Injured worker’s claims get partially revived by 4th Court of Appeals.


Jose Luis Pena v. County of Starr, 04-12-00462-CV (Tex. App. – San Antonio, December 18, 2013).

This is an appeal from the granting of a summary judgment in an employment case involving disability, discrimination, retaliation, and FMLA claims which the 4th Court of Appeals affirmed in part and reversed in part.

Pena was hired as an animal control officer by Starr County who was injured on the job. While undergoing treatment it was discovered he had a life-threatening condition and would miss additional work to undergo surgery. Complications arose, and while hospitalized the County terminated his position. At the time of termination he was 58 years old. Pena sued, however, the trial court granted the County’s summary judgment motion. Pena appealed.

As to the FMLA and ADA claims, the County argued Pena did not file a request for FMLA leave before his surgery.  However, the San Antonio Court of Appeals pointed out that that procedure is required for “foreseeable” leave. Pena was only supposed to be gone a week, but complications during the surgery kept him away from work much longer. Pena, through is daughter, informed the County as soon as he felt practical under the circumstances. Pena raised a fact issue as to the timeliness of the notice.  The court also analyzed the relation-back doctrine as to the statute of limitations defense under the FMLA and determined it applied.

As to the other claims, Pena did not point to any evidence he was replaced by a younger employee or that there is a connection to his age. His testimony established he believes he was terminated because of his injury and condition. So, summary judgment was proper for the age discrimination claims.  As far as the disability discrimination claims under Texas law are concerned, the court noted that while the County may have established the back injury was not a disability, the life-threatening cardio disease could have been.  The County did not address this issue, which makes summary judgment improper. Finally, the court agreed with the County that the trial court lacked subject matter jurisdiction for the Worker’s Comp. retaliation claim since sovereign immunity has not been waived for such claims.

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