Court of Appeals of Texas,

Eastland.

Clifford RAYMER, Appellant

v.

ORANGE COUNTY, Texas, Appellee.

No. 11-98-00243-CV.

|

June 15, 2000.

Attorneys & Firms

Conrell Brown and Carla S. Danbury, for Clifford Raymer.

Connie Wilhite, for Orange County, Texas.

Panel consists of: ARNOT, C.J., and McCLOUD, S.J.,³ and DICKENSON, S.J.⁴

OPINION

AUSTIN McCLOUD, Senior Justice.

*1 Clifford Raymer, a former Orange County Deputy Sheriff, sued Orange County seeking damages for retaliatory discharge under the Texas Workers’ Compensation Act¹ and for unlawful discrimination under the Americans with Disabilities Act (ADA).² The trial court granted a summary judgment for Orange County. We affirm in part, and we reverse and remand in part.

In April of 1994, Raymer was involved in an automobile accident while performing his duties as a patrol sergeant for the Orange County Sheriff’s Department. Shortly after the accident, Orange County filed a claim on behalf of Raymer under Orange County’s workers’ compensation insurance. Raymer sustained a back injury in the accident, and he received workers’ compensation income benefits until January 8, 1996. The income benefits ceased because Raymer’s treating doctors testified that he had achieved maximum medical improvement. Orange County continued to pay Raymer his full salary throughout the remainder of his employment pursuant to TEX. CONST. art. III, § 52e.

Raymer was off duty on medical leave a number of times following the accident. At times, when Raymer would return to work as a patrol sergeant, the gun belt that he was required to wear caused his back to hurt. The belt was heavy because of various items attached to it, such as a gun, radio, handcuffs, baton, and bullets. Raymer underwent back surgery in April of 1996, and he remained on medical leave following the surgery until his employment was terminated in January of 1997.

At the time of the accident, Huel Fontenot was sheriff of Orange County. Sheriff Fontenot deputized or commissioned Raymer on January 1, 1993. On December 31, 1996, Sheriff Fontenot’s term as sheriff of Orange County ended, and Michael White became sheriff on January 1, 1997. The evidence is conflicting as to whether Raymer was not deputized or was deputized and terminated on the same day. It is not material as to whether he was deputized and immediately terminated or never deputized by Sheriff White. For our purposes, Raymer was terminated on January 6, 1997.

The trial court’s order granting summary judgment does not specify the ground or grounds relied on for the court’s ruling. Therefore, the summary judgment will be affirmed if any of the theories advanced are meritorious. Carr v. Brasher, 776 S.W.2d 567 (Tex.1989).

Orange County filed a no-evidence motion for summary judgment pursuant to TEX.R.CIV.P. 166a(i). Orange County alleged, among other things, that there was no evidence of a causal link between Raymer’s termination and the filing of his claim for workers’ compensation. Regarding Raymer’s claim under the ADA, Orange County alleged, among other things, that there was no evidence that Raymer was an individual who was “substantially limited” in the major life activity of working. It is clear from the motion for summary judgment filed by Orange County that the thrust of the motion is a no-evidence motion under Rule 166a(i). However, in the same motion, Orange County sought a traditional or ordinary summary judgment under TEX.R.CIV.P. 166a(b), urging that it had conclusively established certain affirmative defenses. We agree with the Texarkana Court in Grant v. Southwestern Electric Power Company, — S.W.3d —- (No. 06-98-00159-CV, Tex.App.-Texarkana, March 30, 2000, no pet’n h.)(not yet reported), that it is a better practice to file two separate motions: one relating to the no-evidence summary judgment and the other relating to the ordinary summary judgment.

*2 Rule 166a(i) provides:

After adequate time for discovery, a party without presenting summary judgment evidence may move for summary judgment on the ground that there is no evidence of one or more essential elements of a claim or defense on which an adverse party would have the burden of proof at trial. The motion must state the elements as to which there is no evidence. The court must grant the motion unless the respondent produces summary judgment evidence raising a genuine issue of material fact.

