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Click here for the full text of this decision FACTS:Appellant James B. Davis appeals the trial court’s granting of summary judgment in favor of appellee, the city of Grapevine. Davis was formerly employed as a firefighter by the city. He was diagnosed with multiple sclerosis. Dr. Susan Blue, a neurologist, treated Davis. Blue sent a letter to the city describing Davis’ condition, stating that Davis had a mild difficulty with balance, he would not consistently be able to climb ladders, and he could not consistently be required to drive emergency vehicles. She sent another letter to the city regarding Davis’ condition, explaining that although he was able to perform well on many occasions, there could be instances where he would be limited in terms of balance, rapid response ability and coordination, and therefore, he should be considered disabled in performing his duties as a firefighter and paramedic. Davis asserts that he was forced to resign from working for the city, alleging discrimination due to his disability and age. He filed suit, requesting relief under the Texas Commission on Human Rights Act. He contends that his supervisors refused to reassign him to another position and refused to offer any other accommodation. The city filed a traditional motion for summary judgment, asserting that Davis could not perform the essential functions of his position, he was not subject to an adverse employment action, he was not legally disabled, the city offered Davis a reasonable accommodation, the city had a legitimate, non-discriminatory reason for not creating a new position for Davis, and Davis could not establish an age discrimination claim. After a hearing, the trial court granted the city’s motion for summary judgment and overruled the city’s objection to Davis’ summary judgment proof. This appeal followed. HOLDING:The court reverses and remands the trial court’s judgment as it relates to Davis’ causes of action for failure to reasonably accommodate and constructive discharge. The court affirms the portion of the trial court’s judgment as it relates to Davis’ cause of action for age discrimination. In its cross-point, the city asserts that the controverting affidavit filed by Davis should be stricken because the affidavit, which was written subsequent to Davis’ deposition, contradicts prior deposition testimony without providing an explanation for the changes. Though noting that several courts of appeals have adopted the sham affidavit doctrine, the court continues to apply the rule set forth by the Texas Supreme Court in Randall v. Dallas Power & Light Co., 752 S.W.2d 4 (Tex. 1988), that when conflicting inferences may be drawn between a party’s summary judgment affidavit and his deposition on matters of material fact, a fact issue is presented. The court holds that the trial court did not err in overruling the city’s objection to Davis’ affidavit. Davis contends that the burden-shifting test as set forth by McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817 (1973) has no application to a failure-to-accommodate claim. The court holds that the McDonnell Douglas burden-shifting test does not apply to a claim that the employer has failed to make a reasonable accommodation. Davis contends that he is a person with a disability under Texas Labor Code Chapter 21, and that the city has failed to prove as a matter of law that he does not suffer from a substantial impairment affecting a major life activity. Davis contends that he is disabled within the meaning of Chapter 21 because his multiple sclerosis substantially limits him in a number of major life activities, including walking, running, lifting, climbing stairs and working. Davis contends that because he cannot walk fast without falling down, while the average person can do so, he is substantially limited in his ability to walk as compared to the average person. Although Davis experiences some impairment in his ability to walk, it does not rise to the level of a substantial impairment as required by the ADA and Chapter 21. The court holds that running constitutes a major life activity under Chapter 21. Because Davis presented competent controverting evidence raising a genuine issue of material fact with regard to whether he has a physical impairment that substantially limits his ability to run, the city failed to prove as a matter of law that Davis is not legally disabled. Davis relies upon Burch v. City of Nacogdoches, 174 F.3d 615 (5th Cir. 1999), to support his position that he could perform the essential functions of his firefighter/paramedic position with reasonable accommodation. Burch was a firefighter who was injured on the job. Davis relies on language found in a footnote of the Burch opinion to support his contention that he could perform the essential functions of the firefighter/paramedic position with a reasonable accommodation because the city assigned other firefighter/paramedics to light-duty jobs on a long-term basis, while denying such an assignment to Davis. Although Davis has failed to prove that the light-duty firefighter position was available, he has provided evidence that the city had accommodated other firefighter/paramedics in the past by assigning them to light-duty jobs, and the city acknowledges that it had transferred these firefighter/paramedics to light-duty positions. The court holds that the city failed to prove as a matter of law that Davis could not perform the essential functions of his position with a reasonable accommodation. The city did provide Davis with a letter of recommendation to the open telecommunications position; however, Davis was told that he would have to submit an application to be considered for this position, which he did. The court holds that the city failed to prove as a matter of law that Davis cold not perform the essential functions of his position with a reasonable accommodation. Chapter 21 provides that it is an unlawful employment practice for an employer to fail to make a reasonable accommodation for an employee, unless the employer can demonstrate that such an accommodation would impose an undue hardship. The city never moved for summary judgment based on this affirmative defense, therefore, issue is not properly before the court. The court concludes that the city failed to prove as a matter of law that Davis was not subjected to an adverse employment action in constructively discharging him. The court concludes that the city failed to prove as a matter of law that Davis was not subjected to an adverse employment action in constructively discharging him. Blue’s deposition testimony establishes that Davis would be unable to consistently climb ladders or drive emergency vehicles. Additionally, Davis asserts that he cannot walk fast or run without falling down. Because the summary judgment proof establishes that Davis is not qualified for the position, the city has conclusively negated at least one element of Davis’ prima facie case of age discrimination. OPINION:Holman, J.; Holman, Walker and McCoy, JJ. Walker, J. concurs without opinion.

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