Thomann v. Lakes Regional Mhmr Center

• Decision Date: 18 April 2005
• Docket Number: No. 05-04-00203-CV.,05-04-00203-CV.
• Citation: 162 S.W.3d 788
• Parties: Susan Lorraine THOMANN, Appellant, v. LAKES REGIONAL MHMR CENTER, Appellee.
• Court: Texas Supreme Court

162 S.W.3d 788

Susan Lorraine THOMANN, Appellant, v. LAKES REGIONAL MHMR CENTER, Appellee.

No. 05-04-00203-CV.

Court of Appeals of Texas, Dallas.

April 18, 2005.

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John E. Wall, Jr., Jennifer Scherf, Law Offices of John E. Wall, Jr., Dallas, for appellant.

Joel E. Geary, Brown McCarroll, L.L.P., Dallas, for appellee.

Before Justices WRIGHT, FITZGERALD and LANG-MIERS.

OPINION

Opinion by Justice LANG-MIERS.

Susan Lorraine Thomann appeals the summary judgment granted in favor of Lakes Regional MHMR Center (Lakes Regional) dismissing her claims of employment discrimination and retaliation. We affirm.

BACKGROUND

Lakes Regional provides professional medical and psychological assistance to citizens with ongoing problems caused by mental illness, developmental delays, mental retardation or substance abuse. It operates two group homes in Terrell, Texas referred to as the Ninth Street home and the Park Street home. These group homes offer permanent living facilities for individuals who are not physically or mentally capable of living by themselves. The homes are staffed by employees called house parents. Among the job requirements for house parents is the ability to lift a minimum of 44 pounds. House parents are hired as "flexible staff" because they may be required to cover shifts and locations other than their regular assignments in emergency situations.

The Ninth Street home houses females who, for the most part, are not ambulatory and need assistance in the daily activities of living, such as bathing, dressing, and eating. The Park Street home houses males, all of whom have at least one severe mental illness or physical limitation, and are more ambulatory than the females at the Ninth Street home.

In December 1998, Lakes Regional hired Thomann as a house parent and assigned her to the day shift at the Ninth Street home.¹ In June 1999, Thomann underwent a total left knee replacement² and returned to her regular job and duties at the Ninth Street home in September of that year. In September 2000, Thomann underwent back surgery for degenerative disc disease. Three months later, Thomann was ready to return to work but told her supervisor that she was no longer physically able to work the day shift at the Ninth Street home because of her limited ability to lift, bend and turn. Thomann traded positions with a worker at the Park Street home and returned to work in December 2000 on the night shift at the Park Street home. Her doctor's return to work capacity report restricted her to "light duty" and stated she could not lift over twenty pounds or lift patients. Upon reading the doctor's release, Kim Doyal, residential director of Lakes Regional, told Thomann that Lakes Regional did not have any "light duty" positions. But Thomann continued to work the night shift at the Park Street home where the patients were ambulatory and her lifting requirements were minimal.

In October 2001, Doyal asked Thomann for a full-duty work release from her doctor. This request sparked a dispute between Doyal and Thomann culminating in a functional capacity assessment (FCA) that was conducted in January 2002 to determine whether Thomann had any physical limitations that would prevent her from obtaining a full-duty medical release. Following the FCA, Thomann's doctor released her to "light work per Functional Capacity Assessment," which restricted her to lifting and carrying no more than twenty pounds at a time. Meanwhile, in December 2001, Thomann made an internal complaint to the Lakes Regional human resources department against Doyal alleging that Doyal was discriminating against her based on her disability because, in November, Doyal had asked Thomann to cover a position at the Ninth Street home.³

On February 14, 2002, Thomann met with several officers of Lakes Regional who informed her that she could not continue to work in the house parent position because of her lifting restrictions but offered her an opportunity to apply for a position as a receptionist. She rejected the offer. Lakes Regional's executive director also called Thomann and, without requiring her to apply for it, offered her the receptionist position. He confirmed the offer in writing, stating the receptionist position was at the same grade level as her job as house parent and would be a lateral move. The letter advised Thomann that the position would be held open for a week. After receiving no response to the letter by the end of that week, Lakes Regional terminated Thomann's employment.

