Court of Appeals of Texas, Dallas.

Terri GILLETTE, Appellant,

v.

CITY OF FARMERS BRANCH, Don Moore and Dale Whitney, Appellees.

No. 05-98-00483-CV.

|

Jan. 19, 2001.

Before MORRIS, JAMES, and DODSON,¹ JJ.

OPINION

DODSON.

*1 Terri Gillette appeals the trial court’s grant of summary judgment in favor of the City of Farmers Branch (the City), Don Moore and Dale Whitney in this suit alleging disability discrimination, gender discrimination, intentional and grossly negligent infliction of emotional distress, retaliation for filing a workers’ compensation claim and negligence. In six issues, Gillette generally contends the trial court erred in granting summary judgment on each of these causes of action. In a seventh issue, Gillette contends the trial court erred in granting summary judgment on the basis of immunity. We affirm the trial court’s judgment.

I. Background

The City employed Gillette in March 1986 as Warehouse Attendant. Moore is the Director of Equipment Services and has managerial responsibility over the warehouse. Gillette reported directly to Moore until October 1993. At that time, she began reporting to Dale Whitney, the Fleet Maintenance Superintendent.

In 1992, Gillette attempted suicide and began receiving psychiatric treatment for depression. This psychiatric treatment continued until she was terminated. In 1993, Gillette suffered an on the job injury to her knee. From November 22, 1993 until February 2, 1994, the City assigned Gillette to various light duty jobs until her lifting restrictions were removed. On February 2, 1994, Gillette was released to work with no lifting restrictions and was returned to her job as Warehouse Attendant. In 1994, Gillette missed over fourteen weeks of work in the first ten months of the year.² Gillette attributes most of this missed work to her depression and psychiatric medication. The City terminated Gillette on November 1, 1994. As reasons for the termination, the City cited the following: (1) discrepancies in the inventory balance; (2) allowing City personnel to enter the warehouse for “self service”; (3) unsatisfactory maintenance of fuel usage and inventory records; (4) unsatisfactory housekeeping responsibilities; (5) an inability to accurately maintain fuel usage and inventory records in a timely manner; and (6) unsatisfactory attendance.

After Gillette’s termination, she brought suit against the City, Moore and Whitney. The City, Moore and Whitney filed a motion for summary judgment, which the trial court granted. Gillette now appeals the disposition of the motion for summary judgment.

II. Standard of Review

The standard for reviewing a summary judgment is well established. See Nixon v. Mr. Property Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex.1985). A defendant who moves for summary judgment must show the plaintiff cannot prevail as a matter of law. A defendant may meet this burden by either: (1) disproving at least one essential element of each theory of recovery; or (2) conclusively proving all elements of an affirmative defense. Wornick Co. v. Casas, 856 S .W.2d 732, 733 (Tex.1993). A matter is conclusively established if ordinary minds cannot differ as to the conclusion to be drawn from the evidence. Triton Oil & Gas Corp. v. Marine Contractors & Supply, Inc., 644 S.W.2d 443, 446 (Tex.1982). After the movant has established a right to summary judgment, the burden shifts to the nonmovant to present evidence creating a fact issue. See Kang v. Hyundai Corp., 992 S.W.2d 499, 501 (Tex.App.-Dallas 1999, no pet.).

