Dillard v. SNC-Lavalin Eng'rs & Constructors Inc.

• Decision Date: 27 May 2021
• Docket Number: NO. 01-20-00372-CV,01-20-00372-CV
• Citation: 629 S.W.3d 692
• Parties: Kirk DILLARD, Appellant v. SNC-LAVALIN ENGINEERS & CONSTRUCTORS INC., Appellee
• Court: Texas Court of Appeals

629 S.W.3d 692

Kirk DILLARD, Appellant

v.SNC-LAVALIN ENGINEERS & CONSTRUCTORS INC., Appellee

NO. 01-20-00372-CV

Court of Appeals of Texas, Houston (1st Dist.).

Opinion issued May 27, 2021

Scott Robert McLaughlin, Houston, John Hays, for Appellee.

David James Manley, Houston, for Appellant.

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

OPINION

Gordon Goodman, Justice

Kirk Dillard sued his former employer, SNC-Lavalin Engineers & Constructors Inc., for disability discrimination, alleging that SNC-Lavalin unlawfully refused to reasonably accommodate his diabetes. SNC-Lavalin moved for summary judgment, which the trial court granted. On appeal, Dillard argues the trial court erred because the evidence raises a genuine issue of material fact as to each essential element of his discrimination claim. We affirm.

BACKGROUND

Dillard worked for SNC-Lavalin as a mechanical designer/checker. As part of his employment, Dillard was selected to take an alcohol test. Dillard took a breathalyzer test, which showed he had a blood alcohol content of 0.07. About 15 minutes later, Dillard took a second breathalyzer test, which showed he had a blood alcohol content of 0.05. Dillard requested an alternative test, either a urine or blood test

, as an accommodation for his diabetes. SNC-Lavalin denied Dillard's request and later fired him for violating the company's alcohol policy.

Dillard sued, contending that SNC-Lavalin violated the Texas Commission on Human Rights Act by refusing to administer an alternative alcohol test. See TEX. LAB. CODE §§ 21.001 –.556. Dillard alleged that as a diabetic, he could give false positive breathalyzer test results due to ketoacidosis—a potential effect of diabetes

that can cause the production of acetones in the breath—and that his diabetes qualified as a disability requiring reasonable accommodation under the TCHRA.

SNC-Lavalin moved for traditional and no-evidence summary judgment in a single motion. SNC-Lavalin sought traditional summary judgment on the ground that the evidence showed a third-party administrator randomly selected Dillard for alcohol testing and tested him. It also argued that Dillard could not prevail on his disability discrimination claim because he had no evidence that:

• his diabetes-related ketoacidosis

qualified as a disability;

• he notified the third-party test administrator that he suffered from diabetes-related ketoacidosis ; or

• his requested accommodation would have assisted him in performing the essential functions of his job.

In addition, SNC-Lavalin maintained that Dillard's requested accommodation was not a reasonable one because it would have required the third-party test administrator to violate its testing procedures as well as standards established by the Department of Transportation.

Dillard filed a response opposing summary judgment. The sole evidence he included with his response was his own declaration. In it, Dillard stated he had not been drinking when he took the breathalyzer tests that showed he had alcohol in his blood. He further stated he had been diagnosed with diabetes

and required medication to control its symptoms. Dillard also explained that "a typical breathalyzer test may result in a false positive reading" because "a well-documented byproduct" of diabetes "is a state called ketoacidosis, which causes the production of acetones in the breath." Dillard stated that "after the breathalyzer test indicated alcohol was present" in his blood, he spoke with the person administering the test as well as two company supervisors to request a urine or blood test as a reasonable accommodation for his diabetes. But, Dillard stated, they denied his request.

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

caused Dillard's positive test results, save Dillard's declaration, which SNC-Lavalin moved to strike as a sham.

The trial court did not strike Dillard's declaration as a sham but nonetheless granted summary judgment in SNC-Lavalin's favor. Dillard appeals.

DISCUSSION

Standard of Review

We review summary judgments de novo. Cypress Creek EMS v. Dolcefino , 548 S.W.3d 673, 683 (Tex. App.—Houston [1st Dist.] 2018, pet. denied). When, as here, a party moves for both traditional and no-evidence summary judgment, we first review the trial court's ruling under the no-evidence standard. Id.

