Latoya Basey v. Davita Inc., D/B/A Total Renal Care, Nelda Boatwright and Fresenius Medical Care Holding Inc., D/B/A Fresenius Medical Care North America D/B/A Northwest Houston Dialysis, and Biomedical Applications of Texas, Inc.

Opinion

Affirmed and Memorandum Opinion filed February 24, 2009

Affirmed and Memorandum Opinion filed February 24, 2009.

In The

Fourteenth Court of Appeals

_______________

NO. 14-07-00925-CV

LATOYA BASEY, Appellant

V.

DAVITA, INC., D/B/A TOTAL RENAL CARE, NELDA BOATWRIGHT, AND FRESENIUS MEDICAL CARE HOLDING, INC., D/B/A FRESENIUS MEDICAL CARE NORTH AMERICA D/B/A NORTHWEST HOUSTON DIALYSIS, AND BIOMEDICAL APPLICATIONS OF TEXAS, INC., Appellees

On Appeal from the 55th District Court

Harris County, Texas

Trial Court Cause No. 2006-35032

M E M O R A N D U M  O P I N I O N

In this disability discrimination and tort case, appellant, Latoya Basey, appeals from a take-nothing summary judgment rendered in favor of appellees, DaVita, Inc., d/b/a Total Renal Care, Nelda Boatwright, and Fresenius Medical Care Holding, Inc., d/b/a Fresenius Medical Care North America d/b/a Northwest Houston Dialysis, and Biomedical Applications of Texas, Inc.  Because our disposition is based on settled law, we issue this memorandum opinion and affirm.  See Tex. R. App. P. 47.4.

I.  Factual and Procedural Background

In August 2003, Nelda Boatwright hired Basey as a Patient Care Technician (APCT@) and was Basey=s supervisor at DaVita during Basey=s employment.  The PCT position required repetitive standing, lifting, bending, stooping, and walking.  Basey also had to be able to lift at least thirty-five pounds and have sufficient strength to move patients weighing over one hundred pounds.

In October 2003, Basey allegedly injured her back at work.  Basey did not return to work until June 11, 2004, and, at that time, Basey=s chiropractor restricted her from stooping or twisting for more than two to four hours per day and from lifting more than ten pounds.  Boatwright therefore created a temporary light duty position for Basey, in which Basey answered telephones and delivered messages.  Based on the chiropractor=s evaluation, contained in a workers= compensation status report,  Boatwright expected the restrictions to last only until August 11, 2004.  On September 8, 2004, after Boatwright received the chiropractor=s evaluation continuing the restrictions through November 11, 2004, Boatwright fired Basey.

On September 13, 2004, Basey filed a disability discrimination charge with the Texas Workforce Commission-Civil Rights Division and the Equal Employment Opportunity Commission (AEEOC@).  Two days later, the EEOC dismissed her charge, concluding that Basey=s allegations did not state a claim under any statutes enforced by the EEOC and did not involve a disability as defined by the Americans with Disabilities Act (AADA@).

On March 2, 2005, Basey applied for a PCT position at the Northwest Houston Dialysis Center (ANorthwest@), a Fresenius facility.  Basey submitted her application to Northwest clinic manager, Hazel Shepherd, who was under the supervision of Eugenia de los Reyes, the area manager for Biomedical Applications of Texas, Inc.  According to Basey, Shepherd offered her the position, and Basey was to meet with de los Reyes the following day to negotiate her hourly wage.  When Basey arrived home, however, she received a call and was informed that the appointment had been cancelled.  Basey then called Shepherd and asked why the appointment was cancelled.  According to Basey, Shepherd said de los Reyes had told Shepherd not to hire Basey because she was formerly employed by DaVita, had a back injury, and filed a complaint against DaVita.

Basey asserts that she called Shepherd again. This time she recorded the conversation.  According to Basey, Shepherd stated de los Reyes told Shepherd not to hire Basey because she recognized her name and she had Afiled a lawsuit against DaVita and a worker=s compensation or something like that. And that [she] had something legally pending against them.@  Shepherd denied having talked with Basey about DaVita.  According to de los Reyes, there was no job opening at Fresenius by the time Basey applied.

