NO. 07-01-0299-CV IN THE COUR

T OF APPEALS FOR THE SEVEN TH DISTRICT OF TEXAS

AT AMARILLO PANEL A APRIL 5, 2002

______________________________ ROBERT STUCKY, APPELLANT

V. CITY OF HO USTON, TEXAS, A PPELLEE

_________________________________ FROM THE 189 TH DISTRIC T COURT O F HARRIS COU NTY; NO. 99-41560; H ONORABLE JEF F WORK, JUDGE

_______________________________ Before BOYD, C.J., and REAVIS an d JOHNSON, JJ. Appellant

Robe rt Stu cky ap pea ls fr om a summ ary jud gmen t ent ered by t he trial court in favor of appel lee the City of Houston, Texas (the C ity), c laiming he was unlawfully terminated from his employ ment with theCity because of a hearing i mpairment

in viol ation of the Texas Commission on Huma n Rights Act. The City filed a motion for sum mary judgment

asserting that appellant was not disabled or ifhe was, he was di scharged from his employment for r

easons other than his disabil ity. The tr ial court g ranted the motion for2

summary judgment. In one issue, appel lant claims t he court err ed in granti ng the motion because genuine issues of material f act preclude summar y judgment. For

the reasons se t forth, we affirm the judgment of the tr ial court. The City sought summary judgment both on the basis that there was no evidence to support one or more essential elements of appellant ’s claim and there wasno genuine issue of mat erial fa ct and it was entitle d to judgm ent as a matter of law. In reviewing a summary judgment, the mov ant has the burden of showing that there is no genui ne issue of material fact. Nixon v. M r. Property

Management Co. , Inc., 690 S.W.2d 546, 548-4 9 (Tex. 1985). In our revi ew , we must take evidence favorable to the non- movant as tr ue and indulge every reas onable inference i n favor of the non-mov ant and resolve any

doubts in its favor. Id. To b e ent itle d to s umm ary judgment, a defendant must disprove as a matter of law one of the es sential elements of each cause of

actio n or establis h one or
more defenses as a matter of law

. Randall’s Food Markets, Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex. 1995).
When a no-evidence motion for sum mary judgment is m ade, we ap ply t he same legal sufficiency s tandard we ap ply in r eviewi ng a directed verdict

. K imber v. Sideris , 8 S. W.3d 672, 675-76 (Tex .App.--Amari llo 1999, no pet.) . Therefore, w e ascertain i f th e non-movant

produced more than a scintil la of probativ e evidence to raise a fact i ssue on the material q uestions pres ented. Id. When, as in the case before us, the tr ial court doe s notstate the gr

ounds on which the summary judgment motion was granted, we must af firm3

itif any of the grounds s tated in the motion are meritor ious. Carr v. Br asher , 776 S.W.2d 567, 569 (Tex. 1989).
An employer commits an unlaw ful employment

pra cti ce i f, because of a disa bilit y, the employer di scharges an individ ual or disc riminates in any other matter i n connection with the compe nsati on or the terms, conditions, o r priv ileges of employ ment. Tex. Lab. Code Ann. § 21.051(1) (Vernon 1996). To prevail on a disabili ty claim, a plaintiff is not required to prove t hat his disabi lity w as the sole cau se of his te rmination. Gorges Foodservice, Inc. v. Huer ta, 964 S.W.2d 656, 667 (Tex.App.-- Corpus Chr isti 1997, p e t. withdrawn). With respect to an indiv idual, a disab ility is defined to mean, “ a m enta l or physical impairment

that substantially limits at least one major life activity of that individual,
a record of such an impair ment, or being regarded as having such an impairment.” Id. § 21.002(6) (Vernon Supp. 200 2). To establi sh a prima facie cas e of disabi lity discriminat ion, the plaintiff must makea threshold s howing t hat he has a disa bilit y. Garcia v. Allen , 28 S.W.3d 587, 596 (Tex.App.-- Corpus Chr isti 2000, pet. denied).
Amajor life activ ity is in the nature of car ing for one’sself, performing manual tasks, walking, seeing, hear ing, speaki ng, breathing , learning and workin g. Hartis v. Mason & Hanger Corp., 7 S.W.3d 700, 703 (Tex.App.--Amar illo 1999, nopet.). To substantially limit such a major

life activ ity, the per

son must be unable to perform an activ ity that th e average person in the genera l populati on can perform or besignificant ly rest ricted as to the condition, manner or durat ion under w hich he can per form a major

lifeactivit

y as compare d to that whic h the averag e person can perform. Morrison v. Pinkerton Inc., 7 S.W.3d 851,4