III. Discussion

1. Immunity

*2 We first address the immunity defense. In Gillette’s fourth issue, she contends the trial court erred in granting summary judgment for Moore and Whitney on the affirmative defense of immunity. All of Gillette’s claims were based on either Section 451 of the Texas Labor Code or the Texas Commission on Human Rights Act (“TCHRA”). See Tex.Labor Code Ann. § 451 (Vernon 1996) (“Section 451”); Tex.Lab.Code Ann. §§ 21.001-21.306 (Vernon 1996 & Supp.2000) (“TCHRA”). Section 451 of the Texas Labor Code applies only to employers and therefore employees are not individually liable. Tex. Mexican Ry. Co. v. Bouchet, 963 S.W.2d 52, 56 (Tex.1998); Stewart v. Littlefield, 982 S.W.2d 133, 136-137 (Tex.App.-Houston [1st Dist.] 1998, no pet.). In addition, under the TCHRA only employers are liable and therefore supervisors and managers are not liable in their individual capacities for such acts of discrimination. See Jenkins v. Guardian Indus. Corp., 16 S.W.3d 431, 439 (Tex.App.-Waco 2000, no pet.) (citing DeMoranville v. Specialty Retailers, Inc., 909 S.W .2d 90 (Tex.App.-Houston [14th Dist.] 1995), rev’d in part on other grounds, 933 S.W.2d 490 (Tex.1996); Benavides v. Moore, 848 S.W.2d 190 (Tex.App.-Corpus Christi 1993, writ denied)). Because all of Gillette’s causes of action are based on either Section 451 or the TCHRA and because Moore and Whitney cannot be personally liable under these statutes, we conclude the trial court did not err in granting summary judgment to Moore and Whitney based on immunity. We overrule Gillette’s fourth issue.

2. Sex Discrimination

In Gillette’s first issue, she contends the trial court erred in granting summary judgment on her sex discrimination claim. In this context, Gillette simply states she established a prima facie case of sex discrimination. However, Gillette does not controvert the City’s specific summary judgment grounds, particularly the grounds that (1) she was not replaced by someone else outside the protected class; (2) there was a legitimate, non-discriminatory reason for terminating Gillette; and (3) she was not discharged as a pretext for sex discrimination. The trial court could have granted summary judgment on one of these grounds. While a broadly worded point of error complaining the trial court erred in granting summary judgment is sufficient to present error for review, we must affirm a summary judgment as to a particular claim when an appellant does not present argument challenging all grounds on which summary judgment could have been granted as to that claim. See Smith v. Tilton, 3 S.W.3d 77, 83 (Tex App.-Dallas 1999, no pet.). Because Gillette failed to challenge each summary judgment ground on appeal, we conclude she has waived this issue for review.

Additionally, in Gillette’s first issue, she cites us to no record references providing support for her position that she established a prima facie case of sex discrimination. Texas Rule of Appellate Procedure 38.1(h) provides an appellant’s brief “must contain a clear and concise argument for the contentions made, with appropriate citations to … the record.” Tex.R.App.P. 38.1(h). Because Gillette failed to include appropriate record citations supporting her cause of action for sex discrimination, we conclude she has failed to present her complaints on this cause of action for review. See Tex.R.App.P. 38.1; Keever v. Finlan, 988 S.W.2d 300, 314 (Tex.App.-Dallas 1999, pet. dism’d). We overrule Gillette’s first issue.

3. Disability Discrimination

*3 In Gillette’s second issue, she contends the trial court erred in granting summary judgment on her disability discrimination cause of action. According to Gillette, the City failed and refused to accommodate her known psychiatric disability, including chronic depression and fatigue, pursuant to the TCHRA. Gillette also contends she was harassed, discriminated against, retaliated against, and ultimately wrongfully terminated based on her disability.

Gillette brought her claim for disability discrimination under the TCHRA. See Tex.Lab.Code Ann. §§ 21.001-21.306. The purpose of the TCHRA is to provide provisions for executing the policies embodied in Title I of the Americans with Disabilities Act (ADA). Id. § 21.001(3) (Vernon 1996). It is an unlawful employment practice for an employer to fail or refuse to make a reasonable workplace accommodation to a known physical limitation of an otherwise qualified individual with a disability unless the employer demonstrates the accommodation would impose an undue hardship on the operation of the business. Id. § 21.128 (Vernon 1996). We look to analogous federal precedent because the TCHRA seeks to promote federal civil rights policy. See Morrison v. Pinkerton Inc., 7 S.W.3d 851, 854 (Tex.App.-Houston [1st Dist.] 1999, no pet.) (citing Holt v. Lone Star Gas Co., 921 S.W .2d 301, 304 (Tex.App.-Fort Worth 1996, no writ)).

