      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-12-00295-CV



                                  Cynthia A. Smith, Appellant

                                                 v.

                                    City of Austin, Appellee


    FROM THE DISTRICT COURT OF TRAVIS COUNTY, 126TH JUDICIAL DISTRICT
      NO. D-1-GN-11-001646, HONORABLE GISELA D. TRIANA, JUDGE PRESIDING



                            MEMORANDUM OPINION


               Cynthia A. Smith appeals the trial court’s summary judgment in favor of the City

of Austin on her claims that the City violated the Americans with Disabilities Act (ADA) and

the Texas Commission on Human Rights Act (TCHRA) in terminating her employment. For the

following reasons, we affirm the trial court’s judgment.

               Smith filed a lawsuit against the City alleging that it failed to provide a reasonable

accommodation for her disability—major depression and anxiety disorder—and instead terminated

her employment as assistant payroll manager after she failed three times within eleven months to

timely submit the City’s federal income-tax liability to the IRS, resulting in the City incurring a

large tax penalty (which was later abated). The City filed a combined no-evidence and traditional

motion for summary judgment, asserting that Smith failed to establish a prima facie case for

discrimination by failure to accommodate. The trial court granted the City’s summary-judgment
motion without specifying the basis for its decision. We will, therefore, affirm if any of the

grounds asserted 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 summary judgment on both traditional and

no-evidence grounds, we first review the trial court’s decision under the no-evidence standard.

Merriman v. XTO Energy, Inc., 407 S.W.3d 244, 248 (Tex. 2013) (explaining that if nonmovant

fails to produce legally sufficient evidence to meet burden for no-evidence motion, there is no

need to analyze whether movant satisfied burden under traditional motion). When a movant files

a no-evidence summary-judgment motion stating the elements of the nonmovant’s claim on which

there is no evidence, the burden shifts to the nonmovant to present or identify summary-judgment

evidence raising a genuine issue of material fact on the specified elements. Tex. R. Civ. P. 166a(i);

Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006). A no-evidence summary-judgment

motion is properly granted if the nonmovant fails to bring forth more than a scintilla of probative

evidence to raise a genuine issue of material fact on each ground where the nonmovant bears the

burden at trial and that is raised in the summary-judgment motion. Jackson v. Fiesta Mart, Inc.,

979 S.W.2d 68, 70-71 (Tex. App.—Austin 1998, no pet.). Less than a scintilla of evidence exists

when the evidence is “so weak as to do no more than create a mere surmise or suspicion” of a

fact, and the legal effect is that there is no evidence. Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63

(Tex. 1983).

               To establish a prima facie case for an employer’s failure to accommodate a disability,

a plaintiff must show that (1) she is a qualified individual with a disability, (2) the disability and



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its consequential limitations were known by the covered employer, and (3) the employer failed to

make reasonable accommodations for such known limitations. Feist v. Louisiana, 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 facie case is a showing that she suffers from a disability, see Talk v. Delta Airlines, Inc.,

165 F.3d 1021, 1024 (5th Cir. 1999) (per curiam), which the ADA and TCHRA define in relevant

part as “a physical or mental impairment that substantially limits one or more major life activities

of such individual,” see 42 U.S.C. § 12102(1)(A); Tex. Lab. Code § 21.002(6). Major life activities

include concentrating, thinking, and working. 42 U.S.C. § 12102(2)(A). The City challenged all three

elements of Smith’s prima facie case in its summary-judgment motion.1

               The City argues that the summary-judgment record entitled it to judgment as a matter

of law because there is no evidence that Smith informed the City of any limitations caused by her

mental illness or that, accordingly, the City knew that she was “disabled” as defined 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-accommodate case, plaintiff must show that employer knew of her substantial

physical or mental limitation). “[I]t is important to distinguish between an employer’s knowledge

of an employee’s disability versus an employer’s knowledge of any limitations experienced by the

employee as a result of that disability.” Id. at 164. “[T]he ADA requires employers to reasonably

accommodate limitations, not disabilities.” Id. “This is a critical distinction, because the existence

vel non of a disability or impairment is material to a reasonable accommodation claim only insofar


       1
          Because the language of the TCHRA tracks the ADA, if summary judgment is appropriate
on a plaintiff’s ADA claims, it is also appropriate on her TCHRA claims. See Lottinger v. Shell Oil
Co., 143 F.Supp.2d 743, 752 (S.D. Tex. 2001).

