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Garcia v. Allen6/8/2000
continued to have problems with my knee. In April of 1997 the pain was so bad I could not function anymore.
The undisputed summary judgment evidence shows that the alleged defamatory statements were empirically true. The fact that Garcia was never able to fully perform all the functions required by his job does not render untrue the later statement that he cannot perform the functions of his job. The undisputed evidence shows that Garcia's knee condition grew progressively worse, and the restrictions placed upon him in 1997 were more severe than they had ever been. Both of Garcia's supervisors stated that with those restrictions, Garcia could not perform the essential functions of a process analyzer mechanic.
In his response, Garcia does not challenge those facts. Rather, he focuses on evidence that he contends shows malice on the part of his supervisors. The closest he comes to controverting Celanese' evidence on the issue of truth is the following unsupported statement in his brief:
Plaintiff has set forth his prima facie case of slander by the communications made by Stewart Allen and Hector Garcia to the effect that Roel could not do his job with climbing, kneeling, or squatting restrictions when they actually knew that he did his full duties in January of 1995 without almost identical restrictions. They knew their statements to Curtis Blackburn were false.
This is insufficient to raise a fact issue regarding Celanese's affirmative defense of truth. We affirm the trial court's summary judgment on the defamation claims.
III. Discrimination Cause of Action
Next, Garcia contends the trial court erred in granting summary judgment against him on his discrimination claim. Garcia contends that he was the victim of discrimination because of a physical disability, which is prohibited by the Texas Commission on Human Rights Act (TCHRA). Tex. Labor Code Ann. § 21.001 et. seq. (Vernon 1996). Celanese counters that Garcia does not have a "disability" as defined by the Act, that his physical condition impairs his ability to reasonably perform his job , and that the accommodations sought by Garcia are not required by the Act.
1. Is Garcia "Disabled" Under the Statute?
Among other things, the TCHRA prohibits an employer from discharging or otherwise discriminating against an employee because of a disability. Tex. Labor Code Ann. § 21.051(a). To set up a prima facie case of discrimination, a plaintiff must make a threshold showing that he has a disability. Morrison v. Pinkerton Inc., 7 S.W.3d 851, 854-55 (Tex. App.-Houston [1st Dist.] 1999, no pet. h.). An individual can be classified as disabled under any one of the three definitions of the term contained in the Act. Id. "Disability" is defined as (1) a physical or mental impairment that substantially limits one or more of the major life activities of the individual, (2) a record of such an impairment, or (3) being regarded as having such an impairment. Tex. Labor Code Ann. § 21.002(6) (Vernon's Supp. 2000).
A "major life activity" is considered to be something akin to "caring for oneself, 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. h.) (quoting, 29 C.F.R. § 1630.2(i)). The Code of Federal Regulations provides the example of: "A diabetic who without insulin would lapse into a coma would be substantially limited because the individual cannot perform major life activities without the aid of medication." 29 C.F.R. § 1630.2(j). Garcia contends that the loss of his kneecap is a such a disability. We disagree.
"The
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