Little v. Texas Dept. of Criminal Justice

• Decision Date: 15 October 2004
• Docket Number: No. 03-0498.,03-0498.
• Citation: 148 S.W.3d 374
• Parties: Evelyn LITTLE, Petitioner, v. TEXAS DEPARTMENT OF CRIMINAL JUSTICE and Gary Johnson, Director, Respondents.
• Court: Texas Supreme Court

148 S.W.3d 374

Evelyn LITTLE, Petitioner, v. TEXAS DEPARTMENT OF CRIMINAL JUSTICE and Gary Johnson, Director, Respondents.

No. 03-0498.

Supreme Court of Texas.

Argued on September 8, 2004.

Decided October 15, 2004.

Cynthia L. Biggers, Austin, Donald M. Bishop, Brentwood, Stephen Yelenosky, Austin, and John Griffin Jr., Houston Marek & Griffin, L.L.P., Victoria, for Petitioner.

Adrian L. Young, Greg Abbott, Attorney Gen., Robert Bruni Maddox, Jay T. Kimbrough, Phillip E. Marrus, Barry Ross McBee, John A. Neal, Chief Prosecutor, Edward D. Burbach and David A. Talbot Jr., Office of Attorney General, Austin, for Respondent.

Brian East, Advocacy, Inc., Austin, Amicus Curiae Coalition of Texas with Disabilities.

Justice SMITH delivered the unanimous opinion of the Court.

Section 21.051 of the Labor Code provides that "[a]n employer commits an unlawful employment practice if because of race, color, disability, religion, sex, national origin, or age the employer: (1) fails or refuses to hire an individual...." Tex. Lab.Code § 21.051 (emphasis added). For purposes of chapter 21 of the Labor Code, the term "disability" means "with respect to an individual, a mental or physical impairment that substantially limits at least one major life activity of that individual, a record of such an impairment, or being regarded as having such an impairment...." Id. § 21.002(6) (emphasis added).

The question in this case is whether the plaintiff-petitioner, whose left leg has been amputated at the knee, produced legally sufficient evidence that, at the time of the adverse employment actions of which she complains, she had a "disability." More specifically, the question is whether there is any probative summary judgment evidence that Evelyn Little, who wears a prosthesis on her left leg and walks with a noticeable limp, had at that time a "physical impairment that substantially limit[ed] at least one major life activity."

The trial court granted the defendants' motion for summary judgment. The court of appeals affirmed, concluding that Little had "failed to make a threshold showing that she has a disability." 147 S.W.3d 421, 425. We will reverse and remand to the court of appeals.

I

In 1983, the Legislature enacted the Commission on Human Rights Act (CHRA). See CHRA, 68th Leg., 1st C.S., ch. 7, 1983 Tex. Gen. Laws 37 (compiled as Tex.Rev.Civ. Stat. Ann. art. 5221k). The CHRA created the Commission on Human Rights and designated it the state agency responsible for administering the statute. Id. §§ 3.01(a), 3.02.

Under the CHRA, as enacted, employers and other covered entities were generally prohibited from discriminating against an individual "because of race, color, handicap, religion, sex, national origin, or age" with respect to hiring and other employment actions. Id. §§ 5.01-5.03. The CHRA, as enacted, provided:

"Handicap" means a condition either mental or physical that includes mental retardation, hardness of hearing, deafness, speech impairment, visual handicap, being crippled, or any other health impairment that requires special ambulatory devices or services, as defined in Section 121.002(4), Human Resources Code, but does not include a condition of addiction to any drug or illegal or federally controlled substances or a condition of addiction to the use of alcohol.

Id. § 2.01(7)(B).

In 1987, in Chevron Corp. v. Redmon, 745 S.W.2d 314 (Tex.1987), this Court construed the term "handicap." Redmon, after being denied employment as a maintenance helper, sought relief under the CHRA. The vision in one of her eyes could not be corrected to better than 20/60, and it was undisputed that she was not hired because of her vision. Id. at 315. The Court determined as a matter of law that she was not "handicapped," concluding that "Redmon's minor visual problems do not constitute those severe barriers to employment or other life functions which necessitate protection by the State." Id. at 318. With regard to legislative intent, the Court stated: "[T]he legislature obviously chose not to employ the definition of `handicap' in the federal Rehabilitation Act, 29 U.S.C. § 701-796i." Id.

In 1988, the Sunset Advisory Commission issued a report that, inter alia, recommended that "[t]he definition of handicap in the Texas Commission on Human Rights Act should be changed to continue the broad interpretation under which the commission ha[d] operated" before Chevron Corp. v. Redmon and that "[t]he definition should be generally patterned after the language used by the federal government in the Federal Rehabilitation Act of 1973." TEX. SUNSET ADVISORY COMM'N, TEX. COMM'N ON HUMAN RIGHTS: STAFF REPORT 49 (1988) (available at Legislative Reference Library).