One of the City’s grounds for summary judgment asserted that Gillette did not request a “reasonable workplace accommodation” because she requested liberal sick leave without penalty. The City’s summary judgment evidence established that Gillette was absent from work for over 580 hours in the approximately ten months leading up to her termination. The City also provided evidence that these absences “caused significant serious disruptions of staffing at the warehouse.” In addition, the City cited numerous cases indicating that a request for “liberal sick leave without penalty” was an unreasonable request as a matter of law. See, e.g., Rogers v. Int’l Marine, 87 F.3d 755, 759 (5th Cir.1996) (“[a]n essential element of any job is an ability to appear for work and to complete assigned tasks within a reasonable period of time”); Tyndall v. Nat’l Educ. Ctrs., 31 F.3d 209, 214 (4th Cir.1994); Jackson v. Veterans Admin., 22 F.3d 277, 278-79 (11th Cir.1994); Lewis v. Zilog, Inc., 908 F.Supp. 931, 946 (N.D.Ga.1995). Gillette failed to challenge this summary judgment ground in her appellate brief. Furthermore, this determination of whether she was a qualified individual who requested reasonable accommodation is part of her prima facie case. Because this ground was unchallenged, we conclude Gillette has waived this issue for review. See Tilton, 3 S.W.3d at 83. We overrule Gillette’s second issue.

4. Retaliation for Filing a Workers’ Compensation Claim

In Gillette’s third issue, she contends the trial court erred in rendering summary judgment on her claim for retaliation due to her filing of a workers’ compensation claim under Section 451 of the Texas Labor Code. See Tex.Labor Code Ann. § 451. Gillette’s petition alleged the City discriminated and retaliated against her because she acted to receive benefits pursuant to Section 451. In the City’s motion for summary judgment, it asserted two grounds for summary judgment on the retaliation claim: (1) Gillette cannot demonstrate a causal link between the decision to discharge her and the filing of her workers’ compensation claim; and (2) the City discharged Gillette for legitimate and non-discriminatory reasons.

*4 Section 451 of the Texas Labor Code prohibits an employer from discharging an employee for filing a workers’ compensation claim in good faith. See Tex.Lab.Code Ann. § 451.001 (Vernon 1996). A prima facie case of retaliation consists of the following elements: (1) the plaintiff engaged in a protected activity; (2) an adverse employment action occurred; and (3) there was a causal connection between participation in the protected activity and the adverse employment decision. Azubuike v. Fiesta Mart, Inc., 970 S.W.2d 60, 65 (Tex.App.-Houston 1998, no pet.). In determining the causal connection, an employee need not show she was fired solely because of the workers’ compensation claim. See Cont’l Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 450-51 & n. 3 (Tex.1996). However, she must establish that “but for” the filing of the claim, the discharge would not have occurred when it did. See id.

In the City’s motion for summary judgment, it first attempted to negate the last element regarding a causal connection. According to the City, there was no causal connection between the filing of the workers’ compensation claim and Gillette’s discharge. The workers’ compensation claim was based on an on the job injury that occurred around July 16, 1993. Gillette was placed on light duty jobs until she was released from lifting restrictions on February 2, 1994. The City terminated Gillette on November 1, 1994, approximately nine months after she was released from lifting restrictions. According to the City, Gillette set forth no facts supporting her conclusory claim that she was terminated for filing a claim pursuant to Section 451. In addition, the City contends it provided legitimate, non-discriminatory reasons for discharging Gillette. These reasons include poor work performance and unsatisfactory attendance.

In response to summary judgment, Gillette argued very few facts to support her subjective belief that she was retaliated against because of her on the job injury and workers’ compensation claim. Specifically, she argued as follows:

Here, we have change of status evidence, direct contact with her Doctor, retaliation, inconsistent enforcement, writeups the day of her return from OJI leave, causal links set out in the City’s own counseling and evaluation forms, disregard of Doctor’s orders and recommendations, flaunting of such disregard, cruel and insensitive actions and remarks, knowledge, negative attitudes, violation of progressive discipline policies and basic fairness, discriminatory treatment, and abuse when she asked for certain safety equipment or training.