The next month Thomann filed a charge of discrimination with the Texas Commission on Human Rights (TCHR) and the Equal Employment Opportunity Commission (EEOC) alleging that Lakes Regional terminated her employment because she was disabled and because she complained to Lakes Regional about its treatment of her. The TCHR dismissed Thomann's claim stating "further investigation will not result in a Cause Finding." The EEOC concluded that "evidence obtained during the investigation does not establish a violation of the statute." Thomann then filed this lawsuit in district court alleging Lakes Regional violated sections 21.051 and 21.055 of the Texas Labor Code by terminating her employment based on her disability and retaliating against her because she made an internal complaint. Lakes Regional filed a motion for traditional and no-evidence summary judgment on both claims, which the trial court granted. Thomann's motion for reconsideration was overruled.

Thomann raises four issues on appeal. In her first, second and fourth issues, Thomann argues the trial court erred in granting Lakes Regional's motion for summary judgment because there are genuine issues of material fact regarding her claims for discrimination and retaliation and the trial court erred because it considered the summary judgment evidence in the light most favorable to the movant as opposed to the non-movant. In her third issue, Thomann argues the trial court erred in overruling her objections to the affidavits in support of Lakes Regional's summary judgment. Thomann argues all four issues together. We consider her third issue first.

TRIAL COURT'S RULINGS ON SUMMARY JUDGMENT EVIDENCE

In Thomann's third issue, she argues the trial court erred in overruling her objections to Lakes Regional's summary judgment evidence. She argues that "all of the [a]ffidavits contained hearsay information and none of them demonstrated a basis for personal knowledge...." She also argues the claims made in the affidavits contradict Lakes Regional's letter of termination and contained conclusory assertions. But Thomann fails to identify the objectionable portions of the affidavits, she does not identify the statements in the affidavits which she complains contained hearsay or which affidavits are not based on personal knowledge, and she fails to identify which affidavit contradicts the letter of termination or why this makes the affidavit objectionable. A general directive to review affidavits for hearsay and impermissible conclusions is not sufficient to direct our attention to the error about which Thomann complains. See Tex. R.App. P. 38.1(h); see also Most Worshipful Prince Hall Grand Lodge v. Jackson, 732 S.W.2d 407, 412 (Tex.App.-Dallas 1987, writ ref'd n.r.e.); Ferguson v. DRG/Colony N., Ltd., 764 S.W.2d 874, 887 (Tex.App.-Austin 1989, writ denied). We decide Thomann's third issue against her.

We now turn to Thomann's first, second, and fourth issues.

STANDARD OF REVIEW FOR SUMMARY JUDGMENT

We review a grant of summary judgment de novo. Dickey v. Club Corp. of Am., 12 S.W.3d 172, 175 (Tex.App.-Dallas 2000, pet. denied). The standard of review in traditional summary judgment cases is well established. The issue on appeal is whether the movant met its summary judgment burden by establishing that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law. Tex.R. Civ. P. 166a(c); S.W. Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex.2002). The movant bears the burden of proof and all doubts about the existence of a genuine issue of material fact are resolved against the movant. Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex.1985). All evidence and any reasonable inferences must be viewed in the light most favorable to the non-movant. Nixon, 690 S.W.2d at 548-49. Evidence favoring the movant's position will not be considered unless it is not controverted. Great Am. Reserve Ins. Co. v. San Antonio Plumbing Supply Co., 391 S.W.2d 41, 47 (Tex.1965). A defendant is entitled to summary judgment if it conclusively negates an essential element of the plaintiff's case or conclusively establishes all necessary elements of an affirmative defense. Cathey v. Booth, 900 S.W.2d 339, 341 (Tex.1995).

In a no-evidence summary judgment, a party moves for summary judgment on the ground that there is no evidence of one or more essential elements of a claim on which the adverse party has the burden of proof. Tex.R. Civ. P. 166a(i). The burden then shifts to the non-movant to produce summary judgment evidence raising a genuine issue of material fact. Tex.R. Civ. P. 166a(i); Hartis v. Mason & Hanger Corp., 7 S.W.3d 700, 702 (Tex. App.-Amarillo 1999, no pet.).

We review a no-evidence summary judgment under the same standard as a directed verdict. King Ranch v. Chapman, 118 S.W.3d 742, 750-51 (Tex. 2003). Accordingly, we examine the record in the light most favorable to the non-movant and disregard all contrary evidence and inferences. Id.; Wal-Mart Stores, Inc. v. Rodriguez, 92 S.W.3d 502, 506 (Tex.2002). If the non-movant produces more than a scintilla of probative evidence to raise a genuine issue of material fact, then summary judgment is improper. Tex.R. Civ. P. 166a(i); Wal-Mart, 92 S.W.3d at 506. A party produces less than a scintilla of evidence when the evidence is "so weak as to do no more than create a mere...