (Tex. App.– Houston
[1st Dist.] 1997, no writ). Moreover, courts presume that in amending a statute, the Legislature is
aware of the interpretations of that statute. McBride v. Clayton, 166 S.W.2d 125, 128 (Tex.
n
Comm’App. 1942, opinion adopted); Smith v. Texas Co., 53 S.W.2d 774 (Tex. Comm’App.1932,n
holding approved).
10
Bragdon v. Abbott, 524 U.S. 624, 638 (1998) (“ Nothing in the definition suggests that
activities without a public, economic, or daily dimension may somehow be regarded as so
unimportant or insignificant as to fall outside the meaning of the word ‘ The
major.’ breadth of the
term confounds the attempt to limit its construction in this manner.”).
11
This is clear from the fact that working is a major life activity, 29 C.F.R. § 1630.2(I); EEOC
655
v. R.J. Gallagher Co., 181 F.3d 645, 654– (5th Cir. 1999), Haggar Apparel Co., supra, 100
16
The cases that Petitioner relies on are hardly compelling, even under federal law.
With few exceptions, they are federal district court cases. Petitioner cites one case for the
proposition that the court declined to hold that running is a major life activity, but that court
actually assumed that running was a major life activity.12 Two other cases rely on skimpy,
pre-Sutton decisions,13 including one in which the employee apparently never argued that
running was a major life activity;14 four deal not with the inability to run at all, but rather with
exercise or endurance running or jogging;15 and two deal with the effect of running on the
S.W.3d at 308, even though not everyone works every day, and many are not employed at all. See
also Bragdon v. Abbott, 524 U.S. 624 (1998) (reproduction is a major lief activity, even though not
everyone has children).
12
Gribben v. United Parcel Serv., Inc., 2006 WL 616645, at *2 n.3 (D. Ariz. 2006) (“ UPS
does not dispute whether [activities including running] are major life activities, and therefore we
assume, without deciding, that they are.”)
13
See Vaughnes v. United Parcel Service, Inc., 2000 WL 1145400 (S.D.N.Y. Aug. 14, 2000),
d
and Piascyk v. City of New Haven, 64 F. Supp. 2d 19 (D. Conn. 1999), aff’ in an unpublished
opinion, 216 F.3d 1072 (2nd Cir. 2000) (Table).
14
Both cite to Butterfield v. New York State, 1998 WL 401533, at *9 (S.D.N.Y. July 15,
1998), in which the court observed that while the list of major life activities is not exhaustive,
“plaintiff has made no argument that there are any grounds for adding ‘ ”
running’to it.”
15
Dicino v. Aetna U.S. Healthcare, 2003 WL 21501818, at *2 (D.N.J. June 23, 2003)
(referring to inability to “ 9-minute miles for periods of 30 or 45 minutes, . . . or participate in her
run
normal exercise activities, which included running 3 miles on her treadmill every morning, [and]
);
running on the beach on weekends” Barnes v. Northwest Iowa Health Center, 238 F. Supp. 2d
1053, 1073 n.7 (N.D. Iowa 2002) (“ Barnes does not argue to this court that recreational running,
bowling, golfing, and engaging in social activities are ‘ nor
major life activities,’ would such an
);
argument be meritorious.” Billings v. Taylor Royall, Inc., 2000 WL 490734, at *2 (D. Md. April
11, 2000) (plaintiff “ );
cannot . . . run . . . for longer than a few minutes.” Middleton v. Ball-Foster
Glass Container Co., 139 F. Supp. 2d 782, 793 (N.D. Tex. 2001) (“ There is no evidence that jogging
is a major life activity; many people who cannot jog are not disabled.” ).
17
major life activity of breathing, rather than running itself.16 Although Petitioner cites one
federal circuit court opinion, it does not appear to reach the issue.17
The opinion of the court below is consistent with both the only other Texas case to
consider the issue, and is also consistent with the only U.S. Supreme Court case to consider
it. That is sufficient to deny review, or if granting it, to affirm that portion of the opinion
s
below. But the lower court’opinion is also consistent with the broad interpretation accorded
Chapter 21, and with its historical context.
The Texas Legislature passed Chapter 21 (and its predecessor TCHRA) to secure for
persons with disabilities the freedom from discrimination in certain employment transactions,
in order to protect their personal dignity; make available to the state the full productive
capacities of persons in this state; and to promote the interests, rights, and privileges of
16
6
Marine v. H. J. Mohr & Sons, Co., 2005 WL 2293673, at *5– (N.D. Ill. 2005) (“ The
pivotal issue is whether Marine’asthma ‘
s his
substantially limits’ ability to breathe. . . . Being limited
in running half of a mile and profusely sweating in high temperatures do not severely restrict Marine
from activities that are of central importance to most peoples’ );
daily lives.” Dose v. Buena Vista
923
Univ., 229 F. Supp. 2d 910, 922– (N.D. Iowa 2002) (“ Dose asserts . . . that his physical
impairments substantially limit him in the major life activity of breathing. . . . [But] Dose generally
is able to perform the basic functions of breathing. . . . He is only restricted from such activities as
).
. . . running . . ..”
17
See Black v. Roadway Express, Inc., 297 F.3d 445, 450 (6th Cir. 2002) (noting that the
district court found several claimed activities were not major life activities without identifying which
ones, and expressly agreeing only with the proposition that the “ alleged inability to perform certain
tasks or functions on a repeated or prolonged basis is not enough” ).
Although not noted by Petitioner, one case that it cites, Fornes v. Osceola County Sheriff’ s
Office, 2005 WL 2012285 (M.D. Fla. Aug. 17, 2005), was affirmed on appeal in an unpublished
decision, but the circuit court expressly refused to address this issue. See 2006 WL 1208050, at *2
We
(11th Cir. May 4, 2006) (“ need not decide this issue, because even if running is a major life
activity, Fornes fails to establish the second prong, that he is a ‘qualified individual.’”).
18
persons in this state. Tex. Labor Code § 21.001(4), (5), and (8). Another underlying purpose
is that employers not discriminate against persons with disabilities for reasons other than their
ability to perform a job. McIntyre v. Kroger Co., 863 F. Supp. 355, 358 (N.D. Tex.1994).18
This Court broadly construes the TCHRA. See NME Hospitals, Inc. v. Rennels, 994
S.W.2d 142, 146 (Tex. 1999). “ a statute is curative or remedial in its nature the rule is
If
generally applied that it be given the most comprehensive and liberal construction possible.”
Burch v. City of San Antonio, 518 S.W.2d 540, 544 (Tex. 1975).
This Court also presumes that when the Legislature uses words that have previously
been used, it intends the words to carry the meaning previously given them. See McBride v.
n
Clayton, 166 S.W.2d 125, 128 (Tex. Comm’ App. 1942, opinion adopted); Smith v. Texas
n
Co., 53 S.W.2d 774 (Tex. Comm’ App.1932, holding approved). Moreover, statutes are
presumed to be enacted by the Legislature with full knowledge of, and with reference to, the
existing conditions of the law. McBride v. Clayton, supra.
In 1989 and 1993, when the TCHRA was amended to track the definition of disability
used by the federal Rehabilitation Act of 1973,19 there were several Rehabilitation Act cases
finding MS to be a disability, and Davis has found none to the contrary. In fact, only two
s
years before the Texas Legislature adopted the Rehabilitation Act’definition, the Supreme
18
s
The policies supporting the TCHRA’ predecessor statute are similar. Tex. Human
The
Resources Code § 121.001 (“ policy of the state is to encourage and enable persons with
disabilities to participate fully in the social and economic life of the state, to achieve maximum
personal independence, to become gainfully employed, and to otherwise fully enjoy and use all public
).
facilities available within the state.”
19
See Little, supra, 148 S.W.3d at 376–377.
19
Court interpreted that very provision in School Bd. of Nassau County, Fla. v. Arline, 480 U.S.
