### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-12-00295- CV

Cynthia A. Smith, Appellant

v. City of Austin , Appellee

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 126 TH JUDICI AL DISTRICT NO. D-1 -GN-1 1-0 0164 6, H ONO RAB LE GISELA D. TRI ANA, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N
Cy nthia A. Smit h appea ls th e t rial court’s summary judgme nt in favor of the City
of Austin on her claims that the City violated the Americ ans with Disabilities Act (ADA ) and
the Texas C o m mission on Human Rights Act (TCHRA) in terminating her employ ment. For the following rea sons, we af

firm the trial c ourt’s judg ment. Smit h filed a lawsuit ag ainst the C ity alleg ing that it failed to provide a rea sonable

acc ommodation for her disability —major depre ssion and anxiety disorder—a nd instead terminated
her employ

ment as assistant pay

roll manag er afte r she failed three t i m es within eleve n months to timely submit the City ’s fede ral inco m e-ta x liability to the I RS, resulting in the City incurring a larg e tax penalty

(which w as later abate d). The City filed a c ombined no-evide nce a nd traditional
motion for summary judgme nt, asser ting that Smit h failed to establish a prima fa ci e ca s e fo r d i s cr imination by failure to acc ommodate. The trial court g rante d the City ’s summary -jud gm en tmotion without specif y i n g the basis for its decision. We will, there fore , aff irm if any of the
g rounds asser

ted in the City ’s motion has merit. Star-Telegram, Inc. v. Doe , 915 S.W .2d 471, 473 (Tex. 1995). When, as here , a party moves for sum m ary judgme nt on both traditional and
no-evide nce g ro u n d s , we first revie w the trial court’s decision under the no-evide nce standard.
Merriman v. XTO Energy, Inc. , 407 S.W .3d 244, 248 (Tex. 2013) (explaining that if nonmovant fails to pro d u ce l ega l l y sufficie nt evidenc e to meet burden for no-evide nce motion, there is no need to analy

ze whether movant satisfied burden under trad itional motion). When a movant files

a no-evide nce summary -judg ment motion stating the elements of the nonmovant’s claim on which
there is no evidence , the burde n shifts to the nonmovant to present or identify summary -judg ment evidenc e raising a g enuine issue of materia l fac t on the specifie d elements. Tex. R. Civ. P. 166a(i);
Mack Trucks, Inc. v. Tamez , 206 S.W .3d 572, 582 (Tex. 2006). A no-evide nce summary -judg ment motion is proper ly gra n t ed i f t h e nonmovant fails t o bring forth more than a scintilla of probative
evidenc e to raise a g enuine issue of materia l fac t on eac h g round wher e the nonmovant bear s the
b u rd en at trial and that is raised in the summary -judg ment motion. Jack son v. Fiesta Mart, In c. , 979 S.W .2d 68, 70-71 (Te x . App.—Austin 1998, no pet.). L ess t han a sc intill a of e vidence exis ts when the evidenc e is “so wea k as to do no more than cre ate a mere surm i s e o r s uspicion” of a fac t, and the leg al eff

ect is that there is no evidenc e. Kindred v. Con/Chem, Inc. , 650 S.W .2d 61, 63 (Tex. 1983).
To establish a prima fac ie case for an employ er’ s failure to acc ommodate a disability ,

a plaintiff must show that (1) she is a quali fi ed i n d i v i dual with a disability , (2) the disability and

2its co n s equential lim itations wer e known by the covered employ er, and (3) the employ er failed to

make rea sonable acc ommodations for such known limit ations. Feist v. Louisi ana, Dep’ t of Justice, Office of the Attorney Gen. , 730 F.3d 450, 452 (5th Cir. 2013). The threshold issue in a plaintiff’s prima fac ie case is a showing that she suffe rs from a disability , see Talk v. De l ta Airlines, Inc. , 165 F.3d 1021, 1024 ( 5th Cir. 1999) (per curia m), which the ADA and TCHRA define in releva nt part as “a phy sical or mental i mpairment t hat s ubstantially limit s one or more major life activities
of such individual,” see 42 U.S.C. § 12102(1)( A); Tex. L ab. Code § 21.002(6). Major life activities
in c lu d e c o n c e n tr a

ti n g , th in k in g , a n d w o r k in g
. 4 2 U

. S. C. § 1 2 1 0 2 ( 2 ) ( A )