The rule expressly provides that a “party without presenting summary judgment evidence” may move for a no-evidence summary judgment under Paragraph (i). We point out that Paragraphs (a) and (b) of Rule 166a expressly provide that a party may move for summary judgment “with or without” supporting affidavits. We think it is clear that a party filing a no-evidence motion for summary judgment should not file any “summary judgment evidence.” The hybrid motion filed by Orange County contains substantial summary judgment evidence. We will disregard any summary judgment evidence filed by Orange County when reviewing the no-evidence motion. Hight v. Dublin Veterinary Clinic et al, — S.W.3d —- (No. 11-99-00151-CV, Tex.App.-Eastland, June 8, 2000, no pet’n h.)(not yet reported). Rule 166a(i) states that the trial court must grant the no-evidence motion unless the non-movant produces summary judgment evidence raising a genuine issue of material fact. In reviewing a summary judgment, we must accept as true any evidence in favor of the non-movant, indulging every reasonable inference and resolving all doubts in favor of the non-movant. El Chico Corporation v. Poole, 732 S.W.2d 306 (Tex.1987).

The general rule is that the deputy sheriff serves at the pleasure of the sheriff. The elected sheriff may terminate a deputy at will. A deputy sheriff’s term expires when the sheriff’s term expires, and a newly-elected sheriff is under no duty to rehire deputies. Williams v. Bagley, 875 S.W.2d 808 (Tex.App.-Beaumont 1994, no pet’n); Samaniego v. Arguelles, 737 S.W.2d 88 (Tex.App.-El Paso 1987, no pet’n). Orange County, however, correctly agrees that the termination of Raymer must not have violated Section 451.001 of the Texas Labor Code or the ADA. See Burfield v. Brown, Moore & Flint, Inc., 51 F.3d 583 (5th Cir.1995).

An employee can recover damages for retaliatory discharge under the Workers’ Compensation Act only if he proves that, without his filing a workers’ compensation claim, the discharge would not have occurred when it did. Trico Technologies Corporation v. Montiel, 949 S.W.2d 308 (Tex.1997). Orange County argued in its no-evidence motion for summary judgment that there was no evidence of the required causal link between Raymer’s workers’ compensation claim and his discharge.

There was no direct evidence that Sheriff White terminated Raymer’s employment because he was pursuing workers’ compensation benefits. However, the required causal connection can be established by circumstantial evidence. At one point, Raymer was released by his doctor for “light duty status.” Raymer delivered the doctor’s report to his supervisor, Captain David Peck, who conferred with Sheriff Fontenot. Raymer stated by deposition “that they stated there was no light duty and if I could not get a full regular duty status release, that I would not have a job.” Raymer then went to the doctor and told the doctor that he would have to have another release stating that Raymer was released for “regular duty” or that he would lose his job. The doctor gave Raymer another release, and Raymer returned to “regular duty” as a patrol sergeant. The captain was aware that Raymer was in pain, and Raymer had complained to the captain that the gun belt hurt his back. Captain Peck recommended to Sheriff White that Raymer not be redeputized.

*3 Raymer was off duty on medical leave when Sheriff White took office on January 1, 1997. Sheriff White knew that Raymer was scheduled for a second back surgery in January of 1997. The only two officers not recommissioned or redeputized by Sheriff White were Raymer and William Powell, the two officers out on workers’ compensation medical leave. There is evidence that certain officers who engaged in serious questionable conduct were redeputized, while Raymer, who may have engaged in less questionable conduct, was not redeputized.

Donald Lynn Harmon stated in an affidavit that, at a union meeting, Sheriff White said that he was not recertifying Raymer and Powell because “he didn’t see in the foreseeable future of them returning back to work.”

Sheriff White gave the following reason for why he did not redeputize Raymer:

Q: Okay. You’ve said that you made a decision not to redeputize Mr. Raymer. Why did you make that decision not to redeputize him?

