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Click here for the full text of this decision FACTS:The appellant, Evelyn Little, challenges a summary judgment granted in favor of appellees, the Texas Department of Criminal Justice and executive director Gary Johnson, in his official capacity (collectively the TDCJ), in her suit against TDCJ alleging a violation of Chapter 21 of the Texas Labor Code. Chapter 21 provides that an employer commits an unlawful employment practice if the employer refuses to hire an individual on the basis of a disability. On the original appeal, the court held that the trial court did not err in granting the TDCJ’s summary judgment motion. The Texas Supreme Court reversed that judgment and held that “there [was] probative summary judgment evidence that, at the time of the adverse employment actions of which she complains, Little had a”physical impairment that substantially limit[ed] at least one major life activity.’ ” Pursuant to the Texas Supreme Court’s remand, the court considered the TDCJ’s second ground for summary judgment, “ that Little had no direct evidence of discriminatory intent, and that she could not raise an inference of discriminatory intent by proving that the TDCJ’s articulated reasons for its adverse employment actions against her were a pretext for discrimination.” HOLDING:Reversed and remanded. Little contends that the trial court erred in granting summary judgment for the TDCJ because the TDCJ knew that she had a disability and did not hire her as a food service manager because of her disability. The lower half of Little’s left leg was amputated after she suffered an accidental shotgun wound. Little wears a prosthesis on her left leg and, while able to walk, moves with a discernable limp. The court notes that, under the burden-shifting analysis, the plaintiff has the initial burden to come forward with a prima facie case of discrimination. Furthermore, more specific to Texas, a plaintiff pursuing a state-law claim under Chapter 21 must show that discrimination was a motivating factor in an adverse employment decision. The court finds that Little produced sufficient evidence to raise a fact issue regarding her prima facie case of discrimination, and that the TDCJ therefore was required to produce sufficient evidence to support a legitimate, nondiscriminatory reason for the adverse employment action. The court notes that in its summary judgment motion and attached evidence, the TDCJ asserted that it declined to hire Little because she was not the most qualified applicant each time she applied for a position as a food service manager. Therefore, because the TDCJ produced evidence to support a legitimate, nondiscriminatory reason for not hiring Little, the court holds that the presumption of discrimination created by Little’s prima facie showing is eliminated. Little challenges the TDCJ’s proffered justification for her discharge in two ways. First, she asserts that there is a fact issue as to whether she was better qualified than most of the applicants actually selected for the food service manager positions for which she applied. Second, she asserts that other evidence undermines the overall credibility of the TDCJ’s proffered justification. The court finds that Little’s summary judgment evidence shows that, for a majority of the positions for which she applied, the TDCJ documented her job-related experience as being greater than that of the selected applicants. The court determines that the summary judgment evidence does raise a fact issue as to whether Little was clearly better qualified than many of the selected candidates for the food service manager positions for which she applied. Moreover, considering the summary judgment evidence that Little had several more years of experience than many of the selected applicants for the 14 food service manager positions, that several of the TDCJ’s hiring personnel identified physical requirements for a position as food service manager when the job descriptions required none, that at least two of Little’s interviewers were very much aware of her limp at the time of Little’s interviews, that the TDCJ conceded that Little was minimally qualified for the positions and that Little was not hired after she applied 14 times within a three-year span, the court concludes that a reasonable fact-finder could infer that the TDCJ’s proffered explanation was unworthy of credence and that the TDCJ intentionally discriminated against Little. Consequently, the court sustains Little’s issue regarding pretext. OPINION:Jennings, J.; Nuchia, Jennings, and Alcala., JJ.

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