273 (1987). The Court stated that the HHS Rehabilitation Act regulations were an important
source of guidance in interpreting the law.20 The Court then observed that HHS guidance
indicated that the disability definition is a broad one,21 and that “such diseases and conditions
as . . . multiple sclerosis . . . would be covered. . ..” Arline, supra, 480 U.S. at 280 n.5
(citations and internal quote marks omitted, emphasis added).
Other contemporaneous cases finding, or assuming, that MS was a disability include
Langon v. Department of Health and Human Services, 959 F.2d 1053, 1058 (D.C. Cir. 1992)
(medical records of plaintiff with MS-related fatigue and weakness that interfered with ability
to commute were sufficient to put employer on notice of their need to consider
At
accommodation); Carter v. Casa Central, 849 F.2d 1048, 1051 (7th Cir. 1988) (“ trial,
Casa Central also conceded that Carter was a “ for
handicapped individual” purposes of the
Rehabilitation Act, and, indeed, that determination is consistent with the then-applicable
);
statutory and regulatory definitions.” de la Torres v. Bolger, 781 F.2d 1134, 1137 (5th Cir.
In
1986) (“ other section 501 and section 504 cases that focused on issues other than whether
20
The Supreme Court stated that “ determining whether a particular individual is
[i]n
handicapped as defined by the Act, the regulations promulgated by the Department of Health and
Human Services are of significant assistance. As we have previously recognized, these regulations
were drafted with the oversight and approval of Congress; they provide an important source of
280
guidance on the meaning of § 504.”Arline, supra, 480 U.S. at 279– (citations and internal quote
marks omitted). See also Toyota Motor, supra, 534 U.S. at 195 (similar).
21
The Court stated that “ [a]lthough many of the comments on the regulations when first
proposed suggested that the definition was unreasonably broad, the Department found that a broad
definition, one not limited to so-called traditional handicaps, is inherent in the statutory definition.”
Arline, supra, 480 U.S. at 280 n.5 (citations and internal quote marks omitted).
20
the plaintiff was a handicapped individual, other courts have determined, or accepted without
question, that the following mental and physical conditions constitute a “
physical or mental
impairment” );
under the Act: . . . multiple sclerosis . . .” Pushkin v. Regents of University of
Colorado, 658 F.2d 1372 (10th Cir. 1981); and Pendleton v. Jefferson Local School Dist., 754
d
F. Supp. 570 (S.D. Ohio 1990) (disability uncontested), rev’ in part on other grounds, 958
F.2d 372 (1992) (unpublished).
s
Another contemporaneous source was the EEOC’broad interpretation of the term
“ set
major life activities” out in 29 C.F.R. Part 1630 App., § 1630.2(i), and first published in
those basic activities that the average person in the
56 Fed. Reg 35734 (July 26, 1991)—“
general public can perform with little or no difficulty.” Running clearly qualifies; almost
everyone can do it, even if many of us cannot do it well, or for very long. This guidance was
s
published prior to the Texas Legislature’1993 amendment to the disability definition.
The City relies heavily on Toyota Motor Mfg. v. Williams, 534 U.S. 184 (2002), for
the propositions that the term “
major life activities”must be interpreted strictly, and includes
only those that are “
central to daily life.”The latter contention is not completely accurate
even under federal law, as some courts have restricted the application of this language to
cases (like Toyota Motor itself, and unlike the instant case) that involve the major life activity
of performing manual tasks.22 Moreover, a strict construction violates our state’well-settled
s
22
See EEOC v. United Parcel Service, Inc., 306 F.3d 794, 804 (9th Cir.), amended on other
UPS s
grounds, 311 F.3d 1132 (9th Cir. 2002) (“ and the EEOC differ on Toyota’import for this case.
s
The EEOC argues that Toyota’discussion about activities of central importance to daily life pertains
only to the major life activity of performing manual tasks. This seems correct, as far as it goes. If so,
21
principles of statutory interpretation, and it should be rejected here because that dicta in
Toyota Motor is based on statutory language in the ADA that is not present in Chapter 21.
s
Toyota Motor’ notion of a strict construction was based on language in the ADA
stating that only 43 million Americans have disabilities. Toyota Motor, supra, 534 U.S. at
197, citing 42 U.S.C. § 12101(a)(1).23 There is no similar language in Chapter 21, nor any
numerical limit at all. At least one state supreme court has rejected interpreting its state law
in lock-step with federal law based in part on this same distinction. Dahill v. Police
Department of Boston, 748 N.E.2d 956, 963 (Mass. 2001).24 Of course, the ADA itself
confirms that state law may provide more protection than the ADA does. See 42 U.S.C. §
12201(b) (prohibiting any ADA interpretation that would limit state laws providing greater
s
protection). Because the Toyota Motor analysis contradicts this Court’past interpretations
then it does not follow that substantiality of a vision impairment must be assessed by how severely
it restricts the individual from doing activities of central importance to daily life—as UPS would like
us to read the opinion.” ).
23
The court suggested that if Congress had intended broader coverage, the number of persons
with disabilities would have had to be much higher. Of course, there is no inconsistency between the
400,000 people with MS and the 43 million figure. See “ Who Gets MS?” (National MS Society Aug.
12, 2005), http://www.nationalmssociety.org/Who%20gets%20MS.asp.
24
Dahill is analogous to the instant case because the statutory definition of disability at issue
in that case was essentially identical to that in the Chapter 21, 748 N.E.2d at 959 n.6, and because
s
that state’case law generally follows federal precedent. White v. University of Massachusetts at
Boston, 574 N.E.2d 356, 358 (Mass. 1991); Dartt v. Browning-Ferris Industries, Inc., 691 N.E.2d
We
526, 532 (Mass. 1998) (“ are also guided in our resolution by interpretations of the Americans
with Disabilities Act”).
22
s
of similar law, and contradicts the Texas Legislature’ understanding of the disability
definition when it was adopted, it should not be followed.25
s
Nor does this Court need to adopt Toyota Motor’ strict interpretation to stem any
feared “
tide” litigation. The issue almost never comes up.26 Even recognizing running as
of
a major life activity, one must still prove a substantial limitation in it, in comparison with the
average person, in order to establish a disability.27 Given the widely publicized studies of
s
American health, the average person’ ability to run is likely quite modest. Although
substantial limitation does not require proof of utter inability as a general proposition,28 it may
well be that only a complete inability to run (as is the case here) can establish a substantial
limitation in this particular activity. Of course, even if a person meets the disability threshold
and establishes coverage, that person must still negotiate the other Legislative hurdles to
proving a case, including showing that he or she is able to “ the
reasonably perform” job, Tex.
25
See Dahill, supra, 748 N.E.2d at 961 (presuming that the state legislature intended its
disability definition to be interpreted consistently with then-existing case law). See also Stone v. St.
s
Joseph’Hosp. of Parkersburg, 538 S.E.2d 389, 410-411 (W.Va. 2000) (McGraw, J., concurring
in part) (“ Obviously, we must presume that the Legislature, by incorporating the language of
analogous federal statutes into the West Virginia Human Rights Act, intended that such language
should be interpreted consistent with pre-existing federal case law . . . later federal cases have no
more persuasive value than what is warranted by the cogency and soundness of their logic.” ).
26
Even before Toyota Motor, there were relatively few reported disability cases under either
s
Chapter 21 or the TCHRA. By Davis’count, there are an average of just over two Texas appellate
decisions per year (reported or unreported) involving disability discrimination claims, and of course
only one involved running as a major life activity
27
See, e.g., 29 C.F.R. § 1630.2(j)(1)(i) and (ii).
28
Id.; Bragdon v. Abbott, 524 U.S. 624, 641 (1998).
23
Labor Code § 21.105, that any accommodation sought is reasonable, Tex. Labor Code §
21.128,29 and that any adverse action was taken because of a disability. Tex. Labor Code §
21.051.
For all of the above reasons, the Court of Appeals correctly held that running is a
major life activity. The evidence is both clear and uncontested in this case that Davis cannot
run at all. (Davis Aff, 2, R. at 133.) He is therefore substantially limited in a major life
activity.