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as it limits an employee’s ability to perform his or her job.” Burch v. Coca-Cola Co., 119 F.3d 305,

314 (5th Cir. 1997).

                Smith’s lawsuit asserts that her depression substantially limits her major life function

of concentration. However, it was her burden to identify evidence supporting her assertion that

her impairment indeed substantially limits that major life activity and that she informed the City

of such limitation prior to her termination. See Taylor, 93 F.3d at 163-64; see also 42 U.S.C.

§ 12112(b)(5)(A) (term “discriminate” includes not making reasonable accommodations to known

physical or mental limitations of otherwise qualified individual with disability). It is especially

important that an employee notify her employer of her specific limitations where the disability,

resulting limitations, and necessary reasonable accommodations are not open, obvious, and

apparent to the employer, as is often the case when mental disabilities are involved. Taylor, 93 F.3d

at 165-66 (noting public policy dictates presumption that disabled employees are not limited in their

abilities to perform their jobs and that capabilities of qualified individuals are to be determined

on case-by-case basis). After our review of the record, we must agree with the City and hold that

the trial court properly granted summary judgment on the basis that there is no evidence that the

City knew Smith had any limitations that are covered by the ADA.

                The summary-judgment evidence indicates that Smith made various vague

representations to the City about how her mental illness might affect her job performance but

presented no evidence that she was, in fact, limited in her ability to concentrate due to the condition.

Despite various attempts by the City to glean from Smith possible reasons for her tax-payment

failures, Smith did not mention that she suffered from depression or that it may have impaired her



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concentration until after she received a pre-termination letter from the City on November 9, 2009

requesting further information to be considered in making the final termination decision. In reply,

Smith submitted a letter stating,


       I believe that my lack of adherence to every detail in my work is a result of
       my mental health. As can be seen from the attached letter from my doctor, I have
       been struggling with depression for over two years. A sign of depression is lack of
       concentration. Even through my illness, I have sought to remain a positive producing
       employee. I hope you will take this crucial information into consideration as you
       deliberate my fate with the City.


Her attached doctor’s note stated, “Cynthia Smith has been under my care for the treatment of

depression and anxiety since September 2006. Her depression has not been fully controlled for about

18 months. This has resulted in several medication changes and adjustments without a full response.

Please take this into consideration in evaluating her work performance.”

               Shortly thereafter, Smith submitted another letter to the City listing the reasons why

her employment should not be terminated. Among them was the following:


       I have a medical condition which could affect my work performance and contribute
       to the payroll tax oversights. I provided you with a letter from my doctor stating that
       I have been under his care for 3 years and have recently been changing several
       medications which could impair my job performance. I have made payroll tax deposits
       for the last several years with no issues until the past 10 months. . . . My recent
       medical condition and medication changes could be a major contributor to my
       oversights. (Emphases added.)


               Then, on December 1, 2009, Smith and her attorney, Stephen Moss, attended a pre-

termination meeting with several City representatives. Moss’s affidavit avers that at that meeting,

he “advised” the City representatives that Smith “suffered from depression and anxiety to the extent

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that these conditions affected major life functions, and I requested a reasonable accommodation

for these disabilities, suggesting that one such accommodation might be to transfer Cynthia Smith

to another position rather than terminating her. I also cited them to review the Americans with

Disabilities Act. . . . During the hearing Cynthia Smith stated her disabilities and request for a

reasonable accommodation.” Notably, Moss’s affidavit does not identify which “major life functions”

were “affected” by Smith’s mental condition and does not specify how any particular major life

activity is limited. The record also contains Smith’s deposition and affidavit, but neither of those

documents provides any factual detail about what Smith communicated to the City about her

limitations. Furthermore, there is no evidence that any doctor has ever placed any limitations on

Smith’s work or identified any major life activities that are substantially limited by her mental illness.