Basey sued DaVita, Inc., d/b/a Total Renal Care, and Nelda Boatwright (collectively, ADaVita@) and Fresenius Medical Care Holding, Inc., d/b/a Fresenius Medical Care North America d/b/a Northwest Houston Dialysis and Biomedical Applications of Texas, Inc. (collectively, AFresenius@) for discrimination, retaliation, and various torts.  DaVita and Fresenius filed separate motions for summary judgment.  In their motions, both DaVita and Fresenius asserted traditional and no evidence grounds.

In her response, Basey stated she was pursuing only the following claims against DaVita: workers= compensation retaliation, disability discrimination, failure to provide reasonable accommodation, and retaliation.  She also stated she was pursuing only the following claims against Fresenius:  disability discrimination and retaliation.  She also objected to portions of DaVita=s and Fresenius=s summary judgment proof.

DaVita and Fresenius replied and objected to portions of Basey=s proof.  The trial court denied all of Basey=s objections.  The court sustained objections to selected paragraphs of Basey=s affidavit, EEOC documents pertaining to Basey=s complaint against Northwest, a letter from DaVita=s counsel to an EEOC investigator, and the transcript of the telephone conversation Basey purportedly recorded.

Without stating its grounds, the trial court granted DaVita=s and Fresenius=s summary judgment motions.  The court dismissed with prejudice all of Basey=s claims against DaVita and Fresenius.

II.  Discussion

Basey lists the following Aissues@ on appeal: (1) AThree charges of discrimination took place by Appellees= [sic] toward Appellant@; (2) AEqual Employment Opportunity Commission Determination Letter@; and (3) AFresenius Medical Care reguarded [sic] Appellant as being disabled and a job opening in 2005.@  We interpret Basey as challenging the trial court=s grant of summary judgment in favor of DaVita and Fresenius.

When, as here, the trial court does not specify in its order the grounds on which it relied in granting summary judgment, we must affirm the summary judgment if any of the grounds presented is meritorious.  W. Invs., Inc. v. Urena, 162 S.W.3d 547, 550 (Tex. 2005); Pico v. Capriccio Italian Rest., 209 S.W.3d 902, 905 (Tex. App.CHouston [14th Dist.] 2006, no pet.).  Thus, to prevail on appeal, Basey must show that each of the movants= theories is meritless.  See Star‑Telegram, Inc. v. Doe, 915 S.W.2d 471, 473 (Tex. 1995).

DaVita and Fresenius moved for summary judgment on both traditional and no-evidence grounds.  After adequate time for discovery, a party may move for summary judgment on the ground 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. Tex. R. Civ. P. 166a(i); Urena, 162 S.W.3d at 550; Pico, 209 S.W.3d at 905.  The movant must state the elements as to which there is no evidence. Tex. R. Civ. P. 166a(i).  Unless the respondent produces summary judgment evidence raising a genuine issue of material fact, the trial court must grant the motion. Id.; Urena, 162 S.W.3d at 550; Pico, 209 S.W.3d at 905.

As set forth above, in response to DaVita=s summary judgment motion, Basey stated she was pursuing only her claims for workers= compensation retaliation, disability discrimination, failure to provide reasonable accommodation, and Aretaliation.@  In response to Fresenius=s motion, she stated she was pursuing only her claims for disability discrimination and retaliation.

Disability discrimination and failure to accommodate.  To prevail on her disability discrimination claim, Basey was required to show she (1) has a disability, (2) is qualified for the job she seeks, and (3) suffered an adverse employment decision solely because of her disability.  Turco v. Hoechst Celanese Corp., 101 F.3d 1090, 1092 (5th Cir.1996) (per curiam); Davis v. City of Grapevine, 188 S.W.3d 748, 757 (Tex. App.CFort Worth 2006, pet. denied).^[1]  Both DaVita and Fresenius alleged there was no evidence Basey was disabled as defined by the ADA.  On appeal, Basey does not challenge this ground nor point to summary judgment proof that would raise a material fact issue relative to this element of her claim.