The McDonnell Douglas Burden-Shifting Formula Does Not Apply
To Failure-To-Accommodate Claims
The City contends that the Court of Appeals erred in holding that the burden-shifting
test set out in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), does not apply to
s
Davis’ claim that the City failed to accommodate his disability. Furthermore, the City
asserts that the Court of Appeals relied on a single case, Bultemeyer v. Fort Wayne Cmty.
1284 (7th Cir. 1996), in support of its holding, suggesting that
Schs., 100 F.3d 1281, 1283–
Bultemeyer is an “
outlier.”
In fact, many other cases similarly reject the applicability of McDonnell Douglas to
failure-to-accommodate claims. For cases under the ADA, see, e.g., Fenney v. Dakota,
712
Minnesota & Eastern R. Co., 327 F.3d 707, 711– (8th Cir. 2003); Higgins v. New Balance
Athletic Shoe, Inc., 194 F.3d 252, 264 (1st Cir. 1999); Aka v. Washington Hosp. Center, 156
29
In addition, the employer may still avoid liability by asserting various defenses. For
example, in an accommodation case the employer is not liable if it shows that the accommodation
sought would pose an undue hardship. Texas Labor Code § 21.128.
24
F.3d 1284, 1288 (D.C. Cir. 1998) (en banc); Williams v. Channel Master Satellite Systems,
Inc., 101 F.3d 346, 348 n.1 (4th Cir. 1996), cert. denied sub nom Williams v. Avnet, Inc., 520
1181 (6th
U.S. 1240 (1997); Monette v. Electronic Data Systems Corp., 90 F.3d 1173, 1180–
s
Cir. 1996). For cases under the Rehabilitation Act (the ADA’predecessor), see, e.g., Teahan
515
v. Metro-North Commuter R. Co., 951 F.2d 511, 514– (2d Cir. 1991), cert. denied, 506
U.S. 815 (1992); Smith v. Barton, 914 F.2d 1330, 1339 (9th Cir. 1990), cert. denied, 501 U.S.
1217 (1991); Prewitt v. U.S. Postal Service, 662 F.2d 292, 305 n.19 (5th Cir. 1981); Taylor
v. Phoenixville School Dist., 113 F. Supp. 2d 770, 776 n.3 (E.D. Pa. 2000). For cases under
state law, see, e.g., Fenney, supra; Higgins, supra; Monette, supra; Canteen Corp. v.
812
Pennsylvania Human Relations Com'n, 814 A.2d 805, 810– (Pa. Commw. Ct. 2003);
Baltimore & Ohio R. Co. v. Bowen, 482 A.2d 921, 925 (Md. App. 1984).
s
Still other courts support Bultemeyer’ analysis by adopting similar elements for a
failure-to-accommodate claim30 without any reference to McDonnell Douglas at all. See, e.g.,
Rhoads v. FD.I.C., 257 F.3d 373, 387 n.11 (4th Cir.2001); Stone v. City of Mt. Vernon, 118
97,
F.3d. 92, 96– cert. den., 522 U.S. 1112 (1998); Young v. Central Square Cent. School
Dist., 213 F. Supp. 2d 202, 212 (N.D.N.Y. 2002); Cleveland v. Prairie State College, 208 F.
30
These cases typically hold that, to establish a prima facie case based on an employer’ s
failure to provide a reasonable accommodation, the plaintiff must show: (1) that he is an individual
who has a disability; (2) that an employer covered by the statute had notice of his disability; (3) that
with reasonable accommodations he could perform the essential functions of his position; and (4) that
the employer has refused to make such accommodations.
25
Supp. 2d 967, 975 (N.D. Ill. 2002); Nighswander v. Henderson, 172 F. Supp. 2d 951,
963
962– (N.D. Ohio 2001).
The reason for rejecting the burden-shifting analysis in accommodation cases is both
logical and obvious. The McDonnell Douglas analysis was created to deal with the usual
Title VII “
pretext”case, in which the defendant denies taking the protected classification
(e.g., race or gender) into account in its decision-making, and therefore no direct evidence of
discrimination exists. Compare Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248,
[T]he allocation of burdens and the creation of a presumption by the
255 n.8 (1981) (“
establishment of a prima facie case is intended progressively to sharpen the inquiry into the
).
elusive factual question of intentional discrimination.” By contrast, in cases involving the
failure to accommodate, as in this one, the defendant typically does not dispute that it took
action based on disability. Compare Williams v. Channel Master Satellite Systems, Inc., 101
F.3d 346, 348 n.1 (4th Cir. 1996),31 cert. denied sub nom Williams v. Avnet, Inc., 520 U.S.
1240 (1997); Benson v. E.I. Du Pont De Nemours & Co., 182 F. Supp. 2d 527, 531 (W.D. Va.
In
2002) (“ cases in which the employer does not disclaim reliance on the disability, the
purpose of the McDonnell Douglas test, determining the reason for the adverse employment
31
In Williams, the court stated: “ district court improperly relied on a proof scheme based
The
on the approach that the Supreme Court took in McDonnell Douglas Corp. v. Green. By readjusting
burdens between the plaintiff and defendant, the McDonnell Douglas test is designed to circumvent
a factual dispute over the reasons for discharge, and is therefore most appropriate when the defendant
disavows any reliance on discriminatory reasons for its adverse employment action. Here, the parties
do not dispute that the reason that Channel Master did not permit Williams to return to her job was
that her back injury prevented her from performing her assigned tasks without accommodation. The
McDonnell Douglas inferential proof scheme is not appropriate when, as here, the reason for
discharge is undisputed.”101 F.3d at 348 n.1 (citations and internal quotation marks omitted).
26
).
action, will have been achieved at the outset.” The failure to accommodate is a direct
violation of the law. Bultemeyer, supra, 100 F.3d at 1283. Thus, there is no need to show
pretext, and intent is generally not at issue. Peebles v. Potter, 354 F.3d 761, 766 (8th Cir.
2004);32 Davidson v. America Online, Inc., 337 F.3d 1179, 1189 (10th Cir. 2003).33
The City treats the Court of Appeals opinion as though it holds that the McDonnell
Douglas burden-shifting test does not apply to cases under Chapter 21 of the Texas Labor
Code. The opinion says no such thing. Its holding is limited to the proposition that the
burden-shifting test does not apply in a disability discrimination case where the issue is one
of a failure to accommodate.
The City cites a number of cases in which the McDonnell Douglas burden-shifting test
was applied to Chapter 21 claims. These cases are not inconsistent with the Court of Appeals
32
The Peebles court stated: “
Reasonable accommodation claims are not evaluated under the
McDonnell Douglas burden-shifting analysis. Rather, a modified burden-shifting analysis is applied.
This is so because a claim against an employer for failing to reasonably accommodate a disabled
s
employee does not turn on the employer’intent or actual motive. The McDonnell Douglas line of
cases, however, is aimed at fleshing out this elusive factual question of intentional discrimination.”
(citations and internal quotation marks omitted).
33
The Davidson court stated: “ the employer admits that the disability played a prominent
If
part in the decision, or the plaintiff has other direct evidence of discrimination based on disability, the
burden-shifting framework may be unnecessary and inappropriate. Instead, an employer will defend
its decision on the ground that the plaintiff is not otherwise qualified for the position, with or without
reasonable accommodation. The McDonnell Douglas burden shifting approach is unnecessary
s
because the issue of the employer’intent has been admitted and the plaintiff has direct evidence of
discrimination on the basis of his disability. If the plaintiff in such a case is in fact statutorily disabled,
the determinative issue in the case will not be the employer's intent, but whether the employee is
otherwise qualified, with or without reasonable accommodation, to perform the job, a factual dispute
that is resolved through traditional methods of proof.” (citations and internal quotation marks
omitted).
27
opinion. None of them involve situations in which the burden-shifting test was applied to a
failure-to-accommodate claim.34
Under the facts set out in his controverting affidavit, Davis has established all the
8, 139.) The
elements of a prima facie case under these authorities. (Davis Aff., 1– R. at 132–
Court of Appeals correctly held that the McDonnell Douglas burden-shifting test does not
apply to a failure to accommodate claim in a disability discrimination case.