                The City terminated Smith’s employment, effective January 8, 2010. Yet, Smith

identifies a letter the City filed with the IRS on January 19, 2010 seeking to abate the penalty

incurred due to Smith’s tax-payment failure as evidence of the City’s knowledge of her limitations.2

The letter explains the payment failure as partly due to Smith’s “major depressive disorder,” “a

common symptom [of which disorder] is difficulty in concentration or forgetfulness in attending to

the particular.” This medical condition, the letter continues, “is a significant proximate cause to the

employee’s failure to make the deposit.” City representatives testified that outside tax counsel

prepared the letter and included the information about Smith’s depression because of counsel’s




        2
          Although the IRS letter was filed after Smith’s termination, we will view it in a light most
favorable to Smith and therefore consider it as demonstrative of what the City knew about Smith’s
limitations just prior to terminating her, absent evidence indicating a change in the City’s awareness
of her limitations during this brief post-termination period.

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awareness that the IRS “sometimes recognizes illness as a good cause.” Smith argues that this letter

belies the City’s contention in this lawsuit that it was not aware of the limitations resulting from her

disability prior to terminating her. We disagree. Viewing the IRS letter in the light most favorable

to Smith, it does not add anything of significance to what the other evidence already discussed

implies about the City’s alleged “knowledge” of Smith’s actual and specific limitations. Although the

City sought to avoid the tax penalty by claiming in this letter that Smith’s mental condition “caused”

the missed payments, the letter fails to attribute to Smith any specific limitations on concentration

or other major life functions, merely generically citing common “symptoms” of the condition.

                At the time the City was considering terminating Smith’s employment, she had asserted

no more than general implications that her depression might be “affecting” her concentration and

that “a symptom” of depression is a lack of concentration, without any specific indication that her

personal concentration or another major life activity was indeed limited by the mental illness.

Additionally, Smith presented no evidence supporting how her alleged limitations of any major life

activities actually manifested, either in the instances of the three missed IRS payments or in any

other scenario.3 Although, as Smith points out, the term “substantially limits” should be construed

broadly in favor of expansive coverage of employees, see 29 C.F.R. § 1630.2(j)(1)(i) (Equal Emp’t

Opportunity Comm’n, Definitions), courts must nonetheless make an individualized inquiry

into whether the employee has identified any specific limitations due to the disability, see Burch,


       3
          City employees testified that their understanding of why Smith sought to be relieved of
the task of making IRS payments, which is what she claims to have proposed as a “reasonable
accommodation” for her disability, was because she no longer wanted to perform that task because
it was “stressful” and she had “issues remembering” to make the payments, not because she was
unable to perform it.

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119 F.3d at 315-16 (holding that employee’s alcoholism did not on its own prove that he suffered

from substantially limiting impairment), and “not every impairment will constitute a disability

within the meaning” of the ADA, see 29 C.F.R. § 1630.2(j)(1)(ii).

               On this record, we must conclude that Smith has failed to adduce summary-judgment

evidence that would allow a reasonable trier of fact to find that the City knew of any limitations

arising out of Smith’s asserted impairment. See Taylor, 93 F.3d at 163-64 (employee’s informing

employer that he suffered from bipolar disorder and request for lessening of pressure and reduction

in objectives held insufficient evidence to meet burden of informing employer of limitation); Burch,

119 F.3d at 315-16 (employee’s doctor testified only in general terms about alcoholics as class

rather than to individualized limitations of employee). The facts that Smith suffered from depression,

that a sign of depression generally is a lack of concentration, and that Smith’s depression “could

affect” her work performance are insufficient to support her ADA and TCHRA claims, especially

in light of the fact that Smith’s employment record indicated that she was able to and did adequately

perform the other aspects of her job, including even timely completing the tax-payment task the

majority of the time except for these three instances. “A plaintiff cannot survive summary judgment

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

limited the major life activity on which he relies.” Waldrip v. General Elec. Co., 325 F.3d 652, 656

(5th Cir. 2003) (emphases added).

               We hold that on this record, there is no evidence to support Smith’s prima facie case

on the element of the employer’s knowledge of her alleged limitation. Accordingly, the trial court



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did not err in granting the City’s motion for no-evidence summary judgment and, accordingly, we

affirm the trial court’s judgment.



                                           __________________________________________

                                           David Puryear, Justice

Before Justices Puryear, Pemberton, and Field

Affirmed

Filed: September 30, 2014




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