In response to Basey=s failure-to-accommodate claim, DaVita contends there is no evidence of disability.  Basey=s failure to challenge the-no-evidence-of-disability ground defeats her challenge to summary judgment on the failure-to-accommodate claim.  See Blanks v. Sw. Bell Commc=ns, Inc., 310 F.3d 398, 402 (5th Cir. 2002) (concluding court  did not need to decide failure-to-accommodate claim when it had concluded plaintiff was not entitled to ADA protection because he had not raised a material fact issue on whether he was disabled).

Retaliation.  In the section of her live pleadings setting forth her causes of actions, Basey alleged only workers= compensation retaliation.  In her summary of the facts, however, she referred to retaliation for having filed a workers= compensation claim and for filing a charge of discrimination.  In her response to DaVita=s and Fresenius=s motions for summary judgment, Basey referred to workers= compensation retaliation and to retaliation generally.

To prove either a claim for workers= compensation retaliation or for retaliation for a protected activity, Basey had to prove a causal link between her conduct and the employer=s adverse action.  See Dias v. Goodman Mfg. Co., 214 S.W.3d 672, 676 (Tex. App.CHouston [14th Dist.] 2007, pet. denied) (explaining, under Texas Labor Code section 21.055, proscribing discrimination or retaliation in the workplace, employee must establish causal link between employee=s protected activity and employer=s adverse action); Benners v. Blanks Color Imaging, Inc., 133 S.W.3d 364, 369 (Tex. App.CDallas 2004, no pet.) (explaining, under Texas Labor Code sections 451.001 and .002(c), employee has burden of demonstrating causal link between discharge or discrimination and filing of workers= compensation claim).  In their summary judgment motions, DaVita and Fresenius alleged there was no evidence of a causal link between Basey=s filing of her workers= compensation and discrimination claims and their respective decisions to terminate, and not to hire, her.

On appeal, Basey does not refer this court to any evidence raising a fact issue that DaVita terminated her employment because she filed a workers= compensation claim.  Basey does argue there is evidence Fresenius (Northwest) declined to hire her because it learned of her injury and a discrimination charge she filed against DaVita after DaVita terminated her employment.^[2]  The only summary judgment proof she cites, however, consists of (1) the tape of the alleged telephone conversation between Basey and Shepherd, and (2) a February 9, 2006 EEOC determination in which the Commission found in favor of Basey on her claim against Northwest.  The trial court sustained DaVita=s and Fresenius=s objections to this evidence, and Basey does not provide argument or authority explaining how the trial court erred in this regard.  Accordingly, she has forfeited any objection to the trial court=s ruling.  See Tex. R. App. P. 38.1(h); San Saba Energy, L.P. v. Crawford, 171 S.W.3d 323, 338 (Tex. App.CHouston [14 Dist.] 2005, no pet.) (holding that, even though courts interpret briefing requirements reasonably and liberally, party asserting error on appeal still must put forth some specific argument and analysis citing record and authorities in support of party=s argument).

In conclusion, we hold Basey presented no evidence to support the element of disability, which was required to maintain her claims of disability discrimination and failure to accommodate, and presented no evidence to support the element of causation, which was required to maintain her claims of retaliation.  The trial court=s grant of DaVita=s and Fresenius=s motions for summary judgment is supportable on those grounds.  Accordingly, we overrule Basey=s three issues and affirm the trial court=s judgment.

/s/        Charles W. Seymore

Justice

Panel consists of Chief Justice Hedges and Justices Anderson and Seymore.

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^[1]   Because one purpose of the Commission on Human Rights Act is to bring Texas law in line with federal laws addressing discrimination, we may cite federal case law as authority.  Specialty Retailers, Inc. v. DeMoranville, 933 S.W.2d 490, 492 (Tex. 1996).

^[2] Even if one assumes Northwest knew Basey had filed a workers= compensation claim while at DaVita, Basey would not have a cause of action against Northwest for declining to hire her.  See Stoker v. Furr=s, Inc., 813 S.W.2d 719, 724 (Tex. App.CEl Paso 1991, writ denied) (holding predecessor to present workers= compensation statute did not create cause of action in absence of existing employer/employee relationship.)