. T h e Ci ty c h a ll e n g e d a ll th r e e elements of Smith’s prima fa cie c ase in its summary -judg ment motion. 1

The City arg

ues that the summary -judg ment rec ord entitled it to judgme nt as a matter of l aw because there is no evidenc e that Smit h informed the City of any limit ations cause d by her
mental illness or that, acc ording ly , the City knew that she was “disabled” as define d in the ADA.
See Taylor v. Principal Fin. Grp., Inc. , 93 F.3d 155, 163-64 (5th Cir. 1996) (to prove discrimination
in failure -to-ac commodate case , plaintiff must show that employ er knew of her substantial phy sical or mental limitation). “[I ]t is important to disting uish be tween an employ er’ s knowledg e of an employ ee’ s disability versus an employ er’ s knowledg e of any limit ations experience d by the employ ee a s a result of that disability .” Id. at 164. “[T] he ADA require s employ ers to re asonably

acc ommodate limit ations, not disabiliti es.” Id. “This is a critica l distinction, beca use the exis tence vel non of a disability or impairment is materia l to a rea sonable acc ommodation claim only insofar

Be cause the lang uag e of the TCHRA trac ks the ADA, if summary judgme nt is appropr iate 1 on a plaintiff’s ADA claims, it is also appropr iate on her TCHRA claims. See Lotti nger v. Shell Oil Co. , 143 F.Supp.2d 743, 752 (S.D. Tex. 2001). 3as it limit s an employ ee’ s ability to perf orm his or her job.” Burch v. Coca-Cola Co. , 119 F.3d 305, 314 (5th Cir. 1997).

Smit h’s lawsuit asser

ts that her depre ssion substantially limit s her major life function
of conce ntration. Howeve r, it was her bu rd en t o i d entify evidenc e supporting her asser tion that
her impairment indeed substantially l i m i t s t h at major life activity and that she informed the City
of such limit ation prior to her termination. See Taylor , 93 F. 3 d at 163-64; see also 42 U.S.C. § 12112(b)( 5)(A) (term “discriminate” includes not making rea sonable acc ommodations to known
p h y s i ca l or mental limit ations of otherwise qualified individual with disability ). I t is espec ial l y important that an employ ee notify her employ er of her specific limit at i o n s wher e the disability , resulting limit ations, and nece ssary rea sonable acc ommodations are not open, obvious, and
appar ent to the employ er, as is often the case when mental disabiliti es are involved. Taylor , 93 F.3d

at 165-66 (noting public policy dictates presumption that disabled employ ees are not limit ed in their
abilities to perf

orm t h ei r j o b s and that capa biliti es of qualified individuals are to be deter mined

on cas e- by -ca se basis). After our review of the record, we m ust ag ree with the C ity and hold that

t he trial court proper ly g rante d summary judgme nt on the basis that there is no evidenc e that t h e City knew Smith had any

limit ations that are cover ed by the ADA.
The summary -judg ment evidenc e indicates that Smit h made various vag ue
repr esenta tions to the City about how her mental illness might af fe ct her job perf

ormanc e but
prese nted no evidenc e that she was, in fac t, limit ed in her ability to conce ntrate due to the condition. Despite various attempts by the City to g lean from Smit h possible rea s o n s for her tax-pay ment failure s, Smi th did not mention that she suffe red from depre ssion or that it may

have impair ed her

4conce ntration until afte r she rec eived a pre- termination letter from the C ity on Novembe r 9 , 2009

reque sting further information to be considere d in making the final termination decision. I n reply , Smit h submitt ed a le tter stating ,

I believe that my lack of adher en ce t o ever y detail in my work is a result of my mental health. As ca n be seen from the attache d letter from my doctor, I have been strug g ling with de pression for over two y ear s. A sign of depr ession is lack of conce ntration. Even throug h my illness, I have soug ht to rema in a positive producing employ ee. I h o pe y ou will take this cruc ial information into consideration as y ou delibera te my

fate with the City

.