These allegations do not include any citations to exhibits or any factual evidence regarding these beliefs. The only analysis in Gillette’s appellate brief regarding her retaliation claim included the identical language quoted above. In this regard, the only potential factual information suggesting a causal connection between her filing a workers’ compensation claim and any retaliation involves the suggestion that she was written up the day she returned from leave for an on-the-job injury. However, Gillette does not cite us to any record references to establish evidence to support this claim or to provide background information regarding why she was written up and the relevant dates. In addition, after the City provided a nondiscriminatory reason for the discharge, namely unsatisfactory attendance and job performance, and provided supporting documentary evidence regarding these reasons, Gillette failed to rebut this assertion with controverting evidence. Based on these facts, we conclude Gillette’s subjective beliefs and assumptions do not amount to evidence sufficient to raise a fact issue precluding summary judgment. See Cont’l Coffee, 937 S.W.2d at 452. We overrule Gillette’s third issue.

5. Intentional and Grossly Negligent Infliction of Emotional Distress and Negligence

*5 In Gillette’s fifth issue, she contends the trial court erred in granting summary judgment on the intentional and grossly negligent infliction of emotional distress claims. In her sixth issue, she contends the trial court erred in granting summary judgment on her negligence claim.

With respect to Gillette’s negligence claim, she contends in her petition that the City was negligent in: (1) failing to provide a safe work environment; (2) failing to provide workplace procedures and rules designed to eliminate or prevent injury through sexual discrimination and failure to accommodate her disability as requested by her psychiatrist; and (3) failing to exercise ordinary care. Gillette contends these acts caused her mental and emotional suffering and lost wages. In the City’s motion for summary judgment, it asserted the City was immune from tort liability with the exception of the limited waiver found in the Texas Tort Claims Act. The City argued that, because Gillette’s claim was not within the provisions in the Tort Claims Act, she could not recover against the City for negligence or intentional or grossly negligent infliction of emotional distress.

The doctrine of sovereign immunity from suit provides that no suit may be maintained against units of state government unless express consent has been given. Tex. Parks & Wildlife Dep’t v. Garrett Place, Inc., 972 S.W.2d 140, 143 (Tex.App.-Dallas 1998, no pet.). The Texas Tort Claims Act provides that the State waives its sovereign immunity for, among other things, damages caused by a condition or use of tangible personal property. Tex.Civ.Prac. & Rem.Code Ann. § 101.021 (Vernon 1997). The City properly asserted the affirmative defense of immunity in its motion for summary judgment. In response, Gillette contends she is entitled to sue the City because the case involves a condition or use of tangible personal property. However, she does not, either in her motion for summary judgment or on appeal, explain what tangible personal property is involved in the present case. Furthermore, having reviewed the facts of this case, we cannot conclude this case involves a condition or use of tangible personal property. Therefore, because the City asserted the defense of sovereign immunity in its motion for summary judgment and Gillette failed to appropriately rebut this affirmative defense, we conclude the trial court did not err in granting summary judgment on the claims for negligence, intentional infliction of emotional distress and grossly negligent infliction of emotional distress on the basis of immunity. We overrule Gillette’s fifth and sixth issues.

6. Evidentiary Issues

In Gillette’s seventh issue, she contends the trial court erred in granting summary judgment without ruling on her motion to strike and motion in limine. In this context, Gillette contends she objected to certain deposition testimony and affidavits attached to the City’s motion for summary judgment. She contends these statements were not based on personal knowledge, contained conclusory statements and unsubstantiated opinions, and contain no affirmative averment that the statements contained were true. Gillette failed to obtain a ruling on these objections. Therefore, she has not preserved the issue for review. See Tex.R.App.P. 33.1. Furthermore, the trial court’s action on the motion in limine presents nothing for review. We overrule Gillette’s seventh issue.

*6 Having overruled all of Gillette’s issues, we affirm the trial court’s judgment.

	Footnotes
1		The Honorable Carlton B. Dodson, Justice, Court of Appeals, Seventh District of Texas at Amarillo, Retired, sitting by assignment.
2		Gillette was absent for 137 hours of sick leave, 120 hours for vacation, and 325 hours were “absent without pay.”