The City Did Not Prove As A Matter Of Law
That It Provided Davis With A Reasonable Accommodation
The City failed to offer Davis any accommodation.
34
Compare King v. Gietz, 2005 WL 2841132, at *2 (Tex. App.– Corpus Christi 2005, no pet.)
(age and disability case, but no accommodation question); Wiltshire v. Humpal Physical Therapy,
2005 WL 2091092, at *6 (Tex. App.– Corpus Christi 2005, no pet.) (reverse racial discrimination);
Russo v. Smith Intern, 93 S.W.3d 428, 434 (Tex. App.– Houston [14th Dist.] 2002, pet. den.) (age
discrimination); Thomas v. Clayton Williams Energy, 2 S.W.3d 734, 739 (Tex. App.– Houston [14th
Dist.] 1999, no pet.) (race discrimination and retaliation); Gold v. Exxon Corp., 960 S.W.2d 378, 381
(Tex. App.– Houston [14th Dist.] 1998, no pet.) (age discrimination); Primeaux v. Conoco, Inc., 961
S.W.2d 401, 407 (Tex. App.– Houston [1st Dist.] 1997, no pet.) (disability discrimination involving
failure to rehire, no accommodation issue); O’ Campo v. Lab Corp. of America, 2005 WL 2708790,
at *14 (W.D. Tex. 2005) (age discrimination and retaliation); Dixon v. Albemarle Corp., 2005 WL
1503470, at *3 (S.D. Tex. 2005) (disability discrimination and retaliation, no accommodation issue);
Khan v. United Recovery Sus., Inc., 2005 WL 469603, at *5 (S.D. Tex. 2005) (discrimination on the
basis of sex, religion, and national origin); Miller v. Airborne Express, 1999 WL 47242, at *7 (N.D.
Tex. 1999) (plaintiff did not have a disability, accommodation issue not reached; McDonnell Douglas
applied only to disparate treatment claim); Sheppard v. Great Springs Waters of America, 1998 WL
154545, at *3 (N.D. Tex. 1998) (involving failure-to-accommodate claim, but case decided on issue
of disability, so accommodation issue not reached; McDonnell Douglas only applied to retaliation
claims); M. D. Anderson Hosp. and Tumor Institute v. Willrich, 28 S.W.3d 22, 24 (Tex. 2000) (race
discrimination); Casas v. Mitsubishi Caterpillar, 2006 WL 2792901, at *2 (S.D. Tex. 2006) (age
discrimination); Texas Dept. of Human Services of State of Tex. v. Hinds, 904 S.W.2d 629, 636
(Tex.1995) (termination of whistleblower); Williams v. Corpus Christi Independent School Dist.,
2006 WL 2022502 (Tex. App.– Corpus Christi 2006, rule 53.7(f) motion granted) (age and gender
discrimination).
28
In its motion for summary judgment, defendant says that it was not obligated to honor
s s
Davis’ request to create a new position for him. In Plaintiff’ First Amended Original
Petition, Davis does not complain that the City failed to create a new position. He complains
that the City failed to reassign him to an existing position or otherwise accommodate him.
s
The petition does not mention creation of a new position. (Pl’First Am. Original Pet., R. at
19.)
13–
The City cites budgetary concerns as the reason why it could not create a new position
s s
to accommodate Davis’ disability. (Defendant’ Mot. Summ. J., 15, R. at 38) However,
creation of a new position was not necessary. Transfer of Davis to the open
telecommunications position without requiring him to compete for the job would have
accommodated him without any impact on the budget, since the job was an open position that
was going to be filled by someone. He met the qualifications for the job, yet it was never
offered to him. (Davis Aff., 3, 5, R. at 134, 136; Anderson Depo., 26, 36, R. at 315, 325)
s
The City could also have accommodated Davis’disability without creating a new job
by retaining him in the firefighter/paramedic job on light duty, as it did for Sheldon Leonard,
who developed post traumatic stress disorder and went on light duty in 2000. At the time
s
Chief Anderson’deposition was taken on July 29, 2004, Leonard was still working on light
duty. The chief testified the City would create a new position for him once budgetary
concerns would allow it. In the meantime, he continued to be retained as a
29
40, 329) The same
firefighter/paramedic on light duty. (Anderson Depo, 38– R. at 327–
accommodation could have been extended to Davis, without creation of a new position.35
s
The summary judgment proof shows that, when Davis’superiors learned he could
no longer climb ladders or drive emergency vehicles, they informed him he could not continue
to work as a firefighter/paramedic. No other position was ever offered to him, and no
reasonable accommodation was offered in terms of modification of his duties to eliminate the
s
parts of the job he could not do or a transfer to a job he could do. Davis’ superiors did
identify a job as a telecommunicator that Davis applied for, but they never offered him the
job. All they offered him was the opportunity to apply for the job in competition with other
applicants, something he had a right to do anyway. Still, he applied for the job, even though
the hiring officials interviewing him for the job illegally inquired into the nature and effect
of his multiple sclerosis (see footnote 3 above), and even though he had been told he would
5, 136; Tr.
not receive preferential treatment among the applicants. (Davis Aff., 3– R. at 134–
14, 154; Anderson Depo., 24– R. at 313–
of meeting, Exhibit A, pages 4– R. at 144– 36, 325,
Ferris Depo., 8, 9, R. at 476, 477.) In fact, Chief Anderson testified that the job was not one
that would have entitled Davis to a preference under City of Grapevine policy, and he
conceded that the City never offered the job to Davis. (Anderson Depo, 24, 34, 35, Ex. 11,
R. at 313, 323, 324, 444.)
35
See the discussion of Burch v. City of Nacogdoches, 174 F.3d 615 (5th Cir.1999), under
Cross Point 2 below.
30
The City apparently contends that it satisfied its obligation to accommodate Davis
simply by allowing him to apply for the telecommunications job. Such a crabbed view of the
accommodation obligation has been rejected by the U.S. Supreme Court.36 Reasonable
accommodations include reassignment, 42 U.S.C. § 12111(9)(B), and accommodation through
reassignment means actually placing Davis in another job, not just in allowing him to apply.
See Gile v. United Airlines, Inc., 213 F.3d 365, 374 (7th Cir. 2000); Smith v. Midland Brake,
1166 (10th Cir. 1999) (en banc); Aka v. Washington Hosp. Center,
Inc., 180 F.3d 1154, 1164–
156 F.3d 1284, 1304 (D.C. Cir. 1998) (en banc); Gile v. United Airlines, Inc., 95 F.3d 492,
498 n.2 (7th Cir. 1996) (quoting new Rehabilitation Act regulations); Ransom v. State of
901
Arizona Bd. of Regents, 983 F. Supp. 895, 899– (D. Ariz. 1997). See also Rouillard v.
Potter, 2003 WL 21026814, at *7 (D. Minn. 2003) (policy precluding transfers may support
a failure-to-accommodate claim).
A contrary interpretation “
nullifies the clear statutory language stating that
reassignment is a form of reasonable accommodation,”because “
even without the ADA, an
36
s
In US Airways, Inc. v. Barnett, 535 U.S. 391, 397 (2002), the court rejected an employer’
claim that accommodations should not give a “ preference,” stating:
While linguistically logical, this argument fails to recognize what the Act specifies,
namely, that preferences will sometimes prove necessary to achieve the Act’basic s
equal opportunity goal. The Act requires preferences in the form of “ reasonable
accommodations”that are needed for those with disabilities to obtain the same
workplace opportunities that those without disabilities automatically enjoy. By
definition any special “accommodation” requires the employer to treat an employee
with a disability differently, i.e., preferentially. And the fact that the difference in
treatment violates an employer's disability-neutral rule cannot by itself place the
s
accommodation beyond the Act’ potential reach. . . . Were that not so, the
“reasonable accommodation” provision could not accomplish its intended objective.
31
employee with a disability may have the right to compete for a vacant position.” EEOC
Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the
Americans with Disabilities Act, Question 29, and n.90 (Oct. 2002, Revised), online at
http://www.eeoc.gov/policy/docs/accommodation.html.