Her attache d doctor’s note stated, “Cy nthia Smit h has b een under my car e for the trea tment of depre ssion and anxiety since September 2006. Her depre ssion has not been fully controlled for about
18 months. This has resulted in sever al medication chang es and adjustments without a full response
. Please take this int o consideration in evaluating her w ork per formanc e.”

Shortly there afte r, Smit h submitt ed another letter to the City listi ng the rea sons why
her e mploy

ment should not be terminated. Among them was the f ollowing:

I have a medical condition which could affect my work perf ormanc e and contribute to the pay roll tax oversig hts. I provided y ou with a letter from my doctor stating that I have been under his car e for 3 y ear s and have rec ently bee n ch an ging sever al me d ic a ti o n s w h ic h c o u ld im

p a ir my jo b p e r f

o r ma n c e
. I h a v e ma d e p a

y r o ll ta x d e p o s it s for the last sever al y ear s with no issues u n t i l t h e p as t 10 months.

. . . My rec ent medical condit i o n and medication chang es could be a major contributor to my oversig hts. (Emphases a dded.)

Then, on Dec ember 1, 2009, Smit h and her attorney , Stephen Moss, attended a pretermination meeting with sever al City repr esenta tives. Moss’s aff idavit a vers that at that meeting , he “advise d” the City repr esenta tives that Smit h “suff ere d from depre ssion and anxiety to the extent

5that these condition s af fe cted major life functions, and I reque sted a rea sonable acc ommodation
for these disabiliti es, sug g esting that one such acc ommodation mig ht be to tr ansfe r Cy nthia Smit h

t o another position rathe r than terminating her. I also cited them to revie w the Americ ans wi t h
Di s ab i l i t i es Act.

. . . During the hear ing Cy nthia Smit h stated her disabiliti es and reque st for a

r e a s o n a b le a c c o mm o d a

ti o n
. ” N o ta

b ly , M o s s ’ s a f

f id a v it d o e s n o t id e n ti f

y w h ic h “ ma jo r li f e f u n c ti o n s ”

wer e “af fec ted” by Smit h’s mental condition and does not specify how any particula r maj o r l ife activity is limit ed. The recor d also contains S mith’s deposition and aff idavit, but neither of those
documents provides any fac tual detail about what Smit h communicated to t h e C ity about her
l i m itations. Fur

thermore , there is no evidenc e that any doctor has ever place d any limit ations on Sm it h ’ s w o r k o r id e n ti f

ie d a n y ma jo r li f e a c ti v it ie s th a

t a r e s u b s ta n ti a ll y li mi te d b y h e r me n ta l il ln e s s
. The City terminated Smit h’s employ ment, eff ective J anuar

y 8, 2 0 1 0

. Yet, Smit h
identifies a letter the City filed with the I RS on J anuar y 19, 2010 seeking to abate the penalty
incurre d due to Smit h’s tax-pay ment failure as evidenc e of the City ’s knowledg e of her limit ations. 2
T h e l ett er explains the pay ment failure as partly due to Smit h’s “major depre ssive disorder,” “a

common sy

mptom [of which disorder] is difficulty in conce ntration or forg etfulness in attending to the particula

r.” This medical condition, the letter continues, “is a signific ant proxi mate cause to the employ ee’ s failure to make the deposit.” City repr esenta tives testified that ou t s i d e t ax counsel
prepare d t h e l ett er and included the information about Smit h’s depre ssion beca use of counsel’s

Although the I RS letter was filed afte r Smit h’s termination, we will view it in a light most 2 favor able to Smit h and there fore consider it as demonstrative of what the City knew about Smit h’s limit ations just prior to terminating her, absent evidenc e indicating a chang e in the City ’s awa rene ss of her limit ations during this brief post-termination per iod. 6awa

rene ss that the I RS “sometimes rec og nizes illness as a g ood cause .” Smit h arg ues that this letter
belies the City ’s contention in this lawsuit that it was not awa re of the limit ations resulting from her disability prior to terminating her. We disag ree
. Viewing the I RS letter in the light most favor able

to Smit h, it does not add any thing of signific ance to what the other evidenc e alre ady discussed
im p li e s a b o u t th e Ci ty ’ s a ll e g e d “ k

