                                       In The
                                  Court of Appeals
                         Seventh District of Texas at Amarillo

                                          No. 07-16-00034-CV


                                 ARNOLD JORDAN, APPELLANT

                                                     V.

                          TARRANT COUNTY HOSPITAL DISTRICT
                          D/B/A JPS HEALTH NETWORK, APPELLEE

                            On Appeal from the 153rd District Court
                                     Tarrant County, Texas1
              Trial Court No. 153-271809-14, Honorable Susan H. McCoy, Presiding

                                            August 2, 2016

                                  MEMORANDUM OPINION
                       Before CAMPBELL and HANCOCK and PIRTLE, JJ.


        Appellant, Arnold Jordan, appeals the trial court’s grant of summary judgment in

favor of appellee, Tarrant County Hospital District d/b/a JPS Health Network, as to

Jordan’s claims of age, race, and disability discrimination2 arising from JPS’s failure to


        1
          Pursuant to the Texas Supreme Court's docket equalization efforts, this case was transferred to
this Court from the Second Court of Appeals. See TEX. GOV'T CODE ANN. § 73.001 (West 2013).
        2
          All of Jordan’s claims are brought pursuant to federal law. Specifically, Jordan’s age
discrimination claim is asserted under the Age Discrimination in Employment Act (ADEA). His race
discrimination claims are asserted under Title VII of the Civil Rights Act of 1964 (Title VII), and 42 U.S.C.
hire Jordan for the position of Senior Psychiatric Tech. We will affirm the summary

judgment.


                                       Standards of Review


        The propriety of a summary judgment is a question of law that we review de

novo. Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003).

The applicable standards of review for a summary judgment are:

    1. The movant for summary judgment has the burden of showing that there
       is no genuine issue of material fact and that it is entitled to judgment as a
       matter of law.

    2. In deciding whether there is a disputed material fact issue precluding
       summary judgment, evidence favorable to the non-movant will be taken as
       true.

    3. Every reasonable inference must be indulged in favor of the non-movant
       and any doubts resolved in its favor.

Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex. 1985). JPS’s motion

presented both traditional and no-evidence grounds for summary judgment. See TEX.

R. CIV. P. 166a(c), (i). When a party presents multiple grounds for summary judgment

and the order does not specify the ground on which the trial court rendered summary

judgment, the appellant must negate all grounds on appeal. State Farm Fire & Cas. Co.

v. S.S., 858 S.W.2d 374, 381 (Tex. 1993).


        When a movant files a no-evidence motion in proper form under Rule of Civil

Procedure 166a(i), the burden rests on the non-movant to defeat the motion by

presenting evidence that raises a genuine issue of material fact regarding the elements

challenged by the motion. Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex.
____________________
§ 1981 (§ 1981). His disability discrimination claim is asserted under the Americans with Disability Act
(ADA).

                                                   2
2006).     In other words, the non-movant must respond to a no-evidence motion by

presenting more than a scintilla of probative evidence on each challenged element.

See King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003); DR Partners v.

Floyd, 228 S.W.3d 493, 497 (Tex. App.—Texarkana 2007, pet. denied). More than a

scintilla of evidence exists when the evidence, as a whole, "rises to a level that would

enable reasonable and fair-minded people to differ in their conclusions." Merrell Dow

Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997) (quoting Burroughs

Wellcome Co. v. Crye, 907 S.W.2d 497, 499 (Tex. 1995)).


         The movant in a traditional motion for summary judgment, filed pursuant to Rule

166a(c), has the burden of showing that no genuine issue of material fact exists and

that it is entitled to a summary judgment as a matter of law. TEX. R. CIV. P. 166a(c); see

Steptoe v. JPMorgan Chase Bank, N.A., 464 S.W.3d 429, 431 (Tex. App.—Houston [1st

Dist.] 2015, no pet.) (citing Am. Tobacco Co. v. Grinnell, 951 S.W.2d 420, 425 (Tex.