The City cites Daugherty v. City of El Paso, 56 F.3d 695, 698 (5th Cir. 1995) in
support of its position, but the facts in that case were very different. In Daugherty, plaintiff
was a part-time employee who demanded that he be transferred to a full-time job when he
became disabled from doing his part-time job. Such a transfer would have required bypassing
any full-time employees who applied for the job, which would have violated the preference
full-time employees had in applying for transfers to other full-time positions under the city
charter. In short, the requested accommodation was unreasonable. Moreover, the plaintiff
refused to accept placement in other part-time jobs that were offered him as an
accommodation. Id.
In other authorities cited by the City, the evidence showed that the employer did offer
some accommodation, which in each case the claimant rejected.37 By contrast, the City of
Grapevine never offered Davis any accommodation, and he did not reject or refuse to take an
accommodation that was actually offered.
37
Compare Rayha v. United Parcel Service, 940 F. Supp. 1066, 1069 (S.D. Tex. 1996);
Chiari v. City of League City, 920 F.2d 311, 318 (5th Cir. 1991); Smith v. United Parcel Service,
50 F. Supp. 2d 649, 653 (S.D. Tex. 1999); Francis v. Potter, 2003 WL 22016947 (N. D. Tex. 2003).
32
Certainly, the City has failed to prove as a matter or law that it offered Davis a
reasonable accommodation.
Davis Suffered An Adverse Employment Action By
s
The City’Failure To Accommodate, And By Being Constructively Discharged
A failure to accommodate is a direct violation of the law, Bultemeyer, supra, 100 F.3d
at 1283, and is itself an adverse action, Williams v. Philadelphia Housing Authority Police
Dept., 380 F.3d 751, 761 (3d Cir. 2004), cert. denied, 544 U.S. 961 (2005). In such cases,
a plaintiff need not show any other type of adverse employment action. Nawrot v. CPC
724
Intern., 259 F. Supp. 2d 716, 722– (N.D. Ill. 2003); Dudley v. Dallas Independent School
Dist., 2001 WL 123673 (N.D. Tex. 2001). See also Marshall v. Federal Exp. Corp., 130 F.3d
1095, 1099 (D.C. Cir. 1997) (assuming but not deciding that no other adverse action need be
shown).
In addition to its failure to accommodate, the City also constructively discharged
Davis. The City cites authorities for the proposition that, to establish constructive discharge,
a plaintiff must prove that working conditions were so intolerable that he or she was
compelled to quit. This may be one way to prove constructive discharge, but it is not the only
way; these authorities are simply not relevant to the facts in this case.
The City ignores authorities holding that, if a worker is given an ultimatum to quit or
be fired, and resigns under those circumstances, a constructive discharge has occurred. Brown
Beaumont 1996), rev’
v. Montgomery County Hosp. Dist., 929 S.W.2d 577, 582 (Tex. App.– d
33
on other grounds, 965 S.W.2d 501 (Tex.1998). This point is clearly made in Faruki v.
Parsons S.I.P., Inc., 123 F.3d 315, 319 (5th Cir.1997), which states:
s
Our review of the court’ Memorandum and Opinion reveals that the court
s
failed to address Azeez’most compelling evidence of constructive discharge,
s
viz., Azeez’deposition testimony that Taylor had told Azeez that Azeez should
find another job, as Parsons would be unable to retain him, and that he had one
week before he would be placed on indefinite unpaid leave. Taking this
allegation as true, as we must, and drawing all justifiable inferences in his
favor, see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505,
2513, 91 L.Ed.2d 202 (1986), we conclude that Azeez has established a
genuine issue of material fact on the discharge element of his prima facie case.
Cf. Burks v. Oklahoma Pub. Co., 81 F.3d 975, 978 (10th Cir.1996)
(recognizing that employee can prove constructive discharge by showing that
she faced choice between resigning or being fired), cert. denied, 519 U.S. 931,
117 S.Ct. 302, 136 L.Ed.2d 220 (1996); Jenkins v. State of LA., Thru Dep't of
Corrections, 874 F.2d 992, 996 (5th Cir.1989) (stating that constructive
discharge can be proven with evidence that plaintiff-employee was given
ultimatum). [footnote omitted]
When an employment action amounts to termination in all but name, termination has, in fact,
occurred. Junior v. Texaco, Inc., 688 F.2d 377, 380 (5th Cir. 1982).
s
The summary judgment proof demonstrates that Davis’ superiors, Fire Chief
Anderson and Personnel Director Van Duzee, at a meeting held on April 22, 2002, told him
he could no longer work as a firefighter/paramedic, and that they could not assign him to
another position. Ms. Van Duzee told him he should consider resigning so his employment
record would not show that he had been terminated from his job. She told him he could apply
for another job with the City, but that he would be treated like any other applicant and would
not receive a preference in hiring. (Davis Aff., 3, R. at 134; Tr. of meeting, Ex. A, Davis
154.)
Aff., R. at 145–
34
In his deposition, Chief Anderson testified that he would have had to terminate Davis
from his firefighter/paramedic job if he had not resigned. (Anderson Dep, 25, R. at 314.)
Anderson also testified Davis was never offered another position with the City (id., R. at 313),
and that Davis was never offered the telecommunications job (id., R at 315).
This evidence demonstrates that, when Davis resigned, it was in lieu of termination,
and therefore amounted to constructive discharge. The defendant has failed to meet its burden
of proving as a matter of law that plaintiff was not subject to an adverse employment action.
The City claims Davis resigned voluntarily, and was not compelled to quit. A review
of the evidence shows otherwise. On April 22, 2002, Davis met with Chief Anderson and the
s s
City’Personnel Director, Carolyn Van Duzee, to discuss Davis’options in light of the fact
he could no longer perform all the duties of a firefighter/paramedic. The following exchange
took place between Davis and Ms. Van Duzee:
Mr. DAVIS: That wasn’– ask –
t to m
You know, I was asking if I’ being terminated
t ll
from the city, and you didn’answer me, so I’ ask again.
MS. VAN DUZEE: I wanted to ask a question before I answered your question.
MR. DAVIS: Okay.
s
MS. VAN DUZEE: It’ obviously in your best interest if you determine that you
would like to resign rather than be terminated.
In other words, future employers check with previous employers. And the standard
t
question is, is the person eligible for rehire, and I don’see that that would be a no
with the City of Grapevine whether you resign or if you are terminated. That’ mys
opinion.
But a lot of times their questions will turn to: Did he resign, how did his employment
end, those type of things.
35
re
MR. DAVIS: Did he resign in lieu of termination. Yeah, I see where you’ going.
MS. VAN DUZEE: And if you go to work for a public type employee, like a hospital
or a –I can’think of another type of institution, a community college like you were
t
before, they are the type of employers that are more likely to come here and look
through the personnel file than the public sector.
m s
And what I’ saying is that it’in your best interest from my opinion if you would
s
decide that it’in your best interest to resign rather than go through termination, but
s m
that’ your option. I’ not telling you that you need to by any means. I’ just m
presenting that idea that others may examine your file in the future.
149.) Fire Chief Anderson testified as follows in his
(Transcript of meeting, R. at 147–
deposition:
Q. Did you ever actually offer him another position?
A. No.
Q. If Mr. Davis during the meeting of April 22 or within a short time thereafter had
told you that he thought he could keep the firefighter/paramedic job and wasn’ t
interested in anything else, what would your action have been?
A. At that point, if he was – request was to maintain on shift, I would at that point
his
ask him either to resign or to have to terminate him.
Q. And it would be his choice whether he resigned or you terminated him?
A. Yes.
Q. So if he had just not applied for anything else and had indicated he wanted to keep
t
the firefighter/paramedic job, that wasn’really an option, was it?
A. No, sir.
Q. And it was inevitable that he was going to be terminated from that position.
A. Yes.
s
Q. Because of Dr. Blue’reports.
36
A. Yes.
314.)