In 1989, the Legislature enacted sunset review legislation for the Commission on Human Rights. See Act of May 29, 1989, 71st Leg., R.S., ch. 1186, 1989 Tex. Gen. Laws 4824. The enactment replaced the term "handicap" with "disability" throughout the CHRA and provided: "`Disability' means a mental or physical impairment that substantially limits at least one major life activity or a record of such a mental or physical impairment...." Id. § 3, sec. 2.01(4), at 4824. Cf. Holt v. Lone Star Gas Co., 921 S.W.2d 301, 305 (Tex.App.-Fort Worth 1996, no writ) ("[T]he 1989 changes in the TCHRA have lowered the threshold at which we will find discrimination from a person who is handicapped to a person who merely suffers from a disability...."). According to the available legislative history, the Legislature purposely adopted the federal statutory language. See, e.g., SENATE GOV'T ORG. COMM., BILL ANALYSIS (May 10, 1989), Tex. S.B. 479, 71st Leg., R.S. (1989) (available at Legislative Reference Library) ("The purpose of this bill is to make the statutory modifications recommended by the Sunset Advisory Commission and other changes regarding TCHR. Generally, modifications proposed by this bill: ... define `disability' to reflect part of the definition of `individual with handicaps' in the Federal Rehabilitation Act of 1973....").

In 1990, Congress enacted the Americans with Disabilities Act (ADA). Pub.L. No. 101-336, 104 Stat. 327 (codified at 42 U.S.C. §§ 12101-12213). Under Title I of the ADA, employers and other covered entities are generally prohibited from discriminating "against a qualified individual with a disability because of the disability of such individual" in regard to hiring and other employment actions. 42 U.S.C. § 12112(a). Section 12102(2) of the ADA provides: "The term `disability' means, with respect to an individual — (A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment." Id. § 12102(2); see also Sutton v. United Air Lines, Inc., 527 U.S. 471, 478, 119 S.Ct. 2139, 144 L.Ed.2d 450 (1999) ("[T]o fall within this definition one must have an actual disability (subsection (A)), have a record of a disability (subsection (B)), or be regarded as having one (subsection (C)).").

In 1993, the Legislature amended "the Commission on Human Rights Act to bring it into compliance with the Civil Rights Act of 1991 and the Americans with Disabilities Act." SENATE RESEARCH CTR., BILL ANALYSIS (Aug. 4, 1993), Tex. H.B. 860, 73rd Leg., R.S. (1993) (available at Legislative Reference Library). The enactment modified the definition of "disability" contained in the CHRA to conform it with the ADA definition. See Act of May 14, 1993, 73rd Leg., R.S., ch. 276, § 2, sec. 2.01(4), 1993 Tex. Gen. Laws 1285, 1285.

Also in 1993, as part of the state's continuing statutory revision program, part of the CHRA was codified in the Labor Code. See Labor Code, 73rd Leg., R.S., ch. 269, § 1, 1993 Tex. Gen. Laws 987, 991-1004. The remainder of the CHRA was transferred to the Government Code. Id. § 2, at 1258-61. According to the relevant revisor's note:

The revised law omits as unnecessary the short title provision of the source law formerly found in V.A.C.S. Article 5221k, Section 1.01. The source law formerly known as the Commission on Human Rights Act is now codified in part as Chapter 461, Government Code, and in part as Chapter 21, Labor Code. The omitted source law reads: "Art. 5221k. Sec. 1.01. This Act may be cited as the Commission on Human Rights Act."

2 TEX. LEGISLATIVE COUNCIL, LABOR CODE, REVISOR'S REPORT 1216 (1993) (available at Legislative Reference Library). In addition, the Commission on Human Rights was recently abolished and its powers and duties were transferred to the newly-created Civil Rights Division of the Texas Workforce Commission. See Act of May 30, 2003, 78th Leg., R.S., ch. 302, 2003 Tex. Gen. Laws 1279.¹ Accordingly, we will not refer to chapter 21 of the Labor Code as the Commission on Human Rights Act.

II

In her first amended original petition, Evelyn Little sought relief under chapter 21 of the Labor Code against the Texas Department of Criminal Justice and Gary Johnson, in his official capacity as executive director of the Texas Department of Criminal Justice.² In part five of the pleading, entitled "Facts," Little alleged:

Plaintiff, Evelyn Little, has a visible disability, which is the loss of the left leg at the knee. She wears a full leg prosthesis and has a limp.

Ms. Little has been unlawfully denied employment by Defendants as a result of her disability.

Ms. Little is an experienced Food Service Manager, having served as food manager at nationally recognized restaurants (Air Host, Sky Host, Ramada Inn and Howard Johnson's Inns). She has supervisory experience. She can handle physically demanding work and has worked 8 to 16 hour shifts without a break. She is mature (48 and 49 years old at the time she was applying for the jobs as Food Manager at Defendant TDCJ's various locations).

Ms. Little completed the application and interview process for Food Service Manager positions at TDCJ over 20 times from 1995 t...