Texas Department of Protective and Regulatory Services v. Gerry Mulligan

IN THE TENTH COURT OF APPEALS No. 10-03-00254-CV Texas Department of Protective and Regulatory Services, Appellant v. Gerry Mulligan, Appellee From the 74th District Court McLennan County, Texas Trial Court # 2001-1038-3 MEMORANDUM Opinion Gerry Mulligan was terminated from her employment as a Regional Technician for TDPRS. She sued TDPRS under the Texas Commission on Human Rights Act for discrimination based on a perceived disability. Because Mulligan presented no evidence that TDPRS’s perception of an impairment, if true, would substantially limit her ability to work, we reverse this cause and render a judgment that Mulligan take nothing. The Act defines disability as a “physical impairment that substantially limits at least one major life activity . . . , a record of such impairment, or being regarded as having such an impairment.” Tex. Labor Code Ann. § 21.002 (6) (Vernon Supp. 2004-2005). Mulligan sued TDPRS under the “regarded as” prong of the Act. To be considered disabled under the “regarded as” prong, a plaintiff must show that the employer regarded the employee to be suffering from an impairment within the meaning of the Act, not just that the employer believed the employee to be somehow disabled. Columbia Plaza Med. Ctr. Of Fort Worth Subsidiary, L.P. v. Szurek, 101 S.W.3d 161, 167 (Tex. App.—Fort Worth 2003, pet. denied); accord Spinks v. Trugreen Landcare, L.L.C., 322 F. Supp.2d 784, 794 (S.D. Tex. 2004). The phrase “substantially limits” as applied to the major life activity of working was defined in the charge as: …an individual is restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills and abilities. The inability to perform a single, particular job does not constitute a substantial limitation in the major life activity of working. (Emphasis added). Neither party contests that working is a major life activity. To show a substantial limitation, a plaintiff is required to show an inability to work in a class or broad range of jobs, rather than a specific job. See Haggar Apparel Co. v. Leal, No. 02-1182, 2004 Tex. LEXIS 1423, * 3-4, 48 Tex. Sup. J. 273 (Tex. Dec. 31, 2004); Union Carbide Corp. v. Mayfield, 66 S.W.3d 354, 368 (Tex. App.—Corpus Christi 2001, pet. denied). See also Murphy v. UPS, 527 U.S. 516, 524, 119 S.Ct. 2133, 144 L.Ed.2d 484 (1999). TDPRS voiced a motion for directed verdict to the trial court and contends on appeal that the motion should have been granted because the evidence does not establish that the perceived “impairment” substantially limits Mulligan’s ability to work.[1] An appeal from the denial of a motion for directed verdict is essentially a challenge to the legal sufficiency of the evidence. Fein v. R.P.H., Inc., 68 S.W.3d 260, 265 (Tex. App.—Houston [14th Dist.] 2002, pet. denied). Therefore, we review the denial of a directed verdict by considering all the evidence in the light most favorable to the non-movant, disregarding all evidence to the contrary, and resolving all reasonable inferences in favor of the non-movant. Id. To reverse the denial of a motion for directed verdict, the appellant must show the evidence conclusively proves a fact that establishes appellant's right to judgment as a matter of law, and there is no evidence to the contrary. Id. The only evidence presented by Mulligan was that out of 60 jobs in the data processing division of TDPRS, 45% of which were Regional Technician positions, 40 jobs required lifting over 20 pounds. At most, this evidence suggests that Mulligan would be restricted from jobs in data processing. But the inability to perform one job is not a substantial limitation. There was no evidence that Mulligan’s perceived impairment of a lifting restriction would restrict her from a class of jobs or a broad range of jobs. Mulligan’s position at TDPRS involved setting up and troubleshooting computer systems. Mulligan had to prove that her perceived impairment would restrict her from working in this type or class of job or a broad range of other jobs. She did not. Thus, there is no evidence that Mulligan’s perceived “impairment” substantially limited her in the major life activity of working. The trial court erred in denying TDPRS’s motion for directed verdict. Therefore, we reverse the trial court’s judgment and render judgment that Mulligan take nothing. TOM GRAY Chief Justice Before Chief Justice Gray, Justice Vance, and Justice Reyna Reversed and judgment rendered Opinion delivered and filed March 23, 2005 [CV06] [1] We do not decide today whether the perceived impairment was actually an impairment within the meaning of the Act.