(Anderson Dep., R. at 313–
The City cites the fact that Davis did eventually resign, and claims that the resignation
was voluntary, but it has certainly not proved this as a matter of law. Davis apparently
119,
interviewed for the telecommunications job around May 16, 2002. (Davis Dep. 118– R.
at 195.) Several things happened during the interview that made him mistrust the fairness
of the process. Sandy Ferris, one of the interviewers for the position, had been told by
someone in the fire department that Davis had multiple sclerosis. (Ferris Dep., R. at 476.)
This information prompted her to ask him during the interview if the multiple sclerosis would
affect his ability to work. (Ferris Dep., R. at 477.) Davis knew such an inquiry was unlawful
at that stage of the interviewing process. (Davis Dep., R. at 135.)38 Compounding Davis’
s
mistrust of the interview process, another interviewer asked him if he had ever flashed a
badge to avoid a ticket.39
After the interview, Davis heard nothing from the City for a number of weeks. He had
not been offered the telecommunications job, and he knew there were numerous other
applicants for the position.40 In the meanwhile, he had a job offer from Baylor Medical. At
38
See 42 U.S.C. § 12112(d)(2)(A).
39
Davis sets out his reasons for withdrawing his application for the telecommunications job
in a letter he wrote to Chief Wilkins of the police department on June 16, 2002. (R. at 286.) At the
same time, he tendered his resignation to Chief Anderson. (R. at 288; Davis Aff., R., 134– 136.)
40
Sandy Ferris, one of the interviewers, testified there were twenty or more applicants. (Ferris
Dep., R. at 475.)
37
that point, he was forced to withdraw his application for the telecommunications job and
accept the job with Baylor. He started working for Baylor on June 17, 2002. (Davis Dep.,
14,
13– R. at 51.)
s
The City makes much of Davis’ statement that, at the time he resigned from his
firefighter/paramedic job, he no longer wanted the job because he had found another job.
(Davis Dep., 179, R. at 68.) Once Davis accepted the job with Baylor, he could no longer
properly maintain employment with the City. He had been told during the meeting on April
22, 2002 that keeping the firefighter/paramedic job was not an option. Nearly two months
later, he still had not been offered any accommodation by the City.
Under those circumstances, it was quite reasonable for him to find and accept a job
outside the City. He would not have resigned had the City allowed him to keep the
firefighter/paramedic job with proper accommodations, or offered him a suitable alternative
job. (Davis Aff., R. at 135–136.) Instead, the City simply let him apply along with many
others, told him he would not get any preference, questioned him about his illness, and then
left him in limbo for a month, without news and without any reason to hope. Under these
s
circumstances, Davis’ resignation was in lieu of termination, and does constitute a
constructive discharge.
CROSS POINTS
[Review of these points is sought only if the Petition for Review is granted]
The City Failed To Conclusively Prove That Davis Was Not Substantially Limited
In The Major Life Activity Of Walking, And The Lower Court Erred
In Its Contrary Holding
38
s
According to the summary judgment proof from Dr. Blue’ testimony and records,
s
Davis’ diagnosis of multiple sclerosis goes back to the spring of 2001, more than a year
before he was forced to quit with the City of Grapevine. At that time, he had numbness over
the entire right side of his body, and tingling in his legs. (Dr. Blue Dep., Exhibit 1, R. at
506.) In the fall of 2001, when Dr. Blue evaluated Davis, she found he had numbness
504–
in the left jaw going to the right side of his body, and other problems, including difficulties
with balance, clumsiness, and weakness in the right arm more than in the right leg. (Dr. Blue
12, 506.)
Dep., 10– R. at 490; Exhibit 1, R. at 504–
In an office visit with Davis on February 20, 2002, Dr. Blue noted he limped on the
right side and had other problems. She said such limping results from weakness on one side
of the body, caused by multiple sclerosis. (Dr. Blue Dep., 14, R. at 491, Exhibit 3, R. at 511,
512.) At that time, he had a slapping gait and had difficulty in tandem walking. Tandem
walking is putting one foot in front of the other. Davis also had a positive Romberg test,
which means he could not stand straight up with his eyes closed without wavering. The
broad-based gait, difficulty in tandem walking, and positive Romberg test are consistent with
multiple sclerosis. (Dr. Blue Dep., 15, R. at 491, Exhibit 3, R. at 511, 512.) This medical
s
history is certainly consistent with Davis’affidavit to the effect that, when he runs or walks
fast, he falls down, and that this problem was present in the spring of 2002. (Davis Aff., R.
at 133.)
s
In response to inquiries from the City, Dr. Blue wrote several letters describing Davis’
limitations due to his multiple sclerosis. In her letter of February 28, 2002, she stated: “
His
39
symptoms include some mild difficulty with balance. Mr. Davis would not consistently be
able to climb ladders, particularly in an emergency situation. Neither could he consistently
be required to drive emergency vehicles. Although he functions very well most of the time,
there could be some limitations in terms of balance.”(Dr. Blue Dep., Exhibit 4, R. at 514.)
On March 29, 2002, she wrote: “
Although he is able to perform well on many
occasions, there could be instances where he would be limited in terms of balance, rapid
response ability, and coordination. Therefore, he should be considered disabled from
performing his duties as a firefighter/paramedic. Since multiple sclerosis is a progressive
disease, it is anticipated that he will be permanently disabled in terms of his ability to return
to work as a firefighter/paramedic.”(Dr. Blue Dep., Exhibit 5, R. at 517.)
On the basis of these letters from Dr. Blue, Chief Anderson and Personnel Director
Van Duzee advised Davis during their meeting on April 22, 2002 that he could no longer be
employed by the City as a firefighter/paramedic. Van Duzee advised Davis the City had no
alternate employment to offer without his applying for it like any other applicant, and that
150.)
he should consider resigning in lieu of termination. (Transcript of meeting, R. at 146–
s s
Both Dr. Blue’records and testimony, and Davis’own sworn statement set out in
his affidavit opposing summary judgment, demonstrate that his multiple sclerosis substantially
limits him in a number of major life activities, and did so at the time he was forced to
terminate his employment with the City. He is substantially limited in the major life activities
of walking, running, lifting, climbing stairs, and working.
40
With regard to walking, Davis states that when he walks fast or runs, he falls down.
s
(Davis Aff., R. at 133.) This assertion is supported by Dr. Blue’records and testimony, and
by the letters she wrote the City. (Dr. Blue Dep., R. at 490, 491; Exhibits 1, 3, 4, 5; R. at
506, 511, 512, 514, 517.)
504–
The City cites a number of cases from the Fifth Circuit and other courts outside of
Texas for the proposition that even major impairments in the ability to walk may not rise to
the level of a disability under the ADA. Although Texas courts can consider such authorities,
only the decisions of the Texas Supreme Court are binding on them. Penrod Drilling Corp.
v. Williams, 868 S.W.2d 294, 296 (Tex. 1993).
384
In Little v. Texas Department of Criminal Justice, 148 S.W.3d 374, 383– (Tex.
2004), this Court set out the following standard for determining whether a claimant has a
disability with regard to the major life activity of walking: “ person need not be totally
A
unable to walk to be “
disab[led]”under [42 U.S.C. § 12102(2)(A)]; she need only be
significantly restricted as to the condition, manner, or duration of her walking as compared
to that of the average person in the general population.”Ibid., 383
In a case cited in support by this Court in Little, the Eighth Circuit held: “ can
[I]t
hardly be disputed that Belk is disabled in the major life activity of walking. The full range
of motion in his leg is limited by the brace, and his gait is hampered by a pronounced limp.”
Belk v. Southwestern Bell Tel. Co., 194 F. 3d 946, 950 (8th Cir. 1999), cited in Little at 384.
Because Davis is hampered by the problems described by Dr. Blue, including a limp,
he is significantly restricted in his walking compared to the average person in the general
41
population, and qualifies as a person with a disability under Chapter 21 on the basis of such
restriction.
The City claims that, since Davis can care for himself and function in day-to-day
living, and since he is working, he does not have a disability. But of course the proper focus
is not on all of the things that the plaintiff can do, but rather on those activities that he or she
cannot do, or is substantially limited in doing.41 Otherwise the ADA would be inapplicable
to those individuals most likely to have the capacity to perform various jobs capably if
provided with reasonable accommodations. Finical v. Collections Unlimited, Inc., 65 F.