A: Basically after the conversation in December, I thought about it in detail for quite a while. And I just felt it was a situation where he was telling me that if I would make him my chief deputy, that he would come back to work, and-but if I didn’t, then he was going to be off some more. And with that being off, I felt that he knew that was putting a hardship on the department with a short person and having to pay overtime, which there was no overtime money left at that time. It had all been used before I[had] taken office. The majority of it had.

And I just felt it was, hey-that it was trying to put me in a position that I didn’t want to be in; that, you know, “I’ll come to work if I-if you make me the chief deputy. If you don’t, then I’m going to be off and go have more surgery.” I just almost felt like it was, you know, “You’re either going to make me chief deputy or I’m going to cost you a lot of money.” And I just felt that he was putting me in a position that I didn’t feel comfortable with.

Sheriff White stated that he felt like it was “blackmail” and that he did not want someone like that working for him.

Raymer described the conversation regarding his applying for the chief deputy job in the following manner:

Q: Did you tell Michael White that you would not have this surgery if he would make you his chief deputy?

A: No, Ma‘am.

Q: What did you tell him about your second surgery?

A: That I would have to have the second surgery, that if-he was not going to make a determination for three months. It was common knowledge. He had even stated that to place someone as chief deputy, it would take a three-month process.

At that time, I told him I was going to have surgery and everything, but if the surgery went good and everything looked good and if I was still down by the time he was getting close to making his decision, if I was still down or off on doctor’s orders, that I would request the doctor to see if he would release me, I could not force the doctor to, I’m going under his medical opinion on everything and his determination, to see if he would release me to where I could come back to work-

*4 Q: Now, let me-so, what was the time frame that you thought that you were going to ask the doctor if you got that job-what was the time frame you thought you might ask the doctor to see if you could go back to work?

A: It’d be after the surgery. And the opinion or the consensus was it was going to take him a three-month process to determine his chief deputy.

We hold that the circumstantial evidence that we can consider in this no-evidence summary judgment raises a genuine issue of material fact that, but for Raymer’s filing and pursuing his compensation claim, Raymer’s discharge by Sheriff White would not have occurred when it did. A fact finder could reasonably conclude from the summary judgment evidence that Orange County, through its agent, expressed a negative attitude toward Raymer’s injured condition; that Raymer was discriminately treated in comparison to similarly-situated deputies; that the only two deputies who were not redeputized were Raymer and Powell; that they were not redeputized because they were on workers’ compensation medical leave and had pending workers’ compensation claims; and that the reason given by Sheriff White for Raymer’s discharge was false. See Continental Coffee Products Co. v. Cazarez, 937 S.W.2d 444 (Tex.1996). The trial court erred in granting Orange County’s no-evidence motion for summary judgment on the issue of retaliatory discharge because Raymer produced summary judgment evidence raising a genuine issue of material fact.

In its no-evidence motion for summary judgment, Orange County stated that there was no evidence that Raymer suffered from a disability under the ADA. To make out a prima facie case of discrimination under the ADA, a plaintiff must prove that he has a disability, that he is a qualified individual for the job, and that an adverse employment decision was made solely because of his disability. The term “disability” within the meaning of the ADA includes “a physical or mental impairment that substantially limits one or more of the major life activities of such individual.” Still v. Freeport-McMoran, Inc., 120 F.3d 50 (5th Cir.1997). Raymer alleged that, because of his back injury, he was unable to carry out the major life activity of working. The United States Supreme Court in Sutton v. United Air Lines, Inc., 527 U.S. 471, 119 S.Ct. 2139, 144 L.Ed.2d 450 (1999), recently stated the following regarding the major life activity of working:

To be substantially limited in the major life activity of working, then, one must be precluded from more than one type of job, a specialized job, or a particular job of choice. If jobs utilizing an individual’s skills (but perhaps not his or her unique talents) are available, one is not precluded from a substantial class of jobs. Similarly, if a host of different types of jobs are available, one is not precluded from a broad range of jobs. (Emphasis added)

See also Still v. Freeport-McMoran, Inc., supra; Hartis v. Mason & Hanger Corporation, 7 S.W.3d 700 (Tex.App.-Amarillo 1999, no pet’n); Azubuike v. Fiesta Mart, Inc., 970 S.W.2d 60 (Tex.App .-Houston [14th Dist.] 1998, no pet’n).