855 (Tex.App.-- Houston [1 st Dist.] 19 99, no pet.) (cit ing 29 C.F .R. § 1630.2(j )). The limitation must be considerabl e or specified to a largedegree. Sutton v. Unit ed AirLines , Inc., 527 U.S. 471, 491 119S.Ct. 2139, 2150, 144 L.Ed.2d 450 (1999 ). Further more, the determination of a disabilit y must be made with refer ence to the corr

ective effects of mitigating measures. Id. at 488. Appellant

was employ

ed as a zookee per for the Cit y in Octob e r 1997, an d was terminated at the end of his one-year probat ionary period for all eged poor perfor mance. He was heari ng impaired to some extent in both ears, b ut was abl e to wear a hearing aid in only one ear . At the time he was inter viewed for the position , he made known to his immediate supervis or Lynn Ki llam, and her s upervisor Barbara Lester , that he ha d a “hearing probl em” and wore a hearing aid. However, there is no evidence that he informed them of any limi tations caused b y his “ hearing pr oblem” at that ti me. Appellant

contends that at

the onset of his emp loyment, he asked Killam if he could have a better radi o and telephone, but w as told th er e was no money. He explained his problem as follows:
Some individ uals – people have s oft voice [sic ], and they need to speak louder. Sometim es if I don’t have good volume control with devices, it’s going to make it more difficult for me to hea r. If ther e’s many variety of noises that wil l drown o ut that indiv idual person that I’m speaki ng with, I will have difficult hearin g. It’s b estly – i t’s best f or m y bene fit, hop efully some situations I need – I do need to be acco mmodated in ord er t o ben efi t my hearing a nd comm unicat ion, my un derstan ding.5

He stated that

Killam did no t like him hav ing to ask her to repeat somethi ng. However, he testified in his deposi tion that co-w orkers als o complained th ey could not hear on their radios and had difficulties with their telephon es. He further averred th at he was loaned a radio from another section once, which worked better and he was able to hear m o re clea rly. That radio was not especial ly equi pped for the hearing impaired. The radios were assigned to a particul ar section of the zoo, not to par ticular i ndividuals . In re quests for admissions, appellant admitted his hearing disabilit y posed no limitation on his abili ty to perform the essential functions of his pos ition at the zoo, and he tes tified in his deposition that his heari ng loss or impairment did not affect his abili ty to do his job.
One of his co-workers, Ronald Santos, stated that some of thetelephones did no t function properlyand some were more reliable than others. Santos had th e same trouble with the phone when he worked in appellant’s area. Another co-worker, Regina Cravens, stated thatalmost all of the phon e lines had static, although the ph one in appellant’s a rea had the wors t static. Ap pellant also complained that the ba ckground noise of the mon keys sometimes prevented him from being able to hear, but Santos concurr

ed that the noises of the animal s could in terfe re with the ability to h ear what co -workers were sa ying.
As already s tated, appellant must show t hat his heari ng condition with the use of his hearing aid substantially limits him in a major l ife activity . The complaints made by appellant

as to the functioni ng of the radi o and telephone were also made by other employees. Further, w hen appellant had the opportunit

y to use a better functioning r adio, he claimed to have no trouble hear ing, eve n though there was no spec ial equipment on the6

radio that would make it function better for a hearing i mpaired person. Thus, whil e the zoo mayhave needed bette r quality telephones and radios i n general, an d while t he zoo may have been a noisy

environment

at times, appell ant has made no show ing that t he prob lems he su ffered distingui shed him from the g eneral populati on, and therefore hi s hearing problems cannot beconsidered i ncapacitating

. See Morris on , 7 S.W.2d at 856. The subjectiv e belief of appellant t hat he had a disabi lity, even with the use of his hearing aid, whi ch should hav e been accom m odated by the C ity, isnot sufficient to establish a prima facie cas e of employment dis crimination. Jones v. Jefferson County, 15 S.W.3d 206, 210 (Tex.A pp.- -Tex ark ana 2 000, pet. deni ed). Sim ila rly , thesubj ecti ve b eli efs of his co-wor kers, sev eral of whom testified that th ey believed he had difficulty because of his hearing i mpairment, are not sufficient

to establish a prima facie cas e. Martin v. Kroger Co. , 65 F.Supp.2d 516, 553 (S.D. Tex . 1999), aff’d, 224 F.3d 765 (5 th Cir. 2000)

. Appellant

submitted his own affidavi t, which stated that his hearing ability in his ri ght
ear is 42% of normal hearing capac ity and hi s left ear w ithout a he aring aid is 54%, and
w ith a he aring aid is 82% of normal he aring capac ity. However , there is not hing in the record to s how how those percentag es were determined, and no ex pert testimony was offered with res pect to the ex tent of appellant’shearing impairment. Cf. City of Austin v. Gifford , 824 S.W.2d 735, 740 (Tex.App.-- Austin 1992, no w rit) (a udiologist ’s report of
severe to profound hea ring loss and expert testimony that a person so aff lict e d is often perceived as unable to perform job duties supported handicap finding). Although appel lant argues that all the matters in his aff idavit are within his personal k nowledge, there is no1 Analogous provisi ons of the AmericansWith Disabiliti es Act may be used to interpret disabilit y discr imination prov isions under state law. Kiser v. Origin al, Inc., 32 S.W.3d 449, 452 (Tex.App.--Hou ston [14 th Dist.] 2000, no pet.) 7 showing that he has the exper tise to determi ne the exact e xtent of his hea ring impairment with or without a he aring aid. Next, we must deter mine whether appellant is disabled becausehe has a recor d of such impairment. To pr evail on t hat claim, appel lantmust show he hasa history of or has been misclassi fied as having an impairment that subs tant ial ly