n o w le d g e ” o f Sm it

h ’ s a c tu a l a

n d s p e c if ic li mi ta ti o n s
. A lt h o u g h th e City soug ht to avoid the tax penalty by claiming in this letter that Smit h’s mental condition “ca used” the missed pay

ments, the letter fails to attribute to Smith a ny specific limit ations on conce ntration
or other ma

jor life func tions, merely

g ener ically

citing c ommon “sy

mptoms” of the condition.
A t th e ti me th e Ci t

y w a s c o n s i d e r in g te r

mi n a ti n g Sm it h ’ s e mp lo y

me n t, s h e h a d a s s e r

te d

no more than g ener al implications that her depre ssion might be “af fec ting” her conce ntration and that “a sy mptom” of depre ssion is a lack of c oncentr ation, without any specific indication that her
persona l conce ntration or another major life activit y was indeed limit ed by the mental illness. Additionally , Smit h prese nted no evidenc e supporting how her alleg ed limit ations of any major life
activi ties actua lly manifested, either in the instances of the three missed I RS pay ments or in any other scena

rio. Although, as Smit h points out, the term “substantially limit s” should be construed 3 broadly in favor of expansive cover ag e of employ ees, see 29 C.F.R. § 1630.2(j)(1) (i) (Equal Emp’t Opportunity Comm’n, Def initio ns), courts must nonetheless make an individualiz ed inquiry
into whether t h e empl oy ee has identified any specific limit ations due to the disability , see Burch ,

City employ ees testified that their understanding of why Smit h soug ht to be relieve d o f 3 t h e task of making I RS pay ments, which is what she claims to have proposed as a “re asonable acc ommodation” for her disability , was beca use she no longe r wanted to perf orm that task beca

use it was “st ressful” and she had “issues reme mbering ” to make the pay ments, not beca

use she was unable to per form it.
7119 F.3d a t 315-16 (holding that employ ee’ s alcoholism did not on its own prove that he suff ere d
from substantially limit ing impairment), and “not ever y impairment wi l l constitute a disability within the meaning ” of the ADA, see 29 C.F.R. § 1630.2(j)(1) (ii).

On this rec ord, we must conclude that Smit h has failed to adduce summary -judg ment evidenc e that would allow a rea sonabl e t ri er o f fact to find that the City knew of any limit ations arising out of Smit h’s asser ted impairment. See Taylor , 93 F.3d at 163-64 (e mploy ee’ s informing employ er that he suffe red from bipolar disorder and reque st for lessening of pressure and reduc tion
in objectives held insufficient evidenc e to meet burden of informing employ er of limit ation); Burch , 119 F.3d at 315-16 (employ ee’ s doctor testified only in g ener al terms about alcoholics as class

r a th e r th a n to in d iv id

u a li ze d li mi ta

ti o n s o f e mp lo y e e )

. T h e f

a c ts th a t Sm it h s u f f e r e d f r o m d e p r e s s io n , that a sign of depre ssion g ener ally is a lack of conce ntration, and that Smit h’s depre ssion “could
aff ect” her work performanc e are insufficient to support her AD A and TCHRA claims, espec ially
in light of the fac t that Smit h’s employ ment rec ord indicated that she was able to and did adequately perf orm the other aspec ts of her job, including ev en t i m el y completing the tax-pay ment task the majority of the time except for these three instances. “A plaintiff cannot survive summary judgme nt by showing that an impairment like his own could substantially limit a major life activity of another
person or in his own future. Rather, he must show that his impairment has actually and substantially
limit ed the major life activity on which he relies.” W aldrip v. Gene ral Elec. Co. , 325 F.3d 652, 656 (5th Cir. 2003) (e mphases adde d).

We hold that on this rec ord, there is no evidenc e to support Smit h’s prima fac ie case

on the element of the employ er’ s knowledg e of her alleg ed limit ation. Acc ording ly , the trial court

8did not err in gra nting the City ’s motion for no-e vidence summary judgme nt and, ac cording ly , we aff irm the trial cour

t’s judgme nt.

__________________________________________ David Pury ear , J ustice
Be fore J ustices Pury ear , Pemberton, and F ield
Affir med Filed: September

30, 2014

9