1997)).


                                    Racial Discrimination


         Jordan contends that he presented evidence that establishes a prima facie case

of racial discrimination. JPS responds that the evidence conclusively establishes that

JPS’s decision not to hire Jordan was not racially motivated.


         Central to the parties’ dispute regarding racial discrimination is determining what

constitutes the essential elements of a racial discrimination claim. The parties agree

that the first three elements require the plaintiff to prove that he (1) is a member of a

protected class, (2) applied for and was qualified for the position, and (3) was not hired.

                                              3
See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S. Ct. 1817, 36 L. Ed.

2d 668 (1973); McClaine v. Boeing Co., 544 Fed. Appx. 474, 477 (5th Cir. 2013) (per

curiam). However, the parties dispute the fourth element that applies to this case.

Jordan, relying on McDonnell Douglas, contends that the fourth element is met if he can

show that the position Jordan applied for remained open and JPS continued to seek

applicants from persons of Jordan’s qualifications. See McDonnell Douglas Corp., 411

U.S. at 802. JPS, relying on McClaine, contends that the fourth element requires proof

that the position was filled by a person not in Jordan’s protected class. See McClaine,

544 Fed. Appx. at 477.


       We do not believe that these articulations of elements of a racial discrimination

claim are in conflict. A prima facie case of racial discrimination can be established

when an employer rejects a qualified member of a protected class while the position

remains open and the employer continues to seek applicants from a pool of persons

with plaintiff’s qualifications. See McDonnell Douglas Corp., 411 U.S. at 802. However,

it cannot be said that an employer’s employment decisions were racially motivated

when, as here, the employer eventually hired a qualified person from the same

protected group of which plaintiff is a member. Thus, we conclude that the McDonnell

Douglas standard remains the applicable standard against which a plaintiff must

establish his prima facie case of employment discrimination, but an employer ultimately

hiring a person from plaintiff’s protected class conclusively negates plaintiff’s claim that

the employer’s rejection of plaintiff was racially motivated. See McClaine, 544 Fed.

Appx. at 477.




                                             4
       In the present case, JPS presented evidence that established that it hired Aundra

Conyer, an African-American, to fill the position for which Jordan applied. Jordan does

not controvert this evidence. As such, we conclude that Jordan has failed to establish a

prima facie case of racial discrimination and JPS is entitled to summary judgment as a

matter of law. We overrule Jordan’s challenge to summary judgment on his racial

discrimination claims.


                                   Disability Discrimination


       Jordan also contends that he presented sufficient evidence to meet his prima

facie burden that JPS committed disability discrimination. JPS responds contending

that, inter alia, it did not know that Jordan suffered from a disability.


       To establish a prima facie case of disability discrimination, Jordan had to show

that he (1) has a disability, (2) was qualified for the position for which he applied, and (3)

was subject to an adverse employment decision due to his disability. EEOC v. LHC

Group, Inc., 773 F.3d 688, 695 (5th Cir. 2014). The ADA defines disability as "a physical

or mental impairment that substantially limits one or more major life activities of such

individual; a record of such an impairment; or being regarded as having such an

impairment." 42 U.S.C. § 12102. To prove a substantial limit to a major life activity,

"[e]vidence of a medical diagnosis of impairment, standing alone, is insufficient to prove

a disability." Ramos-Echevarria v. Pichis, Inc., 659 F.3d 182, 187 (1st Cir. 2011). At the

summary judgment stage, plaintiff must produce sufficient evidence that his impairment

is profound enough and of sufficient duration, given the nature of his impairment, to

significantly restrict him in working. Carroll v. Xerox Corp., 294 F.3d 231 (1st Cir. 2002).


                                               5
       To meet this burden, Jordan cites his affidavit in which he attests that he suffered

a broken ankle while working for JPS in December of 2009, and that the injury “kept

[him] off work” until December of 2011.          However, due to Jordan’s exhaustion of

personal and FMLA leave, JPS terminated him before his release to return to work.