1039 (D. Ariz. 1999).
Supp. 2d 1032, 1038–
Under Texas law, disability means “ mental or physical impairment that substantially
a
limits at least one major life activity of that individual, a record of such an impairment, or
being regarded as having such an impairment.” Tex. Lab. Code Ann. § 21.002(6). The
41
See, e.g., Emory v. AstraZeneca Pharmaceuticals LP, 401 F.3d 174, 180– (3d Cir.181
The
2005) (“ District Courts focus on what Emory has managed to achieve misses the mark. While
evidence of tasks he has mastered might seem to serve as a natural counterpoint when evaluating
disability, the paramount inquiry remains—does ‘ Emory have an impairment that prevents or severely
restricts [him] from doing activities that are of central importance to most people’daily lives’
s ” );
The
Gillen v. Fallon Ambulance Service, Inc., 283 F.3d 11, 22 (1st Cir. 2002) (“ key question is not
whether a handicapped person accomplishes her goals, but whether she encounters significant
);
handicap-related obstacles in doing so.” Belk v. Southwestern Bell Telephone Co., 194 F.3d 946,
950 (8th Cir. 1999) (finding the plaintiff had a disability, notwithstanding the employers litany of all
of the activities that the plaintiff could engage in); Carter v. Northwest Airlines, Inc., 2003 WL
403131, at *3 (N.D. Ill. Feb. 20, 2003) (“ s
Northwest places great importance on Carter’ability to
drive to a health club, sit in the hot tub, swim in the pool, use an upper body weight lifting machine,
s
and ride a stationary bike. But these activities are not relevant to whether Carter’ impairment
),
substantially limits his ability to walk.” judgment aff'd, 93 Fed. Appx. 944 (7th Cir. 2004); EEOC
v. United Parcel Services, Inc., 149 F. Supp. 2d 1115, 1156 (N.D. Cal. 2000) (the fact that claimants
lead normal lives proves little); Finical v. Collections Unlimited, Inc., 65 F. Supp. 2d 1032,
1038– 1039 (D. Ariz. 1999).
42
relevant inquiry is therefore not whether a person can function in day-to-day living, but
whether he is substantially limited in a major life activity.
Under both federal and Texas law, if a claimant suffers from even a single impairment
that substantially limits a major life activity, it does not matter how many things he can do,
or how much he is working, he is nevertheless a person with a disability. In his affidavit
(R. 132, 133), Davis identifies the impairments he suffers from as a result of his multiple
s
sclerosis. In her deposition, Dr. Blue associates these impairments with Davis’ multiple
25, 494.)
sclerosis and discusses their nature and extent. (Blue Dep., 10– R at. 490–
In the cases relied on by defendant, Thompson v. Cargo Master, 2001 WL 313956
(N.D. Tex. 2001), and Wynn v. Whitney Holding Corporation, 22 F. Supp. 2d 582 (M.D. La.
2002), the claimants failed to demonstrate how multiple sclerosis affected one or more major
life activities. But if this disease does substantially affect a major life activity, the person has
a disability within the meaning of Chapter 21. Many courts have found multiple sclerosis to
be a disability under the facts presented. See, e.g., Gagliardo v. Connaught Laboratories,
Inc., 311 F.3d 565 (3d Cir. 2002) (sufficient evidence that plaintiff had a disability to support
s 1046 (8th Cir.
jury’verdict on ADA claim); Brown v. Cox Med. Ctr., 286 F.3d 1040, 1045–
2002) (similar); Braunling v. Countrywide Home Loans Inc., 220 F.3d 1154, 1157 (9th
Cir.2000) (sufficient evidence of disability on summary judgment); Anderson v. Coors
s
Brewing Co., 181 F.3d 1171, 1175 (10th Cir.1999) (similar); Lowe v. Angelo’Italian Foods,
1174 (10th Cir. 1996) (similar); Allen v. Best Foods Baking Co.,
Inc., 87 F.3d 1170, 1172–
2003 WL 22858351, at *6 (E.D. Pa. Oct. 22, 2003) (motion to dismiss denied based on
43
pleadings regarding MS); Mercado Rivera v. Loctite Puerto Rico, Inc., 222 F. Supp. 2d 136,
140 (D.P.R. 2002) (summary judgment); Spears v. Delphi Automotive Systems Corp., 2002
WL 1880756, at *9 (S.D. Ind. Aug. 15, 2002) (summary judgment); Heimbach v. Riedman
Corp., 175 F. Supp. 2d 1167, 1176 (D. Minn.2001) (summary judgment rejected); Scott v.
Estes, 60 F. Supp. 2d 1260 (M.D. Ala. 1999) (motion to dismiss).
Davis indicates in both his affidavit and his deposition that, when he walks fast or runs,
he falls down. (Davis Aff., 2, R. at 133; Davis Dep., 31, R. at 171.) Dr. Blue relates this
problem to his multiple sclerosis. (Blue Dep., 23, 24, R. at 493.)
This Court has considered the question of whether walking is a major life activity
t
under the Chapter 21 of the Texas Labor Code, and has held that it is. Little v. Texas Dep’
of Criminal Justice, 148 S.W.3d 374, 380, 381 (Tex. 2004). Under Little, Davis is
substantially limited in walking if he is significantly restricted as to the condition or manner
of his walking as compared to the way the average person in the general population walks.
Id. at 384, Appendix at 34. He cannot walk fast without falling down, while the average
person can do so. For this reason, he is substantially limited compared to the average person..
In PGA Tour, Inc. v. Martin, 532 U.S. 661 (2001), the U. S. Supreme Court gave some
guidance on the kind of evidence needed to prove a substantial limitation in walking under
the ADA.42 The Court observed that Casey Martin, who had a degenerative circulatory
42
The PGA Tour case involved the interpretation of Title III of the ADA (applicable to public
accommodations), rather than Title I, but the definition of “ is
disability” the same under both titles.
s
Although the PGA apparently did not contest the issue of disability, the Court’dicta is nevertheless
informative.
44
disorder that caused pain and atrophy in one leg, was “ individual with a disability as
an
id.
defined in the Americans with Disabilities Act of 1990,” at 668, describing the fact that
although he could still walk more than a mile during a round of golf, id. at 673, he could no
longer walk an entire 18-hole course. Id. at 668. Moreover, walking not only caused him
pain, fatigue, and anxiety, but also created a risk of amputation. Id. at 668. Therefore, the
fact that an impairment is serious enough to cause a permanent limp may well support a
finding of disability.
In Belk v. Southwestern Bell Telephone Co., 194 F.3d 946 (8th Cir. 1999), the plaintiff
wore a leg brace as a result of childhood polio. The court stated:
SWB argues under Sutton that Belk is not “ for
disabled” purposes of the [ADA]
because he can walk and engage in many physical activities with the use of his
leg brace. SWB points out that Belk himself admitted at trial that he coaches
Little League, hunts, fishes, and has built a garage and an addition to his home.
s
We reject SWB’argument. The Sutton Court stated that the mere use of a
corrective device alone is not enough to relieve an individual of a disability;
rather, “ has a disability under subsection A if, notwithstanding the use of
one
a corrective device, that individual is substantially limited in a major life
activity.” In this case, it can hardly be disputed that Belk is disabled in the
major life activity of walking. The full range of motion in his leg is limited by
the brace, and his gait is hampered by a pronounced limp. These
considerations abide by the language in Sutton which directs courts to
contemplate the negative side effects of mitigating measures, as well as the
positive, in determining disability. Unlike the petitioners in Sutton, Belk’ s
brace does not allow him to function the same as someone who never had polio.
Therefore, he is clearly “ as
disabled” defined by the ADA.
Id. at 950 (citations omitted). Similarly, in Johnson v. Maryland, 940 F. Supp. 873 (D. Md.
1996), aff'd per curiam, 1997 WL 240823 (4th Cir. 1997) (unpublished), the court found that
an ADA plaintiff who walked with a limp as a result of an hereditary disease had
45
demonstrated a genuine issue of material fact that he was substantially limited in the major
life activity of walking. The court stated:
Johnson indicates that Charcot-Marie-Tooth disease causes him to walk with
a limp, and walking is considered a major life activity under the ADA.