After adequate time for discovery, a party may move for summary judgment on the basis that there is no evidence to support one or more essential elements of the nonmovant's claim. TEX. R. CIV. P. 166a(i) ; Cypress Creek , 548 S.W.3d at 684. The trial court must grant no-evidence summary judgment unless the nonmovant responds by producing competent summary-judgment evidence raising a genuine issue of material fact as to each challenged element. TEX. R. CIV. P. 166a(i) ; Cypress Creek , 548 S.W.3d at 684.

The standard of review mirrors legal-sufficiency review. Cypress Creek , 548 S.W.3d at 684. Thus, we will affirm a no-evidence summary judgment when there is a complete absence of evidence of a vital fact, the court is barred by rules of law or evidence from giving weight to the sole evidence offered to prove a vital fact, the evidence offered to prove a vital fact is no more than a mere scintilla, or the evidence conclusively shows the opposite of a vital fact. Id. We consider the evidence in the light most favorable to the nonmovant. Id.

To obtain traditional summary judgment, a party must show that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law. TEX. R. CIV. P. 166a(c). If the movant does so, then the burden shifts to the nonmovant to raise a genuine issue of material fact. Vertex Servs. v. Oceanwide Houston , 583 S.W.3d 841, 848 (Tex. App.—Houston [1st Dist.] 2019, no pet.).

If a party objects to a summary-judgment declaration but does not obtain a ruling, it waives any complaint involving a defect in the declaration's form. Clarendon Nat'l Ins. Co. v. Thompson , 199 S.W.3d 482, 490 n.7 (Tex. App.—Houston [1st Dist.] 2006, no pet.). But a party may raise complaints involving defects in the declaration's substance, such as a complaint that the declaration is conclusory and thus no evidence, even if it did not obtain a ruling. Id.

Conclusory statements—those that do not supply the underlying facts supporting a given representation—do not raise an issue of fact precluding summary judgment. Fortitude Energy v. Sooner Pipe , 564 S.W.3d 167, 183 (Tex. App.—Houston [1st Dist.] 2018, no pet.). Likewise, a declaration that merely repeats the allegations in the pleadings does not raise an issue of fact. Id.

Applicable Law

The TCHRA prohibits employment discrimination on the basis of disability. LAB. §§ 21.051, 21.105. Under the TCHRA, "disability" means "a mental or physical impairment that substantially limits at least one major life activity" or "a record of such an impairment" or "being regarded as having such an impairment." Id. § 21.002(6). This includes an impairment that is episodic in nature but "substantially limits a major life activity when active." Id. § 21.0021(a)(2).

Major life activities include "caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working." Id. § 21.002(11-a). Major life activities also encompass "the operation of a major bodily function," like "functions of the immune system, normal cell growth, and digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions." Id.

In deciding whether an impairment substantially limits a major life activity, we must do so "without regard to the ameliorative effects of mitigating measures," including medication. Id. § 21.0021(b). More generally, we must construe the term disability "in favor of broad coverage of individuals" in employment-discrimination suits "to the maximum extent allowed" by the applicable statutory provisions. Id. § 21.0021(a)(1).

It is unlawful for an employer subject to the anti-discrimination provisions of the TCHRA "to fail or refuse to make a reasonable workplace accommodation to a known physical or mental limitation of an otherwise qualified" employee with a disability, unless the employer "demonstrates that the accommodation would impose an undue hardship on the operation of the business." Id. § 21.128(a).

To prevail on a claim that an employer failed or refused to make a reasonable accommodation, an employee-plaintiff must prove that:

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

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

(3) with reasonable accommodation he could perform his job's essential functions; and

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

Donaldson v. Tex. Dep't of Aging & Disability Servs. , 495 S.W.3d 421, 439 (Tex. App.—Houston [1st Dist.] 2016, pet. denied).

Finally, in applying the anti-discrimination provisions of the TCHRA, we are mindful that one of their purposes is to implement the policies embodied in Title I of the Americans with Disabilities Act and its amendments, which address employment discrimination. LAB. § 21.001(3). Thus, federal decisions interpreting the ADA may guide our interpretation of the TCHRA. Primeaux v. Conoco, Inc. , 961 S.W.2d 401, 403 n.2 (Tex. App.—Houston [1st Dist.] 1997, no writ).

Analysis

In the trial court, SNC-Lavalin's no-evidence motion challenged the first three elements of Dillard's reasonable-accommodation claim—disability status, notice of disability, and the existence of a reasonable accommodation. On appeal, Dillard argues that he introduced more than a scintilla of evidence as to each element.

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

Disability Status

Dillard argues that a genuine issue of material fact exists as to the first element of his claim, which is...