While this evidence establishes that Jordan sustained an injury, it is not evidence of

whether he is currently disabled within the meaning of the ADA. As to how the injury

causes him to be disabled, Jordan simply attests that it “affects my major life activities of

standing and walking.” Other than attesting that he walks with a “limp,” Jordan makes

no effort to specify the extent to which the prior ankle injury affects his ability to stand

and walk. As such, Jordan has failed to show that he is disabled within the meaning of

the ADA. See Figueroa Guzman v. WHM Carib, LLC, No. 14-1345 (SEC), 2016 U.S.

Dist. LEXIS 33783, at *9-10 (D.P.R. Mar. 14, 2016) (conclusory statements indicating

that plaintiff’s accident rendered him unable to lift heavy loads, prepare food, or chop

vegetables not sufficient to establish disability under the ADA).


       Since Jordan has failed to specify how his prior ankle injury substantially limits

one or more of his major life activities, see Griffin v. United Parcel Serv., Inc., 661 F.3d

216, 222 (5th Cir. 2011), and because establishing that he has a disability is a threshold

requirement to stating an ADA claim, see Waldrip v. Gen. Elec. Co., 325 F.3d 652, 654

(5th Cir. 2003), we conclude that Jordan has failed to establish a prima facie case of

disability discrimination.   Therefore, we conclude that the trial court did not err in

granting summary judgment to JPS on Jordan’s disability discrimination claim.




                                             6
                                            Age Discrimination


      Jordan contends that the evidence established a prima facie case of age

discrimination. JPS responds that Jordan failed to raise a genuine issue of material fact

regarding the essential elements of his prima facie age discrimination claim.


      To establish a claim of age discrimination, Jordan must prove that he was

qualified for the position, was not hired, and was within the protected class at the time

he was not hired. See Rachid v. Jack in the Box, Inc., 376 F.3d 305, 309 (5th Cir. 2004).

In addition, Jordan must establish either that the person hired was substantially younger

than him or that Jordan was otherwise rejected because of his age.               See id.

Furthermore, to prove age discrimination, Jordan was required to establish by a

preponderance of the evidence that age was the “but for” cause of the prospective

employer’s adverse employment action. See Gross v. FBL Fin. Servs., Inc., 557 U.S.

167, 177-78, 129 S. Ct. 2343, 174 L. Ed. 2d 119 (2009). Stated another way, a plaintiff

must prove that the adverse employment action was taken solely because of his age.

See Ruth v. Eka Chems., Inc., 623 Fed. Appx. 281, 282 (5th Cir. 2015) (per curiam).


      JPS filled the position Jordan applied for with Aundra Conyer, a forty-five year

old. Jordan was fifty-nine at the time he applied for the position.3 However, other than

citing to this fact, Jordan makes no attempt to show, through his appellate brief, how

JPS discriminated against him on the basis of his age. The only age discrimination-

related argument advanced by Jordan in his brief is that the applicable “but for”

standard for causation in an age discrimination case should be decided by a jury.


      3
          Jordan’s qualification for the position is not in dispute.

                                                        7
However, before we get to the point of determining the proper manner in which

causation should be assessed, Jordan has to present some evidence to support his

claim of age discrimination. After reviewing the record, we conclude that Jordan has

wholly failed to do so. As such, we conclude that the trial court did not err in granting

JPS’s no-evidence summary judgment on Jordan’s age discrimination claim.


                                      Conclusion


      Jordan’s claims of discrimination were asserted on three different bases.

However, we have concluded that there is no genuine issue of material fact as to any of

these bases and, therefore, JPS is entitled to judgment as a matter of law on each. As

such, we overrule each of Jordan’s appellate issues and affirm the trial court’s grant of

summary judgment in favor of JPS.




                                         Mackey K. Hancock
                                             Justice




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