*5 We agree with Orange County that Raymer failed to produce summary judgment evidence that he was substantially limited from working. Raymer produced no summary judgment evidence that he was unable to perform a “broad range” of jobs. It is clear that Raymer was seeking the job of chief deputy. Raymer stated in his pleadings that he requested to be transferred to Orange County’s investigation or classification departments. Raymer’s complaint was that he could not perform the position of patrol sergeant because he was required to wear the heavy belt. The trial court correctly granted Orange County’s no-evidence motion for summary judgment as to Raymer’s ADA claims.

Orange County contends that it conclusively established certain affirmative defenses and that the trial court, under traditional summary judgment practice as opposed to the no-evidence summary judgment practice, correctly granted the summary judgment. A defendant must conclusively prove every element of an affirmative defense as a matter of law. Randall’s Food Markets, Inc. v. Johnson, 891 S.W.2d 640 (Tex.1995).

Orange County argues that it conclusively established that Sheriff White had a legitimate nondiscriminatory reason for terminating Raymer. Orange County relies upon the conversation quoted earlier where the sheriff concluded that Raymer was attempting to “blackmail” him into appointing Raymer chief deputy. Orange County did not conclusively prove that it had a legitimate nondiscriminatory reason for terminating Raymer. As pointed out earlier, there is evidence that the sheriff stated at the union meeting that Raymer was terminated because of his physical condition, not because of the attempted “blackmail.” Furthermore, the testimony of Raymer disputes what was said between Raymer and the sheriff. The testimony of Sheriff White, an interested witness, was controverted, was not free of inconsistencies, and could not have been readily controverted. TEX.R.CIV.P. 166a(c). Orange County did not conclusively establish that Sheriff White had a legitimate nondiscriminatory reason for terminating Raymer.

Orange County cites DeWitt v. Harris County, 904 S.W.2d 650 (Tex.1995), and Woods v. Moody, 933 S.W.2d 306 (Tex.App.-Houston [14th Dist.] 1996, no writ), to support its argument that it conclusively established that it is immune from the retaliatory claim of Raymer because of the official immunity of its supervisory employees who acted in good faith in the performance of their discretionary duties. The cited cases are not controlling. As we have previously stated, when the evidence of the non-movant, Raymer, is taken as true, there is summary judgment proof that Sheriff White violated Section 451.001 when he discharged Raymer for filing a claim and pursuing his benefits under the Workers’ Compensation Act. Orange County did not conclusively establish that Sheriff White was performing a discretionary duty in good faith within the scope of his authority.

*6 Finally, Orange County argues that the summary judgment should be affirmed as to its contention that Raymer is not entitled to punitive damages under the Texas Workers’ Compensation Act or the ADA. The trial court did not reach this issue, and it is not before us on appeal. Moreover, Orange County’s punitive damages theory would not sustain the trial court’s “take-nothing” judgment against Raymer.

Raymer asserts that he showed discrimination because of a statement made by the trial court at the conclusion of the summary judgment hearing. The ruling of the trial court was not some statement made by the judge but was the final summary judgment signed and entered by the court. In the entered judgment, the trial court did not specify the grounds on which the motion was granted.

The part of the summary judgment order granting Orange County summary judgment on Raymer’s claim for retaliatory discharge is reversed, and that cause of action is remanded. The summary judgment is affirmed as to Raymer’s claims under the ADA.

	Footnotes
3		Austin McCloud, Retired Chief Justice, Court of Appeals, 11th District of Texas at Eastland sitting by assignment.
4		Bob Dickenson, Retired Justice, Court of Appeals, 11th District of Texas at Eastland sitting by assignment.
1		TEX. LAB. CODE ANN. § 451.001 (Vernon 1996).
2		42 U.S.C.A. § 12101 et seq. (1995).