lim its one o r mor

e maj or l ife activities. Sherrod v. Am erican Air lines, Inc., 132 F.3d 1112, 1120-21 (5 th Cir. 1998) . The type of records contemplated include, but are not li mited to, educati ona l, med ical, or employment

records. 2 9 C.F.R. pt. 1630, app . § 1630.2 (k ) (2001). 1 Appellant has not offered any such r

ecords or r

ecords simil ar to them into ev idence in this case. Further, appellant had pr eviously worked for one employer for 14 1/2 years, but did notrequest any accommodation unt il he had been there over seven years, at which time he requested a volume contr ol phone only after hi s supervi sor asked if he wanted a better telephone. After he left that employer, he worked at another job at which he requested no accommodation because there w as already

a volume contr

ol telephone and hi s supervi sor spoke more loudlyin his presence. There is no evidence the City had knowledge of this information and, with out more, do es not make out a pr ima facie case that appellant has
a rec ord o f im pair men t tha t sub stan tial ly limi ts a m ajor life activi ty.8

We must next co nsider w hether there i s evidence thatthe City r egarded appell ant
as having a substantiall y limiti ng impairment. Under thisstandard, the C ity had to be lieve thatappe llan t had a sub stan tial ly limi ting i mpa irme nt th at he did n ot ha ve or that he had
a substantiall y limiti ng impairment when the impai rment wasnot so lim iting. Morrison, 7 S.W.3d at 857. Simple a wareness of an impairment is insufficient

to prove the empl oyer regarded the employee as disabled. E.E.O.C. v. E xxon Corp., 124 F.Supp.2d 987, 998 (N.D. Tex . 2000). Appellant

claims that

because he was terminated for h is “gener al lack of abili ty to comprehend,” a fact issue has been raised that the City perceived appellant to be unfit for the job because of hishearing i mpairment. Fir st, we note that the referenc e d phrase, which was a “g eneral lack of ability to comprehend and follow instructi ons properly ,” was
a summation in a l etter by Bar bara Lester after a specific itemizat io n of infractions committe d by appellant , including leaving primary animal containment doors unlocked, leaving secondary containment doors open while away from t he area, leaving two primary and one secondary

animal containment

doors open and one tertiary animal containment door open at the same ti me, inaccurate animal observations and documentations, failure to follow standard operating procedures such as wearing a mask while hosing and cleaning animal cages, failur

e to follow i nstructions aboutwearing a mask in the primate ar ea when he has a cold, and the existence of mold in a juice container and rancid juice on two separate occasi ons.9

Killam was appell ant’simme diat e supervisor and conducted his two perform ance evaluations, four work progress reports, and issued his writte n reprimand for l eaving doors unlocked o r open, all upon which the decision to terminate was purportedly based. Appellant

testified that hebelieved K illam did not think he was real ly hav ing troubl e hearing her and she did not

perceivehim as havi ng a substanti al limitati on. He also di d notname any other zoo managers that perceived him as being substan tially limited. Further, there is no evidence that appellant w as treat ed differently from any other employ ee who requested a new radi o or telephone. Proof that only creates a meresuspicion of a fact is less than the scintilla of proof required to survive su mmary jud gm ent. Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983). Appellant

argues that McIn nis v. Alamo Comm unity Coll ege , 207 F.3d 276 (5 th Cir. 2000) supports his

proposition that the reference to his lack o f ability t o comprehend rais es a fact issue becaus e the disabili ty at iss ue in that c ase was sp eech related, and the employer

referred to the employee as hav ing oral communication pro blems. However, that court found there was a g enuine fact issue as to whether the employee w

as regarded as disabled because the compli ance coo rdi nator testified s he could tell from his file that h e was disabled or

perceive d as such and ther e was a le tter indicat ing that his transfer to fulltime teaching was an accommodatio n f or his handicap, although he had not requested such an accommodation. Id. at 281. No such evidence appears in the record before us. We therefore do not believ e appellant has made a prima facie cas e that he suffered from10

a disabilit

y or was reg arded as such, and the court’s order gr anting summary

judgment

can be sustained on th at issue alone.
Because we havefound that the summary judgment shoul d be affirmed on the basis discussed, it is not necessary for us to address whether appellant was treated less favorably

than non-disabl ed employees. The judgment of the tr ial court i s affirmed.
John T. Boyd Chief Justice Do not publish

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