                                   NO. 07-01-0299-CV

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                        PANEL A

                                      APRIL 5, 2002

                          ______________________________


                            ROBERT STUCKY, APPELLANT

                                            V.

                       CITY OF HOUSTON, TEXAS, APPELLEE


                        _________________________________

             FROM THE 189TH DISTRICT COURT OF HARRIS COUNTY;

                  NO. 99-41560; HONORABLE JEFF WORK, JUDGE

                         _______________________________

Before BOYD, C.J., and REAVIS and JOHNSON, JJ.


       Appellant Robert Stucky appeals from a summary judgment entered by the trial

court in favor of appellee the City of Houston, Texas (the City), claiming he was unlawfully

terminated from his employment with the City because of a hearing impairment in violation

of the Texas Commission on Human Rights Act. The City filed a motion for summary

judgment asserting that appellant was not disabled or if he was, he was discharged from

his employment for reasons other than his disability. The trial court granted the motion for
summary judgment. In one issue, appellant claims the court erred in granting the motion

because genuine issues of material fact preclude summary judgment. For the reasons set

forth, we affirm the judgment of the trial 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 was no genuine

issue of material fact and it was entitled to judgment as a matter of law. In reviewing a

summary judgment, the movant has the burden of showing that there is no genuine issue

of material fact. Nixon v. Mr. Property Management Co., Inc., 690 S.W.2d 546, 548-49

(Tex. 1985). In our review, we must take evidence favorable to the non-movant as true

and indulge every reasonable inference in favor of the non-movant and resolve any doubts

in its favor. Id. To be entitled to summary judgment, a defendant must disprove as a

matter of law one of the essential elements of each cause of action or establish 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 summary judgment is made, we apply the same

legal sufficiency standard we apply in reviewing a directed verdict. Kimber v. Sideris, 8

S.W.3d 672, 675-76 (Tex.App.--Amarillo 1999, no pet.). Therefore, we ascertain if the

non-movant produced more than a scintilla of probative evidence to raise a fact issue on

the material questions presented. Id. When, as in the case before us, the trial court does

not state the grounds on which the summary judgment motion was granted, we must affirm




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it if any of the grounds stated in the motion are meritorious. Carr v. Brasher, 776 S.W.2d

567, 569 (Tex. 1989).


       An employer commits an unlawful employment practice if, because of a disability,

the employer discharges an individual or discriminates in any other matter in connection

with the compensation or the terms, conditions, or privileges of employment. Tex. Lab.

Code Ann. § 21.051(1) (Vernon 1996). To prevail on a disability claim, a plaintiff is not

required to prove that his disability was the sole cause of his termination. Gorges

Foodservice, Inc. v. Huerta, 964 S.W.2d 656, 667 (Tex.App.--Corpus Christi 1997, pet.

withdrawn). With respect to an individual, a disability is defined to mean, “a mental or

physical impairment that substantially limits at least one major life activity of that individual,

a record of such an impairment, or being regarded as having such an impairment.” Id. §

21.002(6) (Vernon Supp. 2002).            To establish a prima facie case of disability

discrimination, the plaintiff must make a threshold showing that he has a disability. Garcia

v. Allen, 28 S.W.3d 587, 596 (Tex.App.--Corpus Christi 2000, pet. denied).


       A major life activity is in the nature of caring for one’s self, performing manual tasks,

walking, seeing, hearing, speaking, breathing, learning and working. Hartis v. Mason &

Hanger Corp., 7 S.W.3d 700, 703 (Tex.App.--Amarillo 1999, no pet.). To substantially limit

such a major life activity, the person must be unable to perform an activity that the average

person in the general population can perform or be significantly restricted as to the

condition, manner or duration under which he can perform a major life activity as compared

to that which the average person can perform. Morrison v. Pinkerton Inc., 7 S.W.3d 851,


                                                3
855 (Tex.App.--Houston [1st Dist.] 1999, no pet.) (citing 29 C.F.R. § 1630.2(j)). The

limitation must be considerable or specified to a large degree. Sutton v. United AirLines,

Inc., 527 U.S. 471, 491 119 S.Ct. 2139, 2150, 144 L.Ed.2d 450 (1999). Furthermore, the

determination of a disability must be made with reference to the corrective effects of

mitigating measures. Id. at 488.