29 C.F.R. § 1613.702(c). Drawing all justifiable inferences in Johnson's favor,
the Court finds that Johnson's walking with a limp constitutes a substantial
limitation of a major life activity and thus a disability under the ADA for
purposes of the Motion for Summary Judgment.
Id. at 877 (emphasis added).
The City Failed To Prove Conclusively That Davis Is Not Substantially Limited In
The Major Life Activities Of Lifting, Climbing Stairs, and Working
The testimony and records of Doctor Blue previously discussed demonstrate that Davis
qualifies as a person with a disability on the basis of substantial limitations on his ability to
lift and climb stairs. Gillen v. Fallon Ambulance Service, Inc., 283 F. 3d 11, 21 (1st Cir.
949
2002) (lifting); Fjellestad v. Pizza Hut of America, Inc., 188 F. 3d 944, 948– (8th Cir.
1999) (lifting); Nodelman v. Gruner & Jahr USA Pub., 2000 WL 502858, at *7 (S.D.N.Y.
2000) (using stairs).
Under Little the question is whether the City has conclusively established that Davis
is not significantly restricted compared to the average person in the general population. Little,
supra, 148 S.W.3d at 383. On the basis of this test, Davis has a disability in these areas.
Even if no one limitation were substantial (which they are here, under proper summary
judgment standards), the City would also have to prove that they are not substantially limiting
s
when taken in the aggregate. Switala v. Schwan’Sales Enterprise, 231 F. Supp. 2d 672, 681
(N.D. Ohio 2002) (court “
must consider whether plaintiffs impairments, together or
46
);
separately, prevent or severely restrict him from [major life] activities” Testerman v.
Chrysler Corp., 1997 WL 820934, at *12 n.27 (D. Del. Dec. 30, 1997) (even when an
individual has impairments that do not independently substantially limit him, the combination
of the impairments may, citing 29 C.F.R. Pt. 1630, App. § 1630.2(j)); Deghand v. Wal-Mart
An
Stores, Inc., 926 F. Supp. 1002, 1012 (D. Kan. 1996) (“ impairment or a combination of
impairments are considered disabling if they substantially limit one or more of a persons
);
major life activities” Haysman v. Food Lion, Inc., 893 F. Supp. 1092, 1100 (S.D. Ga. 1995)
Multiple impairments that combine to limit an individual’ major life activities also
(“ s
);
constitute a disability.” 29 C.F.R. Pt. 1630, App § 1630.2(j); EEOC Compliance Manual §
902.4(e), http://www.eeoc.gov/policy/docs/902cm.html; Questions & Answers About Persons
with Intellectual Disabilities in the Workplace and the Americans with Disabilities Act,
Question 1 (second example) (EEOC Oct. 20, 2004), http://www.eeoc.gov/facts/intellectua
l_disabilities.html. See also Kriskovic v. Wal-Mart Stores, Inc., 948 F. Supp. 1355, 1365
(E.D. Wis. 1996) (agreeing with plaintiff that various “
impairments may in combination
but
substantially limit a major life activity,” finding insufficient proof in this case).
The City fails to even attempt such an analysis. Instead, the City argues that Davis
s
does not have a disability under Texas law by taking the effect of Davis’multiple sclerosis
on different activities one-by-one and claiming that none of them rises to the level of
substantial interference with a major life activity.
s
The City’ approach also fails to take into account the overall effect of multiple
s
sclerosis on Davis’ ability to perform the major life activity of working. Although he
47
continues to be able to perform work with limited physical requirements, he is precluded from
s
doing any work that requires sustained strenuous activity. Dr. Blue’letters to the City focus
s
on Davis’ ability to perform as a firefighter/paramedic, but the limitations she recites
preclude Davis from doing a wide range of jobs, and in effect restrict him to sedentary work.43
He therefore qualifies as an individual with a disability on the basis of the effect of multiple
sclerosis on his ability to work.
This Court considered the requirements for proving a substantial limitation in working
in Haggar Apparel Co. v. Leal, 154 S.W.3d 98, 100 (Tex. 2004). The Court followed both
EEOC guidance and federal case law. Davis does not contend otherwise. The relevant EEOC
regulation states: “ term substantially limits means significantly restricted in the ability
The
to perform either a class of jobs or a broad range of jobs in various classes as compared to the
average person having comparable training, skills and abilities. The inability to perform a
single, particular job does not constitute a substantial limitation in the major life activity of
29
working.” C.F.R. § 1630.2(j)(3)(i).
Davis is therefore disqualified from at least one entire class of jobs—those involving
heavy labor.44 Davis is also unable to work in a broad range of jobs. He cannot work in any
43
The telecommunications job that the City could have transferred Davis into was basically
a sedentary job. Sandy Ferris described the physical requirements of the job in her deposition as
“physically not very taxing.”The most strenuous activity involves occasional lifting of fifty pound
packages of paper. (Ferris Dep., 9, R. at 477.) Davis has the physical capacity to lift objects of up
to fifty pounds occasionally, but cannot repetitively lift objects that weigh forty to fifty pounds. (Davis
Aff., R. at 133.)
44
For
Heavy labor is a class of jobs. See 29 C.F.R. Part 1630 App. § 1630.2(j) (“ example,
an individual who has a back condition that prevents the individual from performing any heavy labor
48
job requiring him to engage in strenuous physical activity, or in other activities that violate
the restrictions set by Dr. Blue or the physical limitations he himself has noted. These
restrictions preclude him from doing any work requiring sustained physical effort, and
encompass a huge range of work activities. (Davis Aff., R. at 133; Dr. Blue Dep., R. at 490,
506, 511, 512, 514, 517.) For this reason, Davis has a
491; Exhibits 1, 3, 4, 5; R. at 504–
disability in the major life activity of working. More to the point under Texas summary
judgment practice, the City has failed to prove conclusively that he is not.
CONCLUSION AND PRAYER
s
There being insufficient merit to the City’contentions that this Court should grant
review, the Petition for Review should be denied. In the event the petition is granted, this
Court should affirm the judgment of the Court of Appeals in part, recognizing the major life
activity of running and the inapplicability of McDonnell Douglas to failure-to-accommodate
claims; should reverse in part, finding that the City failed to conclusively prove Davis is not
substantially limited in walking; and should remand the case to the Court of Appeals for
s
further proceedings consistent with those holdings, and for consideration of Davis’points
of error as to whether he is substantially limited in the major life activities of lifting, climbing
stairs, and working. Respondent James Davis further prays for such other and further relief
to which he may be entitled at law or in equity.
s
job would be substantially limited in the major life activity of working because the individual’
);
impairment eliminates his or her ability to perform a class of jobs.” EEOC Compliance Manual §§
902.4(c) and 902.8(f) (similar), http://www.eeoc.gov/policy/docs/902cm.html; Tzoumis v. Tempel
12
Steel Co., 1999 WL 1101257, at *11– (N.D. Ill. Dec. 1, 1999).
49
Respectfully submitted,
ADVOCACY, INCORPORATED
LAURANCE L. PRIDDY
SBN 16323000
Advocacy, Incorporated
1420 W. Mockingbird, Suite 450
Dallas, Texas 75247
(214) 630-0916 (Phone)
(214) 630-3472 (Fax)
By: _________________________________
BRIAN EAST
SBN 063609800
Advocacy, Incorporated
7800 Shoal Creek Blvd., Suite 171-E
Austin, Texas 78757
(512) 454-4816 (Phone)
(512) 454-3999 (Fax)
ATTORNEYS FOR RESPONDENT
50
CERTIFICATE OF SERVICES
I hereby certify that on this 31st day of October, 2006, I sent a true and correct copy
of the foregoing by U.S. Postal Service, certified mail, return receipt requested to:
W. Andrew Messer CMRRR No.7005 2570 0002 2377 0331
Attorney at Law
6947 Main Street
Frisco, TX 75034
_____________________________
Brian East
51
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