      Appellant was employed as a zookeeper for the City in October 1997, and was

terminated at the end of his one-year probationary period for alleged poor performance.

He was hearing impaired to some extent in both ears, but was able to wear a hearing aid

in only one ear. At the time he was interviewed for the position, he made known to his

immediate supervisor Lynn Killam, and her supervisor Barbara Lester, that he had a

“hearing problem” and wore a hearing aid. However, there is no evidence that he informed

them of any limitations caused by his “hearing problem” at that time.


      Appellant contends that at the onset of his employment, he asked Killam if he could

have a better radio and telephone, but was told there was no money. He explained his

problem as follows:


      Some individuals – people have soft voice [sic], and they need to speak
      louder. Sometimes if I don’t have good volume control with devices, it’s
      going to make it more difficult for me to hear. If there’s many variety of
      noises that will drown out that individual person that I’m speaking with, I will
      have difficult hearing. It’s bestly – it’s best for my benefit, hopefully some
      situations I need – I do need to be accommodated in order to benefit my
      hearing and communication, my understanding.




                                             4
He stated that Killam did not like him having to ask her to repeat something. However, he

testified in his deposition that co-workers also complained they could not hear on their

radios and had difficulties with their telephones. He further averred that he was loaned a

radio from another section once, which worked better and he was able to hear more

clearly. That radio was not especially equipped for the hearing impaired. The radios were

assigned to a particular section of the zoo, not to particular individuals. In requests for

admissions, appellant admitted his hearing disability posed no limitation on his ability to

perform the essential functions of his position at the zoo, and he testified in his deposition

that his hearing loss or impairment did not affect his ability to do his job.


       One of his co-workers, Ronald Santos, stated that some of the telephones did not

function properly and some were more reliable than others. Santos had the same trouble

with the phone when he worked in appellant’s area. Another co-worker, Regina Cravens,

stated that almost all of the phone lines had static, although the phone in appellant’s area

had the worst static. Appellant also complained that the background noise of the monkeys

sometimes prevented him from being able to hear, but Santos concurred that the noises

of the animals could interfere with the ability to hear what co-workers were saying.


       As already stated, appellant must show that his hearing condition with the use of his

hearing aid substantially limits him in a major life activity. The complaints made by

appellant as to the functioning of the radio and telephone were also made by other

employees. Further, when appellant had the opportunity to use a better functioning radio,

he claimed to have no trouble hearing, even though there was no special equipment on the


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radio that would make it function better for a hearing impaired person. Thus, while the zoo

may have needed better quality telephones and radios in general, and while the zoo may

have been a noisy environment at times, appellant has made no showing that the problems

he suffered distinguished him from the general population, and therefore his hearing

problems cannot be considered incapacitating. See Morrison, 7 S.W.2d at 856.


       The subjective belief of appellant that he had a disability, even with the use of his

hearing aid, which should have been accommodated by the City, is not sufficient to

establish a prima facie case of employment discrimination. Jones v. Jefferson County, 15

S.W.3d 206, 210 (Tex.App.--Texarkana 2000, pet. denied). Similarly, the subjective beliefs

of his co-workers, several of whom testified that they believed he had difficulty because of

his hearing impairment, are not sufficient to establish a prima facie case. Martin v. Kroger

Co., 65 F.Supp.2d 516, 553 (S.D. Tex. 1999), aff’d, 224 F.3d 765 (5th Cir. 2000).


       Appellant submitted his own affidavit, which stated that his hearing ability in his right

ear is 42% of normal hearing capacity and his left ear without a hearing aid is 54%, and

with a hearing aid is 82% of normal hearing capacity. However, there is nothing in the

record to show how those percentages were determined, and no expert testimony was

offered with respect to the extent of appellant’s hearing impairment. Cf. City of Austin v.

Gifford, 824 S.W.2d 735, 740 (Tex.App.--Austin 1992, no writ) (audiologist’s report of

severe to profound hearing loss and expert testimony that a person so afflicted is often

perceived as unable to perform job duties supported handicap finding). Although appellant

argues that all the matters in his affidavit are within his personal knowledge, there is no


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showing that he has the expertise to determine the exact extent of his hearing impairment

with or without a hearing aid.


       Next, we must determine whether appellant is disabled because he has a record of

such impairment. To prevail on that claim, appellant must show he has a history of or has

been misclassified as having an impairment that substantially limits one or more major life

activities. Sherrod v. American Airlines, Inc., 132 F.3d 1112, 1120-21 (5th Cir. 1998). The

type of records contemplated include, but are not limited to, educational, medical, or

employment records. 29 C.F.R. pt. 1630, app. § 1630.2 (k) (2001).1 Appellant has not

offered any such records or records similar to them into evidence in this case.


       Further, appellant had previously worked for one employer for 14 1/2 years, but did

not request any accommodation until he had been there over seven years, at which time

he requested a volume control phone only after his supervisor 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 was already a volume control telephone and his supervisor

spoke more loudly in his presence. There is no evidence the City had knowledge of this

information and, without more, does not make out a prima facie case that appellant has

a record of impairment that substantially limits a major life activity.




       1
        Analogous provisions of the Americans With Disabilities Act may be used to
interpret disability discrimination provisions under state law. Kiser v. Original, Inc., 32
S.W.3d 449, 452 (Tex.App.--Houston [14th Dist.] 2000, no pet.)

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       We must next consider whether there is evidence that the City regarded appellant

as having a substantially limiting impairment. Under this standard, the City had to believe

that appellant had a substantially limiting impairment that he did not have or that he had

a substantially limiting impairment when the impairment was not so limiting. Morrison, 7

S.W.3d at 857. Simple awareness of an impairment is insufficient to prove the employer

regarded the employee as disabled. E.E.O.C. v. Exxon Corp., 124 F.Supp.2d 987, 998

(N.D. Tex. 2000).


      Appellant claims that because he was terminated for his “general lack of ability to

comprehend,” a fact issue has been raised that the City perceived appellant to be unfit for

the job because of his hearing impairment. First, we note that the referenced phrase,

which was a “general lack of ability to comprehend and follow instructions properly,” was

a summation in a letter by Barbara Lester after a specific itemization of infractions

committed by appellant, including leaving primary animal containment doors unlocked,

leaving secondary containment doors open while away from the area, leaving two primary

and one secondary animal containment doors open and one tertiary animal containment

door open at the same time, inaccurate animal observations and documentations, failure

to follow standard operating procedures such as wearing a mask while hosing and cleaning

animal cages, failure to follow instructions about wearing a mask in the primate area when

he has a cold, and the existence of mold in a juice container and rancid juice on two

separate occasions.




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       Killam was appellant’s immediate supervisor and conducted his two performance

evaluations, four work progress reports, and issued his written reprimand for leaving doors

unlocked or open, all upon which the decision to terminate was purportedly based.

Appellant testified that he believed Killam did not think he was really having trouble hearing

her and she did not perceive him as having a substantial limitation. He also did not name

any other zoo managers that perceived him as being substantially limited. Further, there

is no evidence that appellant was treated differently from any other employee who

requested a new radio or telephone. Proof that only creates a mere suspicion of a fact is

less than the scintilla of proof required to survive summary judgment.            Kindred v.

Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983).


       Appellant argues that McInnis v. Alamo Community College, 207 F.3d 276 (5th Cir.

2000) supports his proposition that the reference to his lack of ability to comprehend raises

a fact issue because the disability at issue in that case was speech related, and the

employer referred to the employee as having oral communication problems. However, that

court found there was a genuine fact issue as to whether the employee was regarded as

disabled because the compliance coordinator testified she could tell from his file that he

was disabled or perceived as such and there was a letter indicating that his transfer to full-

time teaching was an accommodation for 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 believe appellant has made a prima facie case that he suffered from




                                              9
a disability or was regarded as such, and the court’s order granting summary judgment can

be sustained on that issue alone.


      Because we have found that the summary judgment should be affirmed on the basis

discussed, it is not necessary for us to address whether appellant was treated less

favorably than non-disabled employees. The judgment of the trial court is affirmed.



                                                John T. Boyd
                                                 Chief Justice

Do not publish.




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